As discussed in Section 188.8.131.52, state Section 401 Water Quality Certification is required under the federal CWA for certain activities in wetlands and waters. Section 401 of the CWA gives states and tribes the authority to review projects that require federal licenses or permits and that might result in a discharge to state or tribal waters, including wetlands. For a wind energy facility, such federal approval might include a permit from the USACE pursuant to Section 404 of the CWA or Section 10 of the Rivers and Harbors Act. The purpose of Section 401 review is to ensure that a project will comply with state or tribal water quality standards and other appropriate requirements of state or tribal law.
Section 401 Certification should generally not cause delays in project approval. In most cases, Section 401 Certification review is conducted at the same time as the federal agency review. Many states have established a joint permit process to ensure this occurs. For Section 404 permits, the USACE has developed Nationwide and Regional Programmatic General Permits to streamline the approval process for specific activities that disturb a minimum acreage of jurisdictional wetlands (i.e., where an individual wetland permit is not required). These Nationwide and General permits may already have been approved, denied, or partially denied by the applicable state agency, including
Many states, such as Iowa and Minnesota, have developed joint applications that are submitted to USACE and the state simultaneously for a consolidated review of wetland jurisdiction and the need for permitting.
Example completing the Section 401 review. Thus, if a state has approved the Nationwide or General permit, no further state review is required for Section 401 Certification; otherwise, varying degrees of state review and certification are required.
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