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Regulatory and Permitting Information Desktop Toolkit

Montana 401 Water Quality Certification (14-MT-d)

A person may not conduct or commence any construction for an activity requiring state water quality certification under the Federal Clean Water Act (33 USC § 1251 et seq.) Section 401 and Montana Codes Annotated Title 75, Chapter 5, unless the Montana Department of Environmental Quality (DEQ) issues a water quality certification. The Montana DEQ has developed administrative rules for water quality certification under Administrative Rules of Montana 17.30.101 through 109.

401 Water Quality Certification Process

14-MT-d.1 – Application for Certification and Associated Documents

The developer must submit an application to the DEQ that includes:

  • The name and address of the applicant;
  • A description of the facility or activity and of any discharge that may result from the facility or activity;
  • A description of the function and operation of equipment, facilities, activities, or practices to minimize or to treat wastes or other effluents that the facility may discharge;
  • The date or dates on which the developer proposed to begin and end the activity and the date on which the discharge will take place (if known); and
  • A description of the methods the developer will use to monitor the quality and characteristics of the discharge and the operation of equipment, facilities, or activities employed in the treatment of control of pollutants.

14-MT-d.2 to 14-MT-d.3 – Review Application for Completeness

The DEQ reviews the application for completeness within 30 days of receipt of the application. If the developer’s application is not complete, the DEQ notifies the applicant of any additional materials reasonably necessary for review of the application. The DEQ accepts the application if complete and notifies the developer. Additionally, if the DEQ does not make a completeness determination within 30 days of receiving the application or within 30 days after receiving supplemental materials, the application is automatically deemed complete.

14-MT-d.4 – Review Application Materials

The DEQ reviews the application and determines whether to deny certification, issue certification, or issue conditional certification based on any effluent limitations or water quality standards stated in ARM Title 17, chapter 30. The DEQ may waive certification if the DEQ finds that the activity will cause minimal or no impacts to the water quality of the state of Montana or if the DEQ requires an application for a Montana pollutant discharge elimination system permit under ARM Title 17, chapter 30, subchapter 13; a ground water pollution control system permit under ARM Title 17, chapter 30, subchapter 10; a short-term exemption from water quality standards under MCA 75-5-308; or a short-term narrative water quality standard under MCA 75-5-318.

14-MT-d.5 – Tentative 401 Water Quality Certification Determination

The DEQ must notify the application, the federal permitting or licensing agency, and the regional administrator of the EPA (Region VIII) of the DEQ’s tentative determination to either issue, issue with conditions, or deny water quality certification within 30 days of receiving a completed application. If the DEQ does not notify the developer of its tentative determination within 30 days after the application is complete, the DEQ is deemed to have waived water quality certification. The DEQ’s tentative determination must be in writing and explain the reason for issuing, issuing conditionally, or denying the application. The tentative determination must include the name and address of the developer and a statement that the DEQ’s determination is based on an evaluation of the information contained in the application or that the DEQ examined the application and other information submitted by the developer. If the DEQ’s tentative determination is to conditionally issue the water quality certification, the DEQ must include a statement that the construction and operation of the facility will not violate Montana’s effluent limitations and a statement of conditions that the DEQ deems necessary for the developer to discharge.

14-MT-d.6 – Publish Notice of Determination and Allow for Comment

The DEQ must publish notice of the tentative determination to issue, issue conditionally, or deny the application. The DEQ must mail the notice to any person on request and must publish a legal notice once a week for two consecutive weeks in a newspaper of general circulation that is circulated in the county in which the developer proposes the activity.

14-MT-d.7 – Comment on Determination

The public may submit written comments on the application for 30 days after the issuance of public notice.

14-MT-d.8 to 14-MT-d.9 – Does the Developer Request a Hearing or Does the DEQ Determine there is Significant interest in the Determination

If the DEQ determines that significant public interest exists in the proposed action, the DEQ must set a public hearing.

14-MT-d.10 – Comment on Hearing

If the DEQ holds a public hearing, the public may comment on the hearing and tentative determination for 14 days after the date of the public hearing.

14-MT-d.11 – Make Final Determination

The DEQ must make a final determination to issue, issue with conditions or deny water quality certification within 30 days after the close of the public comment period.

14-MT-d.12 – 401 Water Quality Certification

If the DEQ determines that the activity will not exceed effluent limitations set in ARM Title 17, chapter 30 or will not exceed the effluent limitations with DEQ imposed conditions, the DEQ will issue the developer water quality certification for the project.

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