Section 401 Water Quality Certification

The Department’s Water Quality Planning Section administers the Section 401 Water Quality Certification (WQC) Program in accordance with Section 401 of the Clean Water Act (CWA) 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. There are four potential responses from DWEE to a 401 certification request. They are as follows:

1. Activities comply with Title 117 and certification is granted.
2. Activities could potentially violate Title 117, so conditions for compliance will be issued with the certification.
3. Activities will violate Title 117 and certification is denied. 
4. The Department waives its opportunity to provide certification.

The U.S. Army Corps of Engineers (USACE) 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. A 401 certification is only provided in response to an application for a federal permit or license.

While USACE has jurisdiction over wetlands and waterbodies identified as federally jurisdictional (Waters of the United States, or WOTUS), DWEE has authority and responsibility under Title 117 for all non-jurisdictional wetlands and waterbodies in Nebraska. These waters are known as “Waters of the State” or “WOTS” for short. Dredge and fill activities in WOTS are subject to the Anti-degradation Clause of Title 117.

The DWEE recognizes that landowners may want to develop land, and those projects have the potential to impact WOTS. WOTS include all streams, lakes, ponds, marshes, wetlands, watercourses, waterways, natural or artificial, situated wholly or partly within the State of Nebraska. Wetlands, including isolated wetlands, are assigned beneficial uses with narrative and numerical water quality criteria in Title 117, Chapter 7. DWEE does not have a permitting program for the discharge of dredge and fill material into Waters of the State, but works with project developers to evaluate potential impacts and identify opportunities to mitigate those impacts through a process known as a Letter of Opinion (LOO).

A Letter of Opinion (LOO) is not a permit authorizing a discharge into WOTS but provides a professional opinion regarding whether the project is likely to meet the standards established in Title 117. A LOO may include recommendations such as best management practices or wetland mitigation which a project developer may implement. Requesting a LOO is voluntary, but DWEE encourages project developers to work with the department prior to conducting dredge and fill activities.

For both 401 WQCs and LOOs, DWEE applies the 2008 Mitigation Rule (33 CFR 332) for state mitigated waters and recommends mitigation for impacts to non-jurisdictional wetlands and waterbodies (WOTS) utilizing the 0.1-acre threshold for wetlands and the 0.03-acre threshold for waterbodies set forth by the United States Army Corp of Engineers (USACE).

2023 Clean Water Act 401 Rule

The EPA issued a Clean Water Act 401 Rule on September 27, 2023. This rule has been in effect since November 27, 2023. DWEE’s 401 guidance reflects specifications laid out in this rule.