South Dakota Department of Agriculture and Natural Resources
401 Certification Procedures

Section 401 of the federal Clean Water Act requires states to review projects and federal permits to ensure they will not impact the stream quality or violate our Surface Water Quality Standards. The South Dakota Department of Agriculture and Natural Resources conducts this review in South Dakota and issues a 401 certification.

1. The project proponent must request a pre-filing (pre-certification) meeting with DANR at least 30 days before submitting a certification request. This pre-filing meeting request may be in the form of an email, phone call, or written letter. The project proponent must include the project name and appropriate contact information, the project location, a project construction and operation activities summary, an estimated amount and type of discharge, the waterbodies affected, and the anticipated start work date. Based on the size, complexity, and political scope of the project, DANR may either participate in the prefiling meeting or waive that requirement. DANR may choose to waive the 30-day time period between the pre-filing notice and the certification request at DANR's discretion. This document may be provided to the project proponent to outline the process and specify the required information to ensure a complete application is received.

2. The project proponent will submit a 401 Certification request to DANR. This request will be written, dated, and signed. The certification request must contain at a minimum the following information to be considered a complete application:

   1. A copy of the federal license or permit application submitted to the federal agency;
   2. Any readily available water quality-related materials that informed the development of the federal application, including base water quality data, sediment and erosion control plans, site restoration plans, mitigation plans, and other studies;
   3. A summary of the operational objectives of any future facility/infrastructure that will occur as a result of the discharge (facility/infrastructure operation);
   4. A description of any means and methods proposed to monitor the discharge and the equipment or measures planned to treat, control, or manage the discharge;
   5. A description of the proposed activity, including the purpose of the proposed activity and the type of discharge that may result from the proposed activity;
   6. A map or diagram of the proposed activity site, including the proposed activity boundaries in relation to streets, roads, and highways; including section, township, and range boundaries.
   7. GIS files, unless specifically waived;
   8. A description of current site conditions, including relevant site data, photographs that represent current site conditions, or other relevant documentation;
   9. The dates on which the proposed activity is planned to begin and end; and if known, the approximate dates on when any discharges may occur;
   10. A list of all other federal, interstate, tribal, state, territorial, or local agency authorizations required for the proposed activity and the current status of each authorization;
   11. Documentation that a pre-filing meeting request was submitted to DANR at least 30 days before submitting the certification request (including the pre-filing meeting request date). If the project proponent submits the certification request sooner than 30 days after requesting the pre-filing meeting, DANR may begin working on the 401 certification request, but the “reasonable period of time” will start at the end of the 30 days.
3. DANR will send a confirmation receipt of certification request to the project proponent.
4. If the federal agency (Corps, FERC, etc.) does not publish a joint public notice with DANR, then DANR will provide a public notice. Refer to ARSD 74:51:01:64, 74:51:01:64.01-02 for notice requirements based on the type of permit/license that is requiring a 401 certification. The public notice must include the following:
   1. A brief description of the proposed activity and a summary of the information required in the application;
   2. A period of time, at least 15 days from the date of mailing, within which interested parties may express their views concerning the permit application; and
   3. A statement that any person may request, in writing, within the comment period specified in the notice, that a public hearing pursuant to chapter 74:50:02 be held to consider the application. Requests for public hearings must state the reasons for holding a public hearing.
5. The federal agency and DANR will set a reasonable period of time to make a decision, on a case-by-case basis, not to exceed one year. ARSD 74:51:01:65 states the DANR Secretary shall provide certification, denial, or waiver to the project proponent within 60 business days after receipt of a complete application unless the Secretary is granted an extension by the responsible federal agency. DANR will comply with the state rule and use 60 business days as the reasonable period of time unless DANR needs an extension. If DANR and the federal agency cannot agree on a reasonable period of time for the extension, DANR will use the default six-month period of time. If DANR and the federal agency agree on an extension, the reasonable period of time will not exceed one year.
6. DANR will review the application and determine if water quality certification will be granted, denied, granted with conditions, or waived. The Clean Water Act section 401 certification scope is limited to evaluating water quality impacts from the activity, including the activity's construction and operation. DANR will focus on assuring that a discharge from a federally licensed or permitted activity will comply with state laws and requirements under CWA sections 301, 302, 303, 306, & 307 for discharges into waters of the United States AND will consider potential surface water impacts related to the proposed project operation. All requirements listed below must be completed or the permit or condition may be waived by the federal agency.
   1. Granting 401 certification will be in writing and include:
      1. a statement that DANR is granting certification;
      2. identification of the applicable federal permit or license;
      3. a statement that there is reasonable assurance that the activity (construction and operation) will be conducted in a manner that will not violate applicable water quality standards; and
      4. a statement that DANR complied with state public notice procedures established pursuant to Clean Water Act section 401(a)(1).
   2. A 401 certification with conditions will be in writing and include:
      1. all items required in 6(a)(ii-iv);
      2. a statement that DANR is granting certification with conditions;
      3. a statement explaining why the condition is necessary to assure that the proposed project discharge will comply with water quality requirements; and
      4. a citation to federal or state law that authorizes the condition.
   3. A 401 certification denial will be in writing and include:
      1. a statement that DANR is denying certification;
      2. identification

         Download DANR 2021/2022 Statewide 401 Water Quality Certification for USACE 404 Nationwide Permits

         For more information, contact Shannon Minerich at (605) 773-3351.