APPENDIX Q 

Wetlands and 401 Certification: 

Opportunities and Guidelines for 

States and Eligible Indian Tribes 

WATER QUALITY STANDARDS HANDBOOK 

SECOND EDITION 
Office of Water 

(A-104F) 

EPA 

United States 

Environmental Protection 

Agency 

April 1989 

Wetlands And 

401 Certification 

Opportunities And 

Guidelines For States 

And Eligible Indian Tribes 
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 

WASHINGTON, D.C. 20460 

OFFICE OF 

WATER 

NOTE TO THE READER 

I am pleased to introduce this handbook, “Wetlands and 401 Certification,” 

developed by EPA’s Office of Wetlands Protection. This document examines the 

Section 401 State water quality certification process and how it applies to wetlands. We 

strongly encourage States to use this handbook as one reference when establishing a 

wetlands protection program or improving wetlands protection tools. 

Protection of wetland resources has become an important national priority as 

evidenced by President Bush’s 1990 Budget statement calling for “no net loss” of 

wetlands. In addition, the National Wetlands Policy Forum included a recommendation 

in their 1988 report which says that States should “make more aggressive use of their 

certification authorities under Section 401 of the Clean Water Act, to protect wetlands 

from chemical and other types of alterations”. This handbook is intended to help States 

do just that. 

EPA would like to work with States who wish to delve into 401 certification for 

wetlands. You will find EPA Regional contacts listed in Appendix A of the document 

The office of Wetlands Protection plans to provide additional technical support 

including guidance focused on wetland-specific water quality standards. 

It is very important to begin now to address the loss and degradation of this 

nation’s wetlands. That is why 401 certification is a perfect tool, already in place, for 

States just getting started. It can also help States fill some gaps in their own statutory 

authorities protecting wetlands. States can make great strides using their existing 401 

certification authorities, while developing the capability and the complementary 

programs to provide more comprehensive protection for wetlands in the future. 

Sincerely, 

David G. Davis 

Director 

Office of Wetlands Protection 
ENDNOTES 

1. The state water quality certification process is authorized by 

Section 401 of the Clean Water Act, 33 U.S.C. 51341. 

2. A Tribe is eligible for treatment as a State if it meets the 

following criteria: 1) it is federally recognized; 2) it carries 

out substantial government duties and powers over a Federal 

Indian Reservation; 3) it has appropriate regulatory authority 

over surface waters of the reservation: and 4) it is reasonably 

expected to be capable of administering the relevant Clean Water 

Act program. EPA is currently developing regulations to 

implement Section 518(e) for programs including Section 401 

certification which will provide further explanation of the 

process tribes must go through to achieve state status. In 

addition, the term nstatem also includes the District of 

Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, 

Guam, American Samoa, the Commonwealth of the Northern Wariana 

Islands, and the Test Territory of the Pacific Islands. 

3. The National Wetlands Policy Forum, chaired by Governor Kean 

of New Jersey, represents a very diverse group of perspectives 

concerned with policy issuee to protect and manage the nation's 

wetland resources. The goal of the Ponm was to develop sound, 

broadly supported ret onendations to improve federal, state, and 

local wetlands policy. The Forum released its recommendations in 

a report, "Protecting America's Wetlands: An Action Agenda" which 

can be obtained from The Conservation Foundation, 1250 24th 

Strut, NW, Washington, D.C. 20037. 

4. 33 U.S.C. 94.1313 (c)(2)(A). 

5. Section 301(b)(l)(c) of the Clean Water Act. 

6. If the applicant is a federal agency, however, at least one 

federal court has ruled that the state's certification decision 

ray be reviewed by the federal courts. 

7. 33 C.P.R. 5328.3 (Corps regulations): 40 C.P.R. 5232.2(q) (EPA 

regulations). 

8. For instance, except for wetlands designated as having unusual 

local importance, New York's freshwater wetlands law regulates 

only those wetlands over 12.4 acres in size. 

9. Alaska Administrative Code, Title 6, Chapter 50. 

i 
10. Kentucky EnVirOIIm@ntal Protection Act, KRs 224.005(26). 

11. Tennessee Water Quality Control Act, 569-3-103(29). 

12. Massachusetts Clean Waters Act, Chapter 21, 526. 

13. K.R.S. 224.005(28)(Kentucky enabling legislation defining 

waters of the state); 401 K.A.R. 5:029(l) (bb) (Kentucky water 

quality standards defining surface waters): Ohio Water Pollution 

Control Act, 56111.01(H)(8nabling legislation defining waters of 

the state) ; Ohio Administrative Code, 537450l-OZ(DDD) (water 

quality standards defining surface waters of the state). 

14. Xassachusetts Clean Waters Act, Chapter 21, 526 (enabling 

legislation defining waters of the state): 314 Code of Mass. 

Rags. 4.01(5)(water guality standards defining surface waters). 

15. Ohio Administrative Code, 3745-32-01(N). 

16. 40 C.F.R. 5131. 

17. A use attainability analysis (40 C.P.R. S131.1O(g)) must show 

at leest one of six factors in ardor to justify not meeting the 

minimum afishable/swimmable a drsignated uses or to remove such a 

designated use. The analysis must show that atteining a use is 

not feasible becsuu of: naturally occurring pollutant 

concentrations; natural flow conditions or watu levels that 

cannot be made up by offluent dischargu without violating state 

watu conservation reguiremntst human caused pollution that 

cannot~r~i~orthatwould~ruo~nuwi~~~l damage 

if corrected; hydrologic modificstions, if it is not feasible to 

rutore the water to its original conditions or operate the 

modificetion to attain the use; natural non-water guality 

physical conditions precluding attainment of aquatic life 

protection uses: or controls more stringent than those required 

by 5301(b) and 5306 would ruult in substantial and widesprud 

economic and social impact. 

18. Questions and Answrrs on Antidegradation (EPA, 1985). this 

documnt is duignated as Appsndix A of Chapter 2 of EPA’s w 

tv s-s Hanabook. 

19. The regulations implementing Section 404 (b) (1) of the Clean 

Water Act are known as the "(b)(l) Guidelinesn and are located at 

40 C.F.R. 5230. 

20. 40 C.F.R. 5230.1(d) 

21. 40 C.F.R. 5230.10(c). 

22. Code of Maryland Regulations Title lo, 510.50.01.02(~)(2)(a). 

ii 
23. Minnesota Rules, 57050.0170. The Nle states in full: 

The waters of the state may, in a state of nature, 

have some characteristics or properties approaching or 

exceeding the limits specified in the water quality 

standards. The standards shall be ConstNed as 

limiting the addition of pollutants of human activity 

to those of natural origin, where such be present, so 

that in total the specified limiting concentrations 

will not be exceeded in the waters by reason of such 

controllable additions. Where the background level of 

the natural origin is reasonably definable and 

normality is higher than the specified standards the 

natural level may be used as the standard for 

controlling the addition of pollutants of humen 

activity which are comparable in nature and 

significance with those of natural origin. The natural 

background level may be used instead of the specified 

water quality standard as a maximum limit of the 

addition of pollutants, in those lnstancu whore the 

natural level is lower then the specified standard and 

reasonable justification exists for pruerving the 

guelity to that found in a state of nature. 

24. No. 83-1352-I (Chancery Court, 7th Division, Davidson 

County, 1984)(unpublished opinion). 

25. These criteria are at 401 K.A.R. 5:031, 52(4) and 54(l)(c), 

respectively. 

26. Ohio Admin. Code, S3745-32-05. 

27. Ohio Admin. Code, f3745-l-OS(C). 

28. Copiu of Ohio's review guidelines are available from Ohio 

EPA, 401 Coordinator, Division of Water Quality Monitoring and 

Aasusmant, P.O. Box 1049, Columbue, Ohio 4326600149. 

29. 40 CFR 5131.12. 

30. 48 Fed. Reg. S1,400, 51,403 (1983)(preamble). 

31. Kentucky Water Quality Standards, Title 401 X.A.R. 5:031, 57. 

32. Minnesota Rules, 57050.0180, Subpart 7. 

33. 314 Code of Hassachusetts Regulation, )4.04(r). 

34. I&umsota Rules, 57050.0180, Subpart 9. 

35. H.R. Rep. No. 91-127, 91st Cong., 1st Sass. 6 (1969). 

. . . 

ill 
36. 115 Cong. Rec. H9030 (April 15, 1969)(House debate); 115 

Cong. Rec. S28958-59 (Oct. 7, 1969)(Senate debate). 

37. C.P.R. 5323.2(d). However, in Reid v. Harsh, a case 

predating these regulations, the U.S. District Court for the 

Northern Corps District of Ohio ruhd that aeven minimal 

discharges of dredged material are not exempt from Section 404 

reviewW. In this district, the Corps treats all dredging 

projects under Section 404. 

