Permit Fact Sheet
What is the purpose of these certifications?
A 401 Water Quality Certification is required under the federal Clean Water Act for certain activities in wetlands and waters. This law gives states the authority to review projects that must obtain federal licenses or permits and that result in a discharge to state waters, including excavating and fill in wetlands. The purpose of state 401 review is to ensure that a project will comply with state water quality standards and other appropriate requirements of state law. Statutory authority for this certification is stated in the federal Clean Water Act, 33 USC 1341, and the Massachusetts Clean Water Act, M.G.L. Chapter 21, sections 26-53. Regulatory authority for this certification is found in 314 CMR 9.00. Water quality standards referenced in the certification are found in 314 CMR 4.00.
- Who must apply?
All persons who propose any activity that results in a discharge from fill or excavating in waters subject to regulation by the U.S. Army Corps of Engineers, Federal Energy Regulatory Commission or other federal agency, must obtain a 401 Water Quality Certification.
Examples of activities requiring certification include filling and excavating in bordering and isolated vegetated wetlands or waters. If no federal permit is needed for an activity, then no 401 certification is required from MassDEP. For information on the applicability of Section 404 of the Clean Water Act, or Section 10 of the Rivers and Harbors Act, the applicant is advised to consult the Corps of Engineers at 1-800-362-4367.
All persons who propose dredging greater than 100 cubic yards should complete the 401 Water Quality Certification for Dredging and Dredged Material Disposal application form which is enclosed in a separate application kit. There are two categories of water quality certification which concern discharge, fill, and excavation projects: major project (BRP WW 10) and minor project (BRP WW 11) certifications. BRP WW 10 was formerly BRP WP 39, and BRP WW 11 was formerly BRP WP 40.
Major Fill/Excavation Project Certification (BRP WW 10):
Major Fill/Excavation Project Certification includes projects with:
• A cumulative loss of more than 5,000 square feet of bordering and isolated vegetated wetland and land under water, except for routine maintenance projects meeting the criteria of 314 CMR 9.04(5) and agricultural limited projects meeting the criteria of 314 CMR 9.04(1);
• A loss of any amount of vegetated wetland or land under water involving outstanding resource waters, rare species in an isolated vegetated wetland, salt marsh, an individual 404 permit, or activities where MassDEP invokes discretionary authority pursuant to 314 CMR 9.04(11)to require an application for an individual water quality certification.
Minor Fill/Excavation Project Certification (BRP WW 11):
Minor project certification includes projects with:
• A cumulative loss of up to 5,000 square feet of bordering and isolated vegetated wetland and land under water involving real estate subdivisions required to file applications for individual water quality certifications under the provisions of 314 CMR 9.04(3), activities exempt under M.G.L. Chapter 131, section 40, under the provisions of 314 CMR 9.04(4), or any activity subject to the provisions of 314 CMR 9.04(13);
• A cumulative loss of more than 5,000 square feet of vegetated wetland or land under water involving routine maintenance meeting the criteria of 314 CMR 9.04(5);
• Any cumulative loss of vegetated wetland or land under water involving an agricultural limited product meeting the criteria of 314 CMR 9.04(10).
Projects Excluded from 401 Review:
The following project categories will be certified by MassDEP provided the specified conditions of 314 CMR 9.03 are met. No Water Quality Certification application need be filed for such projects unless the impacts to resource areas, or the project size increases from the description filed with the Notice of Intent, or there are any inaccuracies therein, in which case the applicant must notify MassDEP and request a determination that the criteria of 314 CMR 9.03 have been met before the activity begins.
• Projects not listed above as requiring a major or minor project certification, provided that such projects: have obtained a Final Order of Conditions permitting work which results in the loss of no more than 5,000 square feet cumulatively of bordering and isolated vegetated wetlands and land under water; meet the other conditions contained in 314 CMR 9.03(1).
• Beach nourishment activities with a Final Order of Conditions under the Wetlands Protection Act.
• Dredging and dredged material disposal projects not listed above as requiring a major or minor project certification, provided that a Final Order of Conditions has been issued.
