Section 401 Water Quality Certification

The Department’s CWA 404 Section administers the Section 401 Water Quality Certification Program in accordance with Section 401 of the Clean Water Act and Title 120 – Rules and Regulations Pertaining to Certification by the State of Nebraska. The program evaluates applications for federal section 404 permits, and some licenses, authorizing dredge and fill activities in surface waters.

The Department's thorough review determines whether the proposed activity complies with Title 117 – Nebraska Surface Water Quality Standards. If the activity is likely to violate the standards, conditions for complying with Title 117 will be issued with the certification, or certification will be denied. The U.S. Army Corps of Engineers Section 404 Dredge and Fill Permits and Federal Energy Regulatory Commission licenses are examples of federal regulatory programs that require state Water Quality Certification before the permit or license can be issued. The Department has developed a guidance document explaining the 401 certification process in Nebraska.

While the U.S. Army Corps of Engineers has jurisdiction limited to wetland features and waterbodies identified as federally jurisdictional waters, NDEE does have authority and responsibility under Title 117 for all surface waters in Nebraska, including wetlands. Dredge and fill activities in “Waters of the State” are subject to the Anti-degradation Clause of Title 117.

We encourage project proponents to join us in working together to conserve these valuable resources through consulting with NDEE when waters of the state that are outside of waters of the United States may be impacted.

2023 Clean Water Act 401 Rule

The EPA has issued a new Clean Water Act 401 Rule on September 27, 2023. This rule will be effective on November 27, 2023. NDEE will be coming out with a new guidance document to reflect the rule change.