38. West Virginia Code, 5479SA-1 (emphasis addmd). 

39. Clun Water Act, 5401(a)(2). 

40. 40 C.F.R. )230.10(a). 

41. 40 C.F.R. s230.10(6). 

ct v. * 

h&4 (Or.App. 1986). 

C.A. No. CA-61-1792 (Cir. Ct., Ranawha 

44. 33 U.S.C. sl313(c)(Z)(A). 

45. Wut Va. Admin. Cod., 5470SA-9.3 (a). 

46. Unpublished paper by Dr. Paul Hill of Wut Virginia's 

Department of Natural Resources. Prepared for EPA-sponsored 

Decembu 1987 workshop on "The Role of Section 401 C8rtification 

in Wetlands Protectlone. 

47. 33 C.F.R. S32S.?(b)(ii). 

48. 18 C.?.R. %4.38(e)(2). 

49. 40 C.l'.R. 5124.53(c)(3). 

50. Wisconsin Administrative Code, NR 299.04. 

51. West Va. Admin. Code, )47-!!A-4.3. 

52. Ip. 

53. JO C.?.R. 5121.2. EPA’s regulations implementing Section 401 

were issued under the 1970 Water Pollution Control Act, (not the 

later Clean Water Act) and thus, may have ~018 anomaliu as a 

result. 
54. This is a reference to Section 10 of the Rivers and Harbors 

Act. 

55. Ohio Admin. Code, 53745-32-05. 

56. m a.&, P. Adams, Wetland Evaluation Technique (WET), 

Volume II: Methodology Y-87(U.S. Army Corps of Engineers 

Waterways Experiment Station, Vicksburg, MS, 1987): L. Cowardin, 

Classification of Wetlands and Deepwater Habitats of the United 

States (U.S. Fish and Wildlife Service 1979). See also Lonard 

and Clairain, IdantiFication of We- -, in 

Proceedings: National Wetlands Assusment Symposium (Chester, VT: 

Association of State Wetland Uanagers, 1986)(list of twenty five 

methodologies). 

57. gee. a.&, R. Tiner, m of w SW . 

wand TrulQl (U.S. Govt. Printing Office 

1984) (National Wetlands Inventory). The National Wetlands 

Inventory has mapped approximateiy 45 percent of the lower forty 

eight states and 12 percent of Alaska. A number of regional and 

state reporte may be obtained from the National Wetlands 

Inventory of the U.S. Fish and Wildlife Service in Newton Corner, 

XA. Region 5 maps can also be ordered from the U.S. Geological 

Survey98 NatiOMl Certographic Information Center in Reston, VA. 

58. The new joint e 

w WeUm&, can be obtained from the U.S. Government 

Printing Office 1989). 

Chesapeake Ray Critical Areas Commission, Guidance 

3, Guidelines for Protecting Non-Tidal Wetlands in the 

Criticel'Area (Xaryland Depamt of Natural Resources, April 

1987). 

60. For information on the Wetlands Values Data Base contact: 

Data Base Administrator, U.S. Fish and Wildlife Service, National 

Energy Centrr, 2627 Redwing Road, Cre8kside One, Fort Colliru, 

Colorado, 80526. Phone: (303) 226-9411. 

61. For 8xampl8, Florida's Section 380 process designates wAreas 

of Critical State Concern a which often include wetlands. Florida 

Statutes f380.05. 

62. 40 C.F.R. 5230.80 (1987). 

63. 16 U.S.C. 51452(3) (1980). See u, U.S.Army Corps of 

Engineers, Regulatory Guidance Letter No. 10 (1986). 
64. m D. Burke, Technical and Programmatic Support for 401 

Certification in Maryland, (Maryland DepartrPent of Natural 

Resources, Water Resources Administration, December 

1987)(unpublished)t A. Lam, m Svm fa 

er s We- in River Corridor Handbook 

(N.Y.Department of Environmental Conservation)(J. Kusler and E. 

l4eyers ecis., 1988). 

The system d8SCribed by Burke is called HIPS (Hap and Image 

Processing Systu) and is capable of translating a myriad of 

information to the scale specified by the user. 

65. & e.u&, (multiple authors], eEcologica1 Considerations in 

Wetlands Treatmnt of ?Iunicipal Wastewaters,a (Van Nostrand 

Reinhold Co., New York, 1985); E. Stockdale, "The Use of Wetlands 

for Stormwater Ramgurnt and Nonpoint Pollution Control: A 

Review of the Idt8ratur8,a (Dept. of Ecology, Stat8 of Washington 

1986): "viability of m8ShWat8r w8tlWXi8 for urban Surface Watu 

Wanag8unt and Nonpoint Pollution: An Annotat8d Bibliography," 

prepamd by Th8 Ruourc8 Planning 88ction of King County, 

Washington D8partm8nt of Planning and Conun ity Developmnt 

(July, 1986). 

66. Th8 w- 8. ffUld8nOn W8tlU'& Protection Act of 1984, ?la. 

stat. 5403.91 - 403.938, r8guir8d th8 Florida D8pament of 

Environmntal Regulation to utablbh 8pecific crit8ria for 

W8thBIhd8 that receive and tr8at domastic wa8t8wat8r treattd to 

secondary standards. The rule is at Pla. Admin. Code, 517-6. 

67. Maxirization of sheet flow. 

68. Hydrologic loading and ret8ntion rat88. 

69. u.t m m L. Schwtit, Crit8ria for Wastewater Discharge 

to Florida Wetlands, (?loride Department of Knvironm8ntal 

R8gulation)(D8c. 1987)(unpublish8d rqort). 

70. Cop188 of the draft, gUse.of Advanc8 Identification 

Authoritiu under Section 404 of the C18an Wat8r Act: Guidance 

for Regional Offic88", can b8 obtairmd from the Regulatory., 

Actitivitiu Division Of tb8 OffiC8 Of W@thndS PNt8CtiOn (AlOIF), EPA, 401 M Str88t, SW, Washington, D.C. 20460. 
Acknowledgements: 

This document was prepared by Katherine Ransel of the Environmental Law 

Institute, and Dianne Fish of EPA’s Office of Wetlands Protection, Wetlands 

Strategies and State Programs Division. Many thanks to the reviewers of the 

draft handbook, and to those States who gave US information on their programs. 

For additional copies contact: 

Wetlands Strategies and State Pqrams Division 

OfXkc of Wetlands Protection A-104F 

Environmental mlkctjon Agency 

401MStreet,SW 

Washington, D.C. 20460 

Phone: (202) 3824043 
TABLE OF CONTENTS 

I. 

II. 

III. 

IV. 

V. 

Page 

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 

WHAT IS WATER QUALITY CERTIFICATION & 

HOW DOES IT WORK? . . . . . . . . . . . . . . . . .................................................................... 8 

401 CERTIFICATION CAN BE A POWERFUL TOOL TO 

PROTECT WETLANDS . . . . . . . . ........ .................................................... 9 

THE ROLE OF WATER QUALITY STANDARDS IN THE 

CERTIFICATION PROCESS 

A. Wetlands Should be Specifically Designated as 

Surface Waters of the States . . . . . . . . . . . . . . . . . . . . . . . . . . 10 

B. General Requirements of EPA’s Water Quality 

Standards Regulations .... . . . . .... . . . . .... . . . . . . ... 12 

C. Applying water Quality Standards to wetlands 

What States are Doing Now ... . . . . ... . . . . ... ... . . . . . 14 

1. Using Narrative Criteria . ... . . . .... 15 . . . . . .... . . . . . 

2. Highest Tier of Protection - wetlands as 

Outstanding Resource Waters . . . . . . . . . . . . . . . . . . 18 

USING 401 CERTIFICATION 

A The Permits/Licenses covered & 

the Scope of Review ... . . . . . . . . . . . . . . . . . . . . . . . . 20 

1. Federal Permits/Licenses Subject to 

Certification ... . . . . . . . . . . . . . . . . . . ... . . . . . 20 

2 Scope of Review Under Section 401 ... . . . . .... . . . . .... . . . . . 22 
B. Conditioning 401 Certifications for 

Wetland Protection ........................................................................................ 23 