• Agriculture or aquaculture exempt under the Wetlands Protection Act, in accordance with the provisions 314 CMR 9.03 (4).
• Projects in isolated vegetated wetlands not subject to the Wetlands Protection Act which will result in the loss of up to 5,000 square feet cumulatively of bordering and isolated vegetated wetlands and land under water, provided that there is no discharge of dredged or fill material in any habitat for rare and endangered species or to any Outstanding Resource Water.
• Activities that are temporary in nature, have negligible impacts, and are necessary for planning and design purposes such as the installation of monitoring wells, exploratory borings, sediment sampling, and surveying, provided that the requirements of 314 CMR 9.04 (6) are met.
- What other requirements should be considered when applying for these certifications?
A copy of the Application Form must be sent to the conservation commission in the city or town where the work will occur.
Projects requiring 401 Water Quality Certification generally also are subject to the WPA (MGL c. 131, sec. 40) and its regulations (310 CMR 10.00). In addition, some projects may require MEPA review. Please carefully examine 301 CMR 11.00, the MEPA Regulations, to determine if your project exceeds the MEPA review thresholds, or for more information contact: MEPA Unit, Executive Office of Environmental Affairs, 100 Cambridge Street, Boston, MA 02202, 617-727-5830). MassDEP cannot complete technical review of the permit application until the MEPA process has been concluded. Copies of MEPA filings and certificates (with reference to any applicable Transmittal numbers) should be sent to the appropriate Regional Office.
Applicants proposing projects in Outstanding Resource Waters are required to publish notice in the Environmental Monitor, pursuant to the MEPA regulations, 301 CMR 11.00.
State agencies may not issue state permits until 60 days after a Final Environmental Impact Report, if required, has been noticed in the Environmental Monitor (301 CMR 11.20(1).
Note: These additional requirements are intended to serve as a guide to the applicant. It does not necessarily include all additional requirements.
- What are the application fees for these certifications?
Permit Application Timelines and Fees Schedule
- What is the Primary Permit Location? What is the Reserve Copy Location?
Primary Permit Location:
For all applications:
Department of Environmental Protection
Division of Wetlands
Find Your Region
There are no reserve copy locations.
- Where can I get a copy of the timelines?
Permit Application Timelines and Fees Schedule
- What is the annual compliance fee?
There is no annual compliance assurance fee for water quality certifications.
- How long are these certifications in effect?
The water quality certification is in effect as long as the federal permit which required it, unless there is a term stated in the certification.
- How can I avoid the most common mistakes made in applying for these certifications?
a. Be sure all bordering and isolated vegetated wetlands and land under water boundaries are clearly delineated on project plans submitted with the Notice of Intent, or separately if the project is not subject to 310 CMR 10.00.
b. Provide separate calculations for the amount of square feet of each resource type (bordering vegetated wetland, isolated vegetated wetland and land under water) proposed to be lost. Provide the cumulative total square feet of the resource areas to be lost. The area proposed to be lost from the impacts of the activity, which may include filling, draining, excavating or flooding, should be calculated separately from the area proposed to be restored or replicated.
c. Be sure construction methods and sequence of activities in wetlands and waters are clearly described.
d. Be sure all applicable supplemental documents are provided with your application, including project plans and MEPA certificates.
e. Submit fee and one copy of the MassDEP Transmittal Form to: Department of Environmental Protection, P.O. Box 4062, Boston, MA 02211.
- What are the regulations that apply to these certifications and where can I get copies?
These regulations include, but are not limited to:
a. 401 Water Quality Certification Regulations, 314 CMR 9.00.
b. Surface Water Quality Standards, 314 CMR 4.00.
c. Wetlands Protection Act Regulations, 310 CMR 10.00.
d. Timely Action Schedule and Fee Provisions, 310 CMR 4.00.
e. Rules for Adjudicatory Hearings, 310 CMR 1.00.
f. Massachusetts Environmental Policy Act Regulations, 301 CMR 11.00.
These may be purchased online, in person, or by mail at the Massachusetts State Bookstore