1. What are Appropriate Conditions? ............................................... 23 

2. The Role of Mitigation in Conditioning Certification .............. 25 

3. The Role of Other State Laws .................................................... 25 

C. Special Considerations for Review of Section 404 Permits: 

Nationwide and After-the-Fact Permits ................ 27 

1. Nationwide Permits ... . . . . .... . . . . . 27 

2. After-the-Fact Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 

VI. DEVELOPING 401 CERTIFICATION IMPLEMENTING 

REGULATIONS: ADDITIONAL CONSIDERATIONS . . . . . . . . . . . . . 30 

A. Review Timeframe and “Complete” Applications . . 31 . . . . . . . . . . . . 

B. Requirements for the Applicant . . . . . . . . . . . . . . . . . . . . 32 

C Permit Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 

D. Basis for certification Decisions . . . . . . . . . . . . . . 33 

VII. EXISTING AND EMERGING SOURCES OF DATA TO AID 401 

CERTIFICATION AND STANDARDS DECISION MAKERS . . . . . . . . . . . . . . 35 

VIII. SUMMARY OF ACTIONS NEEDED . . . . . . . . . . . . 37 . . . . . . . . 

A. Steps States Can Take Right Away . . . . . . . . . . . . . . . . 38 . . . . . . 

B. Laying the Groundwork for Future Decisions . . . . . . . . . . . . . . 39 
APPENDICES 

APPENDIX A: State and Federal Contacts for 401 

Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 

APPENDIX B: Federal Definitions: Waters of the U.S. & Wetlands . . . . . . . . . . . . 50 

APPENDIX C: Scope of Project Review: Pennsylvania Dam 

Proposal Example . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 

APPENDIX D: Examples of Certification Conditions from 

Maryland, West Virginia, and Alaska . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 

APPENDIX E: Example Conditions to Minimize Impacts from 

Section 404(b)(1)Guidelines . . . . . . . . . . . . . . . . . . . 62 

ENDNOTES . . . . . . . . . . . . . . .-................... i 

4 
I. INTRODUCTION 

This handbook has been developed by EPA’s Office of Wetlands Protection 

(OWP) to highlight the potential of the State water quality certification process for 

protecting wetlands, and to provide information and guidance to the States.1 

Throughout this document, the term “State” includes those Indian Tribes which qualify 

for treatment as States under the federal Clean Water Act (CWA) Section 518(e).2 We 

encourage Tribes who are interested in expanding their protection of wetlands and 

other waters under this new provision of the CWA to examine water quality 

certification as a readily available tool to begin their programs. 

One of OWP’s key mandates is to broaden EPA’s wetlands protection efforts in 

areas which complement our authority under the Clean Water Act Section 404 

regulatory program. Thus, we are exploring and working with other laws, regulations, 

and nonregulatory approaches to enhance their implementation to protect wetlands. In 

addition, the National Wetlands Policy Forum has recommended in its report issued in 

November 1988, that States “make more aggressive use of their certification authorities 

under Section 401 of the CWA, to protect their wetlands from chemical and other types 

of alterations."3 

In light of these directives, we have examined the role of the Section 401 State 

water quality certification process and are working with States to improve its application 

to wetlands. This process offers the opportunity to fulfill many goals for wetland 

protection because: 

• It is a cooperative federal/State program and it increases the role of 

States in decisions regarding the protection of natural resources; 

• It gives States extremely broad authority to review proposed activities in 

and/or affecting State waters (including wetlands) and, in effect, to deny 

or place conditions on federal permits or licenses that authorize such 

activities; 

• It is an existing program which can be vastly improved to protect 

wetlands without major legislative initiatives; 

• Its proper implementation for wetlands should integrate many State 

programs related to wetlands, water quality, and aquatic resource 

preservation and enhancement, to ensure consistency of activities with 

these State requirements. Examples of such programs include coastal 

zone management, floodplain management, and nonpoint source 

programs. 

5 
The issues discussed in this handbook were identified through discussions with 

State 401 certification program personnel and through a workshop held in December 

1987 with many of the States who actively apply 401 certification to wetlands. The 

handbook includes examples of how some States have successfully approached the 

issues discussed Because the water quality certification process is continually evolving, 

we do not attempt to address all the issues here. This handbook is a first step towards 

clarifying how 401 certification applies to wetlands, and helping States use this tool 

more effectively. 

EPA would like to work with the States to ensure that their authority under 

Section 401 is exercised in a manner that achieves the goals of the Clean Water Act 

and reflects the State role at the forefront in administering water quality programs. 

Clearly, the integrity of waters of the US. cannot be protected by an exclusive focus on 

wastewater effluents in open waters. While the federal Section 404 program addresses 

many discharges into wetlands, and other federal agencies have environmental review 

programs which benefit wetlands, these do not substitute for a State's responsibilities 

under Section 401. A State's authority under Section 401 includes consideration of a 

broad range of chemical, physical, and biological impacts. The State's responsibility 

includes acting upon the recognition that wetlands are critical components of healthy, 

functioning aquatic systems. 

To help States implement the guidance provided in this handbook and to foster 

communication on 401 issues, you will find a list of State 401 certification contacts and 

federal EPA contacts in Appendix A. In order to keep this and other wetland contact 

lists current, EPA has asked the Council of State Governments to establish a 

computerized database of State wetland programs and contacts (See Appendix A for 

details.) EPA is also refining a list of Tribal contacts to foster communication with 

interested Tribes. 

6 
SUMMARY OF ACIIONS NEEDED 

The following is a summary of the activities needed to make 401 certification a 

mote eflective tool to protect wetlands. States can undertake many of these 

activities right away, while also taking other actions which lay the groundwork for 

improving future 401 certification ddsions. Tribes, who primarily are just 

beginning to develop wetlands pwms, should consider these actions (along 

with developing water qunlity standards) as first steps to becoming more involved 

in wetlands regulatory florts. The actions below am discussed throughout the 

handbook 

l All etates should begin bg including wetlands in their de&&ions of 

smte w8terr 

l States should develop or modify their existing 401 certification and 

water qaaIity standard regalitions and guidelines to l ccomodrte 

spedal weUand amsideraUonr 

l Strtu shonld nuke more effective use of their existing nrrirtive water 

(indading the antidegradation poIScy) to protect the 

l States should initiate or improve open existing inventories of their 

wl!thndl States should designate uses for these wetlands based on wetland 

fbnctkm usdated with emh wetland type Such tstimatcd uses 

could be verifW when needed for individual l ppliations with an 

assessment tool such as the Wetlands Evaluation Technique, or Habitat 

Evda8Uon Pmcedurr, or region-specific ev8Irution methodr. 

8 States shodd tap into the potential of the outstanding resource waters 

designation d the antidegradatlon polie for their wetlands. 

l States rhoold incorpo~te 401 cettiflcation for wetlands into their water 

qdity manqement planning proeeu. This process can integrate 

wetland resource information with dilferent water management 

p-s afWting wetlands (including autstal zone management, 

nonpoint source and wastewater proprrrms). 

7 
II. WHAT IS WATER QUALITY CERTIFICATION AND HOW DOES IT WORK? 

States may grant or deny “certification” for a federally permitted or licensed 

activity that may result in a discharge to the waters of the United States, if it is the 

State where the discharge will originate. The decision to grant or deny certification is 

based on a State’s determination from data submitted by an applicant (and any other 

information available to the State) whether the proposed activity will comply with the 

requirements of certain sections of the Clean Water Act enumerated in Section 

401(a)(l). These requirements address effluent limitations for conventional and 

nonconventional pollutants, water quality standards, new source performance standards, 

and toxic pollutants (Sections 301, 302, 303, 306 and 307). Also included are 

requirements of State law or regulation more stringent than those sections or their 

federal implementing regulations. 

States adopt surface water quality standards pursuant to Section 303 of the clean 

Water Act and have broad authority to base those standards on the waters’ use and 

value for “public water supplies, propagation of fish and wildlife, recreational purposes, 

and. . . other purposes."4 All permits must include effluent limitations at least as 

stringent as needed to maintain established beneficial uses and to attain the quality of 

water designated by States for their waters. 5 Thus, the States’ water quality standards 

are a critical concern of the 401 certification process. 

If a State grants water quality certification to an applicant for a federal license 

or permit, it is in effect saying that the proposed activity will comply with State water 

quality standards (and the other CWA and State law provisions enumerated above). 

The State may thus deny certification because the applicant has not demonstrated that 

the project will comply with those requirements. Or it may place whatever limitations 

or conditions on the certification it determines are necessary to assure compliance with 

those provisions, and with any other “appropriate” requirements of State law. 

If a State denies certification, the federal permitting or licensing agency is 

prohibited from issuing a permit or license. While the procedure varies from State to 

State, a State’s decision to grant or deny certification is ordinarily subject to an 

administrative appeal, with review in the State courts designated for appeals of agency 

decisions. Court review is typically limited to the question of whether the State 

agency’s decision is supported by the record and is not arbitrary or capricious. The 

courts generally presume regularity in agency procedures and defer to agency expertise 

in their review.6 

States may also waive water quality certification, either affirmatively or 

involuntarily. Under Section 401(a)(l), if the State fails to act on a certification request 

8 
“within a reasonable time (which shall not exceed one year)” after the receipt of an 

application, it forfeits its authority to grant conditionally or to deny certification. 

The most important regulatory tools for the implementation of 401 certification 

are the States’ water quality standards regulations and their 401 certification 

implementing regulations and guidelines. While all of the States have some form of 

water quality standards, not all States have standards which can be easily applied to 

wetlands. Most Tribes do not yet have water quality standards, and developing them 

would be a first step prior to having the authority to conduct water quality certification. 

Also, many States have not adopted regulations implementing their authority to grant, 

deny and condition water quality certification. The remainder of this handbook 

discusses specific approaches, and elements of water quality standards and 401 

certification regulations that OWP views as effective to implement the States’ water 

quality certification authority, both generally, and specifically with regard to wetlands. 

III. 401 CERTIFICATION CAN BE A POWERFUL TOOL TO PROTECT 

WETLANDS 

In States without a wetlands regulatory program, the water quality certification 

process may be the only way in which a State can exert any direct control over projects 

in or affecting wetlands. It is thus critical for these States to develop a program that 

fully includes wetlands in their water quality certification process. 

But even in States which have their own wetlands regulatory programs, the water 

quality certification process can be an extremely valuable tool to protect wetlands. 

First, most State wetland regulatory laws arc more limited in the wetlands that are 

subject to regulation than is the Clean Water Act. The Clean Water Act covers all 

interstate wetlands, wetlands adjacent to other regulated waters; and all other wetlands, 

the use, degradation or destruction of which could affect interstate or foreign 

commerce.7 This definition is extremely broad and one would be hard pressed to find a 

wetland for which it could be shown that its use or destruction clearly would not affect 

interstate commerce. Federal jurisdiction extends beyond that of States which regulate 

only coastal and/or shoreline wetlands, for instance. And in States that regulate inland 

wetlands, often size limitations prevent States from regulating wetlands that are subject 

to federal jurisdiction.8 

Even if State jurisdiction is as encompassing or more so than federal jurisdiction, 

however, water quality certification may still be a valuable and essential wetlands 

protection device. In the State of Massachusetts, for instance, a 401 certification is not 

simply “rubber stamped” on the permitting decisions made pursuant to the 

Massachusetts Wetlands Protection Act The State has denied certification to proposed 

projects requiring a federal permit even though the State wetlands permitting authority 

9 
(in Massachusetts, permits arc granted by local “conservation commissions”) has granted 

authorization for a project. 

There may be a number of reasons that a proposed activity may receive 

authorization under a State wetland regulatory program, but fail to pass muster under a 

401 certification review. The most commonly cited reason, however, is that water 

quality personnel have a specialized understanding of the requirements and 

implementation of the State’s water quality standards and the ways in which certain 

activities may interfere with their attainment. 

It is important, however, to keep in mind the limitations of 401 certification 

when considering a comprehensive approach to protecting your wetland resources. The 

primary limitation is that if 401 certification is the only tool a State has to protect 

wetlands, it cannot place limits on activities which do not require a federal license or 

permit. Some activities such as drainage or groundwater pumping, can have severe 

impacts on the viability of wetlands, but may not require a permit or license. Ideally, 

401 certification should be combined with other programs in the State offering wetlands 

protection opportunities (such as coastal management and floodplain management). 

For example, Alaska has integrated its 401 certification and coastal management 

consistency review process so that the provisions of each program augment the other 

. to provide more comprehensive protection. This approach not only strengthens 

protection, it reduces duplication of State efforts and coordinates permit review for 

applicants.9 

IV. THE ROLE OF WATER QUALITY STANDARDS IN THE CERTIFICATION 

PROCESS 

A. Wetlands Should be Specifically Designated as Surface Waters of the 

States 

In order to bring wetlands fully into the State water quality certification process, 

a first step is to include the term "wetlands” in the State water quality standards' 

definition of surface waters. EPA will be working with all States through the triennial 

review process of State standards to ensure that their definitions arc at least as. 

comprehensive as the federal definitions for waters (see Appendix B for federal 

definitions of "Waters of the U.S.” and the term "wetlands”). 

It may seem minor, but from every standpoint, it is important to have wetlands 

specifically designated as surface waters in State water quality standards. First, it 

precludes any arguments that somehow wetlands are not covered by water quality 

standards. Second, it predisposes decision makers (from 401 certification program 

managers, to the head of the agency or a water quality board, all the way to the judges 

10 
on the courts that may review these decisions) to consider the importance of wetlands 

as part of the aquatic ecosystem. Third, it makes it clear that wetlands are to be 

treated as waters in and of themselves for purposes of compliance with water quality 

standards and not just as they relate to other surface waters. 

The third point is critical and bears further explanation. When States include 

wetlands in the definition of surface waters covered by their water quality standards, 

they clarify that activities in or affecting wetlands are subject to the same analysis in the 

certification decision as are projects affecting lakes, rivers, or streams. This is not to 

say that a wetland project’s effects on adjacent or downstream waters arc not also part 

of the water quality certification analysis. Rather, it is to say that wetlands, either 

adjacent to or isolated from other waters, arc water-bodies in and of themselves and an 

applicant for water quality certification must show that a proposed project will not 

violate water quality standards in those wetlands, as well as in other waters. 

The States currently have a variety of definitions of "waters of the State” in the 

legislation that enables water quality standards (e.g., multi-media environmental 

protection acts, & water quality acts, and the like). Only three States currently have the 

term "wetlands” explicitly listed as one of the types of waters in this enabling legislation 

(Nebraska, Rhode Island, West Virginia). These States need only to repeat that 

definition in their water quality standards and their 401 certification implementing 

regulations. 

While most States do not have the term "wetlands” in their enabling legislation, 

many use the term "marshes" in a list of different types of waters to illustrate "waters of 

the State" in their enabling legislation. Kentucky, for example, defines waters of the 

State as: 

. . any and all rivers, streams, creeks, lakes, ponds, impounding reservoirs, 

springs, wells, marshes, and all other bodies of surface or underground water, 

natural or artificial, situated wholly or partly within of bordering upon the 

Commonwealth or within jurisdiction.10 

When used in this way, the term is typically understood to be generic 

in nature rather than being descriptive of a type of wetland, and can therefore be 

considered as the equivalent of the term “wetlands”. In these States, however, in order 

to ensure that the term “marshes” is interpreted as the equivalent of wetlands, the best 

approach is to include the term "wetlands” in the definition of surface waters used in 

the State’s water quality standards and in the 401 certification implementing regulations. 

There is another group of States that has neither the term "wetlands” or 

“marshes” in the enabling legislation’s definition of waters of the State. These 

definitions typically contain language that describes in some generic manner, however, 

11 
ah waters that exist in the State. They may not spccifkally designate any particular 

type of water body, as, for instance, Tennessee’s Water Quality Control Act: 

. . . any and all water, public or private, on or beneath the swfacc of the 

gmund, which fir) contained within, flow[s] through, or border[s] upon 

Tmnctscc or any portion themof. . . .I1 

Or they may specify some types of surface waters and then generically include all 

others with a clause such as “and all other water bodies” or “without limitation”, as does 

Massachusetts: 

In these States, as in the States with “marshes” in the enabling legislation’s 

ck~tion of water& regulators should clarify that wetIan& arc part of the surface 

waters of the Smk subject to the Stat& wtcr quality standards by including that term, 

and any others they deem appropriate, in a dcgnition of surface waters in their water 

quality star&r& and in their 401 cctication impkmcnting rcgulation~ 

Both Kcntudry and Ohio, for instance, which have the term “marshes,” but not 

the term “wetlands” in their enabling kgislation, have mcludcd the term “wetlands” in 

their-waterquality standa& ck&ition ofwatcd Massachusetts, which does 

Mn~~tbcterm~tlandr”or~“inittenablinglegitlation,hatputthettrm 

‘knuan&” into its water quality smndar& alsal* Additionaily, Ohio’s 401 certifjcation 

impkmenting regulations include the term %ctlands” in the deft&ion of waters covered 

by those regulations and spcci&aQ address activities affecting the integrity of 

wetland&~ 

B. Gonad Requkments ofEPA'r Water Quality Smndwds RegulaUons.L6 

When the States review their water quality standards for applicability to projects 

affecting wetlands, it is important to have in mind the basic concepts and rquiremcnts 

of water quality su&ards generally. Congress has given the States broad authority to 

adopt water quality star&&, dirwting only that the States designate water uses that 

protect the public health and welfare and that take into account use of State waters for 

dri&ing water, the propagation of 6sh and wildlife, recreation, and agricultural, 

industrial and other purposes. 

12 
EPA’s water quaIity standards regulations require States lo adopt water quality 

standards which have three basic components: use designations, criteria to protect 

those uses, and an antidegradation policy. 

EPA directs that, where attainable, designated uses must include, at a minimum, 

uses necessary to protect the goals of the CWA for the protection and propagation of 

hsh, shellfish, and wildlife and provide for recreation in and on the waters. This 

baseline is commonly referred to as the “fishable/swimm able” designation. If the State 

does not designate these minimum uses, or wishes to remove such a designated use, it 

must justify it through a use attainability anaIysis based on at least one of six factors.” 

In no event, however, may a beneficial fist& use (any use which is actually attained 

in the water body on or after November 28, 1975) be removed from a water body or 

scpcnt 

Criteria, either polIutant-spcci!% numerical criteria or narrative criteria, must 

protect the designated and existing uses. Marty of the existing numeric criteria are not 

spe&aUy adapted to the characteristics of wetlands (see last section of handbook for 

steps in this direction). However, almost all States have some form of the narrative 

standards (commonly known as the “kc hns”) which say that a.ll waters shall be free 

from substances that: settle to form objectionable deposits; float as debris, scum, oil or 

other matter to form nuisances; produce objectionable color, odor, taste, or turbidity; 

injure, or arc toxic,or produce adverse physiological responses in humans, w or 

plants; or produce undesirable or nuisance aquatic life. States have also used other 

narrative criteria to protect wetland quality. The use of criteria to protect wetlands is 

. dlscusd in the foIlowing scctioxL 

In addition, EPA ah requires that all States adopt an antidegradation policy. 

Seeral States have used their ant&gradation policy effectively to protect the quality of 

their wetland resources. At a minimum, a State’s antidegradation policy must be 

consistent with the following provisions: 

(1) Existing uses and the level of water qaality necessary to protect existing uses in 

all scgBleuts of a mter budy mnst be maintin* 

(2) if the quality of tile water is higher than that neassary to support propagation 

of fish, rbellllsh, and wildlifq and recreation in and on the water, that quality 

shall be maintained and proteeM, unless the State fhds that lowering the water 

quality is justifkd by overriding economic or social needs determined Piker full 

public involvement. In no event, however, may water quality fall below that 

n-say to protect the existing benefkial uses; 

(3) if the waters have been designated as outstanding resource waters (ORWs) no 

degradation (except temporrrry) of water quality is allowed. 

13 
In the case of wetland fi&, however, EPA allows a siightiy different 

interpretation of the antidegradation policy. I* Because on the federal level, the 

Congress has anticipated the issuance of at least some permits by virtue of Section 404, 

it is EPA’s policy that, except in the case of ORWs, the “existing use” requirements of 

the antidegradation policy art met if the wetland fill does not cause or contribute to 

“significant degradation” of the aquatic environment as defined by Section 230.10(c) of 

the Section 404(b)(l) Guidelines.19 

These Guidelines lay a substantial foundation for protecting wetlands and other 

special aquatic six from degradation or destruction. The purpose section of the 

Guidelines states that: 

. 

. . . !hm a uaticmd pmpectivc, the dmtioo or destnxtion of special aquatic sites, 

such as !Uliug operatious in wetlauds, is considered to be among the most severe 

endmuxueutnl impacts covered by these Guidelines. Tbe guiding princi~ should be 

that degmdation or dmction of special situ may rrp-t an irreversible loss of 

vnlrubk 8qMtk mournThe Gui&iincs also state that the following effects contribute to sign&ant 

degradation, either individually or cokctively: 

I) 

. ..~tdrtrrc~~oa(l)hPmra~thorrrtlhrr.indtldinl~~orr 

mullkiprl w8ter suppIle& plank&& ash, shewIsh, wildlif$ and specw rqu8tic sites 

(w-9 -1; (2) oothe~lifkstagesdaquaticliEeandotherwildlifedepuukatoo 

8qMtic axBpau& iudndiug the trMskr, amceutmtiou or spre8d of pouut8nts or 

their mpctr m the site thxwgh biologkl, physical, or chemial process; (3) 

oo ecosystem diversity, productivity and stability, including low of fish and wildMe 

hbi~ta~oltka~bd8rrrtkndto~~nutrkntr,prrriiL~tcror 

rsduce wave m, or (4) m recreational, aesthetic, and economic values.‘= 

‘k Guideliner may be used by the States to determine “significant degradation” 

for wetland rmt. Of coupe, the States arc kc to adopt stricter requirements for 

wetland fills in their own antidegradation policies, just as they may adopt more stringent 

requirements than federal law requires for their water quality standards in general. 

C &tying Water Quality Standards Regulations to Wetlands - What States 

8ItDOillgNOW 

Some states have taken the lead in using 401 certification as a wetlands 

protection tool to protect them for their water quality and other irreplaceable functions, 

such as storage places for flood waters, erosion control, foodchain support and habitat 

14 
for a wide variety of plants and animals. These States have taken several different 

approaches to wetlands protection in their water quality certification process. 

1. Using Namtin Criteria 

States have applied a variety of narrative criteria to projects in or affecting 

wetlands in the 401 certification determination. For example, Maryland’s water quality 

standards contain a narrative directive, which the agency relied upon to deny 

certification for a non-tidal wetland fill. The standard provides that “[a]ll waters of this 

State shall be protected for the basic uses of water contact recreation, fish, other 

aquatic life, wildlife, and water s~pply.~ In its denial, Maryland stated: 

Because wetlands vary tremendously in background levels of certain parameters 

measured by the traditional numcrical/chcmical criteria applied to surface waten, some 

states hwc relied on “Il8tur8l w8ur qualiv critcri8 to protect wetlands in the 401 

certification process Minnesota, for instance, has taken this approach in denying 

certification for a flood control project because of tbc State’s primary concern . . . that 

theprojectwould~e3,chanrreLittkDiannLakefromanacidboetoafruhcirmmneutxal water chemistry type of wetland.” The agency was concerned that 

“introduction of lake water into the closed acid system of Little Diann IAt would 

completely destroy the chamctcr of this natural resource.” It relied on a provision of its 

water quality standards allowing the State to limit the addition of pollutants according 

to background levels instead of to the levels specified by criteria for that class of waters 

generally. The denial letter pointed out that this rule “states that the natural 

background level may be used instead of the specified water quality standards, where 

reasonable justifkation exists for preserving the quality found in the State of nature.” 

According to the denial letter, because of the clear potential for impacts to the bog, the 

State was invoking that particular provision.B 

Tcnncsscc has rclkd on broad prohibitory language in its water quality standards 

to deny water quality certification for wetland fill projects and has been upheld in court. 

bm V. Tewc Ww Ouality Bti was brought by a 401 artifkation 

15 
applicant who proposed to place fill along the southeastern shoreline of a natural 

swamp lake. The court upheld the denial of 401 certification, explaining: 

Rcelfoot Lnke is cl&si@d for jIsh and aquatic life, recreation, and livestock 

watering and wildlife ues. 7%~ [Water Quality] Boatd has csrablished 

various standards for the waters in each classification. Among other things, 

these standards pertain to dirtolved oqgen, pH, tempemture, toxic substances, 

and other pollrrrantr l7u Permit Hearing Panel found the petitioner’s 

activity will violate the “other pol&mts” standard in each cfi~tion. 

Collectively, these [“other pt.dhtants”] standattis ptvvde that other pollutant 

ShoUnotbcaddcdrothcMltcrtharwillbcdrnimcnralroFhoraquotic 

lift, to WCE& and to i&stock watering and wikdife 

The court found that while there was no evidence that the project in and of 

itself would “kill” Reelfoot L&c, there was cvidena that the shoreline was important to 

recreation because tourists visit R&foot to view its natural beauty and the lacustrinc 

wetIan& function as a spawning ground for fish and produce food for both fish and 

wildlife. It found that although the evidence in the record did not quantify the damage 

to fish and aquatic life, recreation, and wildlife that would result f/ram the proposed fill, 

the opinion of the State’s expert that the ac%ty would be detrimental to these uses 

was suffxient to uphold the denial of artiftcation. 

Kcntuc@ has al80 relied on narrative criteria It denied an application to place 

Wfrom~~ mincconrtnrctioninawctlandarcabecawewctlandsart 

protected from pollution as Waters of the Commonwealth” and because placing spoil 

or any fill material @ollutants under KRS 224:00!5(28)) in a wetland specifically violated 

at least two water quality criteria. One of Kentucky’s criteria, applicable to all surface 

WAten,prwidwthatthewaten”shannorbeaesth&@ufothawiK~by 

~thot...[i]njun,[onltcrxictootpoduuodvcrscphysidogicolorbchovioml 

nrrponrain~~fi31andotheraquaticIjfc” 

The other &cricm, applicable to warm water aquatic habitat, provides that 

“If7rowshaUnotbeaitedtoadqmwhichwilladvedyafkttheaquatk 

ccwmudy.N”fJ This second criterion which addresses hydrological changes is a 

particularly important but often overlooked component to include in water quality 

standards to help maintain wetland quality. Changes in flow can severely alter the 

plant and animal species composition of a wetland, and destroy the entire wetland 

system if the change is great enough. 

Ohio has adopted 401 artifjcation regulations applicable to wetlands (and other 

waters) that, together with internal review guidelines, result in an approach to the 401 

Farti6cation decision similar to that of the 404(b)(l) Guidelines. Its 401 certification 

regulations first direct that no artification may be issued unless the applicant has 

16 
demonstrated that activities permitted by Section 404 or by Section 10 of the Rivc+s 

and Harbors Act (RHA) will not: 

(I) prcvcnr or intnfcn with the attainment or maintenance of applicable water 

quality standanlr; 

(2) result in a violation of Sections 301, 302, 303, 306 or 307 of the CWA; 

additionally, the agency may deny a rcqu~r notwittianding the applicant’s 

demonstmtion of the above if it conchuks that the activity “will result in advme 

long or shoti term impacts on water cpaliy.‘~ 

Ohio has placed all of its wetlands gs a a in the category of “State resource 

waters.” For these waters, Ohio has proposed amendments to its standards to say that 

“[p)rcsent ambient water quality and uses shall be maintained and protected without 

CxaptioL.” n The proposed standards also require that point source discharges to 

State rcsourct waters be regulated accxMng to Ohio’s biological criteria for aquatic 

life. 

However, Ohio has not yet dcvcloped biological indices specif5cally for wetlands. 

Thus, for projects affecting wctlan&, it bases its ccrti6cation decisions on internal 

review guidelinu that are similar to the federal Section 404(b)(l) Guidelines. Ohio’s 

guidelines are structured by type of activity. For instance, for fills, their requirements 

arc as follows: 

(a)ifthepmjaztisnotwattrdrpauiart,cd&uionisdmicd; 

Ohio’s internal review guidelines also call for (1) an historical overview and ecological 

evaluation of the site (including biota imentory and existing bioaccumulation studies); 

(2) a sediment physical characterization (to predict wntaminant levels) and (3) a 

sediment analysis.a 

Using these guidelines, Ohio frequently conditions or denies artification for 

projects that eliminate wetland uses. For instance, Ohio has issued a proposed denial 

of an application to iill a three acre wetland area adjacent to Lake Erie for a 

17 
recreational and picnic area for a lakefront marina based on its classification of 

wetlands as “state resource waters:” 

Wctlondr senv a vital ecobgiud jimdon Ltcluding fd chain pductioh ptvvinh 

of spwning numry and mting habitats for variout aquatic spies, natuml 

fihmion of surface water runofi grvund water recharge, and erosion and flood 

abatema 77~ 0A.C Secttint 3745-1-05(C) inchdes wetbnds (in the] State 

&sowce Watm catqwy and adims nojbtk water &pa& ~tkn which 

MHJdinttrf~withorbecomeinjthurwthecdingurct. 7heaiiddionofjill 

?natmilltothe~ndwouldc(uLKscv#Icad~~tctswthcwcrloILd m&p 

wo& eliminate valuable wethnd habitu4 ha&y dqding the airting use 

TbejustificationfofthisdtnialaccordinetoOhioprogram~wasnot 

only that the project would interfere with eJdtting uses, but in addition, the project was 

not water dependent as called for in Ohio’s internal guidelines. Ohio 401 certification 

program personnel note that these review guidelines present the general approach to 

certification, but with regard to projects that arc determined to be of public necessity, 

this approach may give way to other public interest amccrns. For example, a highway 

irnotwaterdepcndentperre;4however,rafayand~~fllti~~t108 

cenain route that nccesita Usfillingwetkodr,theagencymayallowiL Inthatevcnt, 

however, mitigation by wetland aeation and/or rcstomtion would be sought by tbc 

agency as a condition of ccrtiktttiot~ 

% EighestlkdPdaSaWtthd8uOaUtaadlngRmarce 

W8t#r 

Oacartrtme~promirinnapproachtaCrtnby~oftbeSmtcrbatbeento 

designate wetlands as ouw resource waters (ORW), in which water quality must 

be maintained and protected acaxd@ to EPA’s regulntkms on anti&gradation (i.e., no 

degradationfor~~irallowled,occeptforrhorttena~whichbaveno 

long term consquencu). a Thisapproachprov&swetlan&withsign5cantprotcction 

. atwasmasmofE&& EPA 

der~~thir~ificati<wnatonlyfortbc~m~waten,but~forwattr 

bodies which arc “important, unique, or scnsitkc ecologklly, but whore water quality 

as measured by the traditional parameters (dissolved oxygen, p& e&) m not be 

particularly high or whose character cannot be adequately dcscrii by these 

parameters.- This description is particularly apt for many wetland system. 

The designation of wetlands as outstanding resource waters has occurred in 

merent ways in different States. Mimxso~ for instance, has designated some of its 

rare, calcaresus fens as ORWs and intends to deny Clls in these fens. 

18 
Ohio has issued for comment, proposed revised water quality standards that 

include a newly created “outstanding State resource waters” category. Ohio intends to 

prohibit all point source discharges to these waters. Of fourteen specific water bodies 

proposed to be included in this category by the Ohio EPA at this time, ten are 

wetlands: four fens; three bogs; and three marshes. 

Because the designation of wetlands as ORWs is such an appropriate 

classification for many wetland systems, it would behoove the States to adopt 

regulations which maximize the ability of State agencies and citizens to have wetlands 

and other waters placed in this category. The State of Kentucky has set out 

procedures for the designation of these waters in its water quality standards. Certain 

categories of waters automatically included as ORWs are: waters designated under the 

Kentucky Wild Rivers Act or the Federal Wild and Scenic Rivers Act; waters within a 

formally dedicated nature preserve or published in the registry of natural areas and 

concurred upon by the cabinet; and waters that support federally recognized 

endangered or threatened spccics. In addition, Kentucky’s ktcr quality standards 

include a provision allowing anyone to pqosc waters for the ORW classikatiot~~* 

Minnesota has a section in its water quality standards that could be called an 

“emergenc)r provision for the designation of out5tanding resource waters. Noxmally it 

is necessary under Minnesota’s water quality standards for the agency to provide an 

opportunity for a hearing before identifvinn and establishing outstanding resource waters 

and before prohiiiting or .rcstricting any discharges to those waters. The “emcrgcnc)r 

provision allows the agency to prohiiit new or expand4 discharges for unlisted waters 

5otheatent.. .nacctrmywpcsavvtheaistinghigtrqucriity,orwprespctcrwthe 

wildcmm,s~~oroJhcrspscial~mctcriaicrthatmakcthc~trtan 

. otmandmg rr.soum value water.- This provision allows the agency to protect the 

waterbody while completing the listing process which could take several years. 

Moreover, some States have improved on the formulation of the ORW 

classification by spelling out the ptwtetion provided by that designation more 

specifically than do EPA’s regulations. For instance, Massachusetts’ water quality 

standards state that for “National Resource Waters:” 

WaunsodcnjgMtadmoynorbcdrgradadandcurnotsubjactwava~nce 

pocadun. NtwdMargesofp&wnewsuchwatersaqdibited 

Eriffing discharges shall be eliminated unltss the dkchnrger ir able to 

drmonrarru that.- (a) Akmatiu means of dirposal allc not masonably 

avaikzble or feasible; and (b) The dirchorgr will not afi- the quo& of the 

water as a national n30utce” 

19 
This provision explicitly outlines how the State intends to maintain and protect the 

water quality of ORWs. Another provision which Minnesota uses to control discharges 

to waters that flow into ORWs for their effect on ORWs is that: 

The agency shall require new or expanded discharges that flow into 

outstanding resource value waters [to] be controlled so as to assure no 

deterioration in the quality of the downstream outstanding resource value 

water.34 

V. USING 401 CERTIFICATION 

A. The Permits/Licenses Covered and the Scope of Review 

The language of Section 401(a)(1) is written very broadly with respect to the 

activities it covers. "[A]ny activity, including, but not limited to, the construction or 

operation of facilities, which may result in "any discharge" requires water quality 

certification. 

When the Congress first enacted the water quality certification provision in 1970, 

it spoke of the "wide variety of licenses and permits. . . issued by various Federal 

agencies," which "involve activities or operations potentially affecting water quality."35 

The purpose of the water quality certification requirement, the Congress said, was to 

ensure that no license or permit would be issued "for an activity that through 

inadequate planning or otherwise could in fact become a source of pollution."36 

1. Federal Permits/Licenses Subject to Certification 

The first consideration is which federal permits or licenses are subject to 401 

certification. OWP has identified five federal permits and/or licenses which authorize 

activities which may result in a discharge to the waters. These are: permits for point 

source discharges under Section 402 and discharges of dredged and fill material under 

Section 404 of the Clean Water Act; permits for activities in navigable waters which 

may affect navigation under Section 9 and 10 of the Rivers and Harbors Act (RHA); 

and licenses required for hydroelectric projects issued under the Federal Power Act. 

There are likely other federal permits and licenses, such as permits for activities 

on public lands, and Nuclear Regulatory Commission licenses, which may result in a 

discharge and thus require 401 certification. Each State should work with EPA and the 

federal agencies active in its State to determine whether 401 certification is in fact 

applicable. 

20 
Indeed, it is not always clear when 401 certification should apply. For instance, 

there remains some confusion under Sections 9 and 10 of RHA concerning which 

projects may involve or result in a discharge, and thus require State certification. In 

many cases there is an overlap between Section 404 CWA and Sections 9 and 10 RHA. 

Where these permits overlap, 401 certification always applies. Under the Section 404 

regulations, the question of whether dredging involves a discharge and is therefore 

subject to Section 404, depends on whether there is more than “de minimis, incidental 

soil movement occurring during normal dredging operations”.37 

Where only a Section 9 or 10 permit is required, 401 certification would apply if 

the activity may lead to a discharge. For example, in the case of pilings, which the 

Corps sometimes considers subject to Section 10 only, a 401 certification would be 

required for the Section 10 permit if structures on top of the pilings may result in a 

discharge. 

States should notify the regional office of federal permitting or licensing agencies 

of their authority to review these permits and licenses (e.g., the Corps of Engineers for 

Section 404 in nonauthorized States, and Sections 9 and 10 of the RHA; EPA for 

Section 402 permits in nonauthorized States; and the Federal Energy Regulatory 

Commission (FERC) for hydropower licenses). In their 401 certification implementing 

regulations, States should also give notice to applicants for these particular federal 

permits and licenses, and for all other permits and licenses that may result in a 

discharge to waters of the State, of their obligation to obtain 401 certification from the 

State. 

West Virginia's 401 certification implementing regulations, for instance, state 

that: 

1.1. Scope . . . Section 401 of the Clean Water Act requires that any 

applicant for a federal license or permit to conduct an activity which will or 

may discharge into waters of the United States (as defined in the Clean 

Water Act) must present the federal authority with a certification from the 

appropriate state agency. federal permits and licenses issued by the federal 

government requiring certification include permits issued by the United States 

Army Corps of Engineers under Section 404 of the Clean Water Act, 33 

U.S.C. 1344 and licenses issued by the Federal Energy Regulatory 

Commission under the Federal Power Act, 16 U.S.C. 1791 et seq. 38 

Because West Virginia has been authorized to administer the NPDES permitting 

program under Section 402 of the Clean Water Act, applicants for NPDES permits do 

not have to apply for water quality certification separately. In addition, West Virginia 

has not specifically designated Rivers and Harbors Act permits in the above regulation. 

However, because the regulation States that such permits or licenses include Section 

21 
404 and FERC licenses, those and all other permits not specifically designated but 

which may resuit in a discharge to the waters would be covered by the regulation’s 

language. The better approach would be to enumerate all such licenses and permits 

that are known to the State and include a phrase for all others generically. 

2. Scope of Revicrr Under Swtion 401 

An additional issue is the scope of the States’ review under Section 401. 

Congress intended for the States to use the water quality certification process to ensure 

that no federal license or permits would be issued that would violate State standards or 

become a source of pollution in the future. A& because the States’ certification of a 

wns~ permit or lknse also operates as certification for an operating permit 

(except for in certain instants specified in Section 401(a)(3)), it is imperative for a 

State review to consider all potential water quality impacts of the project, both direct 

Mdindircct,ovcrthclifcofthcpTojcct. 

Asccondcom~ofthcscopeofthcrevicwiswhcnanactivityrequirine401 

ccrtificationinoaesmu(~tbesmuinwbichthedirchargeorigina~)willhanM 

impctontbcwaurquali~ofanotbcrStau.~ TbcstatuUprodcsthatafurrccciving 

noti~ofapp~tionfromafedcralpermittineorlicc~agcncy,EPAwillnotify~ 

statuwhoscwatcrqualitymaybe- SuchStatcshavctherighttosubmittheir 

objcdmsladrtqucrtabcaring EPAmayalsosubmititscvaluationand 

mwmmadatiotm If tbc use of wnditions cannot insure wmpliance with the affected 

State’s water quality rcquircmcntt, the federal permitting or licensing agency shall not 

issucmchpcrmitorlia2nsc. 

The foIlowing example of 401 ccrtikation denial by the Pcmtsylvania 

Dqattmat of Envsronmenul Resources @ER) for a proposed FERC hydroclcctric 

project~~tbebreadthoftbescopeofreviewundcrSection401(tccApptndk 

Cforfulldcscr@hofprojectandimpactsa~). TbeCityofhrrisbuq, 

Pmrtryhnnirr pfopoed to construct a hydroclcctric power project on the Suqu&anna 

River. TbePenrrytvanirDERconrideredafullrangeofpotcntialimpact,onthe 

aquatksystcminitsrcvkw. Tbcimpactsincluciedtbo8eonStatewaurslocatedatthe 

damsite,aswcIlastho6c downrtrtam and upstream born the site. The impacts 

wnsidcrcd were not just from the discharge initiating the certikation review, but water 

quality impacts from tbe entire project. Thus, potential impacts such as noodin& 

changes in dissolved qgcn, loss of wetlands, and changes in groundwater, both from 

wnstr&on and future operation of the project, were all considered in the State’s 

decision. 

The concerns expressed by the PennsyM Department of Emkonmental 

Rcsourcu arc not nccusar@ all those that a State should consider in a dam 

22 
ccrtifkation review; each project will have its own specific impacts and pountial water 

quality problems. The point of the illustration is to show that all of the potential 

eacts of 8 proposed activity on water quality - direct and indim short and long 

term, upstrewn and downstream, construction and operation - should be part of a 

State’s certification review. 

B. Conditioning 401 Certifkations for Wetland Protection 

In 401(d), the Congress has given the States the authority to place any conditions 

on a water quality certification that are necessary to assure that the applicant will 

comply with effluent limitations, water quality standards, standards of performance or 

pretreatment standaN& with any State law provisions or regulations more stringent than 

those sections; and with “any other appropriate requirement of State law.” 

The legislative history of the subsection indicates that the Congress meant for the 

States to impose whatever conditions on the certification arc ntcess81y to ensure that 

an applicant complies with all State requirements that are related to w8ur quality 

conccms9 

L What are Appropriate Conditions? 

There arc any number of possible conditions that could be placed on a 

ccrtikation that have as their purpose preventing water quality deterioration. 

By way of example, the State of Maryland issued a ccrtikation with conditions 

for placement of fill to wnstruct a 350foot earthen dam located 200 feet downstream of 

an existing dam. Maryland used some general wnditions applicable to many of the 

proposed projects it w&den, along with spccifk wnditions tailored to the proposed 

project. Examples of the conditions placed on this particular certification include: 

Stowwater runoflfrom impewious rufoca shall be wntrvlled w ptvlarr the 

washing of debris into the watenq. ne Mtld vegetation shall be maintained 

and momi when disturbed or eded Stonnwater dminage facilities shall be 

designed, implemented, opemted, and maintained in accordance with the 

rqhwunn of the appliuble approving authority. 

23 
77~ a&icant is mquitui to pmvidc a mixing tower release smcnue to achieve instream wmpliance with Cl&s III trrout temperuhuc (2O[degrea] C) and ditsolvtd 

cqgen (5.0 mgfliter) standad pdor to the Rney Run/Church Creek confluence. 

‘IhcdesQnofthir smutun shall be appved by the Maryland Depanment of the 

Environment (MDE). 

77~ appiicaru is required to providc a waterdad management plan to minimize 

poti loadings into the rtscrvoir. 7Xs plizn shall be reviewed and approval by 

MDE prior to operation of the new dam facility. In conjunction with thir plan’s 

develipunt any souxa of pollutant loading dent@& duingfieki su~cys shall be 

eliminated or minim&d to the atent parriblr given available techno@. 

SeeAppeadixDforti#full~ofcondition,plactdon~ctrtitication. While 

fewoftherecoaditioruarcbared~ontraditioaalwaurquality~darb,allarc 

valid and relate to the maintenance of water quality or the designated use of the waters 

insomew8y. someofthewr&ionsareckarlyrequiremcntsofstauorlocallaw 

related to water quality other than those promulgated pum.aant to the CWA sections 

cnumeraud in Section 401(a)(l). Other wnditbns were designed to minimiz the 

project’sadvcntcffecaonwaterqualityovtrtbelifcofthcprojcct. 

In addition, Appendix D contains a list of conditions which West Virginia and 

Alaska placed on the ccrtiftcation of some Section 404 nationwide permiff Many of 

thewertv~conditionraretypicalofonerit~onindividualproposalrarwell. 

For any particular proj&, West Virginia will include more spccifk conditions designed 

to address the potential adverse effects of the project in addition to those enumerated 

in Appendix D. The conditions from Alaska arc used on a nationwide permit (#26) 

regarding isolated waters and waurt above headwaters. These conditions are dkusscd 

in Section V. c(1). 

24 
2. The Role of Mitigation ln Conditioning Certifkation 

Many States are trying to determine the role that mitigation should play in 401 

certifjcation decisions. We cannot answer this question definitively for each State, but 

offer as a guide EPA’s general framework for mitigation under the Section 404(b)(l) 

Guidelines used to evaluate applications for Section 404 permits. In assuring 

compliance of a project with the Guidelines, EPA’s approach is to first, consider 

avoidance of adverse impacts, next, determine ways to minimize the impacts, and 

finally, require appropriate and practicable compensation for unavoidable impacts. 

The Guidelines provide for avoiding adverse impacts by selecting the least 

environmentally damaging practicable altcmativt. In addition, wetlands are “special 

aquatic sites.” For such sites, if the proposed activity is not “water dependent,” 

practicable alternatives with less adverse environmental impacts are presumed to be 

available unless the applicant clearly demonstrates oth~nvise.~ 

The Guidelines also require an applicant to take “appropriate and practicable” 

sups to minimiz the impacts of the least environmentally damaging alternative 

selected4r Examples in the Guidelines for mimm&ing impacts through project 

modifications and best management practices are provided in Appendix E 

After these two steps are wmple- appropriate compensation is required for the 

remaining unavoidable adverse impacts. Compensation would consist of restoration of 

previously altered wetlands or creation of wetlands from upland sites. In most cases, 

compensation on or adjacent to the project site is preferred over off-site locations. The 

restoration or creation should be functionaliy equivalent to the values which are lost. 

Finally, compensating with the same type of wetland lost is preferred to using another 

wetland type. 

The States may choose to adopt mitigation policies which require additional 

replacement to help account for the uncertainty in the science of wetland creation and 

restoration. What is important brn EPA’s perspective is that mitigation not be used as 

a trade-off for w losses of wetlands, and that mitigation compensate, to the 

fullest extent posstble, for the functional values provided to the local ecosystem by the 

wetlands unavoidabty lost by the project. 

3. The Role of Other State kws 

Another question that has been asked is.what State law or other requirements 

are appropriately used to condition a 401 certification. The legislative history of 

Section 401(d) indicates that Congress meant for the States to condition certi5cation.s 

on compliance with any State and local law requirements related to water quality 

25 
preservation. The courts that have touched on the issue have also indicated that 

conditions that relate in any way to water quality maintenance are appropriate. Each 

State will have to make these determinations for itself, of course; there are any number 

of State and local programs that have components related to water quality preservation 

and enhancement. 

One issue that has arisen in two wurt cases is whether a State may use State 

law requirements, other than those that are more stringent than the provisions of 

Sections 301, 302, 303, 306 and 307 of the CWA(Nl(a)(l)), to &y water quality 

certification. An Oregon State court has ruled that a State may, and indeed must, 

include conditions on certi5cations re5ecting State law requirements “to the extent that 

they have any relationship to water quality.” “Only to the extent that [a State law 

requirement] has absolutely no relationship to water quality,” the wurt said, “would it 

not be an ‘other appropriate requirement of State law.*2 State agencies must act in 

accord with State law, of course, and thus the decision to grant certification carries with 

it the obligation to condition certification to et~ure compliance with such State 

requiremenu. 

This Smu court decision struck down a State agency’s denial of certi5cation 

because it was based on the applicant’s failure to certify compliance with a wunty’s 

comprehensive plan and land use ordinances. The wurt held that such “other 

appropriate rquirement(r) of Smu law? could not be the basis for w certi5cation. 

However, the court held that the agency should determine which of the provisions of 

the land use ordinances had any relation to the maintenance and preservation of water 

quality. Any such provisions, the court said, could and should be the basis for 

w placed on a cettification. 

Another State court, however, this one in West Virginia, has upheld the State’s 

denial of certification on the basis of State law requirements unrelated to the 

implementation of the CWA provisions enumerated in Section 401(a)(l)?3 The court 

simpiy issued an order upholding the State’s denial, however, and did not write an 

opinion on the subject. The questions raised by these two opinions are thorny. If 

States may not deny certification based on State law requirements other than those 

implementing the CWA, yet want to address related requirements of State law, they 

must walk a thin line between their State requirements and the limitations of their 

certification authority under federal law. 

One way to avoid these difficulties and to ensure that 401 certification may 

properly be used to deny certification where the State has determined that the activity 

cannot be conditioned in such a way as to ensure compliance with State water quality 

related requirementa, is to adopt water quality standards that include all State 

provisions related to water quality preservation. Congress has given the States great 

latitude to adopt water quality standards that take into consideration the waters’ use for 

26 
such things as “the propagation of fish and wildlife, recreational purposes, and . . . other 

purposcs.‘w Because of the broad authority granted by the Congress to the States to 

adopt water quality standards pursuant to Section 303 of the CWA, and because 

compliance with Section 303 is clcariy one of the bases on which a State can ~CJQ 

certification, the States can avoid the difficulty of the deny/condition dilemma by 

adopting water standards that include all the water quality related considerations it 

wishes to include in the 401 certi5cation review. 

For example, the State of Washington has included State water right permit 5ow 

requirements in its conditions for certification of a dam project. This is one means of 

helping to ensure that hydrological changes do not adversely affect the quality of a 

waterbody. However, a more direct approach is to include a narrative criterion in the 

State’s water quality standards that requires maintenance of base 5ow necessary to 

protect the wetland’s (or other waterbody%) living resources. The State of Kentucky has 

such a criterion in its water quality standards (see previous section IV. D(1) on “Using 

Narrative Criteria”). Placing the provision d&ctly in the State standards might better 

scnx the State if a certification is challenged because the requirement would be an 

explicit consideration of 4-01 certification. 

C Special Considemtions for Review of Sectkm 404 Permits: Nationtide and 

A&r-the-FactPtnnits 

L NationWkPumits. 

Pursuant to Section 404(e) of the CW& the Corps may issue general permits, 

after providing notice and an opportunity for a hearing, on a State, regional or 

nationwide basis for any category of activities involving discharges of dredged or fill 

material, where such activities arc similar in nature and will cause only minimal adverse 

environmental effects both individually and cumulatively. Th= permits may remain in 

effect for 5 years, after which they must be reissued with notice and an opportunity for 

a hearing. If the activities authorized by general permits may result in a discharge, the 

permits arc subject to the Smu water quality certification requirement when they are 

5nt proposed and when proposed for rcissuance. States may either grant certification 

with appropriate conditions or deny certification of these permits. 

Under the Corps’ regulations, if a State has denied certification of any particular 

general permit, any person proposing to do work pursuant to such a permit must first 

obtain State water quality certification. If a State has conditioned the grant of 

certification upon some requirement of State review prior to the activity’s commencing 

such condition(s) must be satisfied before work can begin. 

27 
Some States have reported that for general permits for which they have denied 

water quality certification or on which they have imposed some condition of review,. 

they are having difficulties ensuring that parties performing activities pursuant to these 

permits are applying to the State for water quality certifzation or othenvisc fuEIIing 

the conditions placed on the ccmcation prior to the wmmencement of work under 

these permits. 

At least one State is grappling with the problem through its 401 certification 

implementing regulations. The Smu of West Virginia denied certification for some 

nationwide permits issued by the Corps and conditioned the granting of certification for 

others. One of the conditions that West Virginia has imposed on those ccrtifkttions 

that it granted (which thus apply to all nationwide permits in the Smu) is compliance 

with its 401 certification implementing regulations. The rcguAations in turn require that 

any person authorized to wnduct an activity under a nationwide permit must, prior to 

conducting any activity authorized by a Corps general permit, publish a Class I legal 

advertisement in a qualikd newspaper in the county where the activity is prom to 

take place. The not& must ckscrii the activity, advise the public of the scope of the 

wnditionally granted certification, the public’s right to wmmcnt on the proposed 

activity and its right to request a hearing. The applicant must forward a ccrt&au of 

publication of this notice to the Smu agency prior to conducting any such activity.a 

Thcregulationfurther~tbat~penon~propcrty,inu~tin 

property or “other wnstitutionally pwtwtcd interest under (the West Virginia 

Constitution] [is] direct& affected by the Department’s certification” may request a 

hearing within 15 days of the publication of the notice given by the applicant The 

agency will then decide whether to “uphold, modify or withdraw certifkation for the 

individual activity.” 

West Vii program of&en have descrii the reasons for this procedure: 

. -ofahr--wr amcem...that-dn4grandfiu 

aczivihcouklpowliicncbnurovlbothindividrcrJand~barathe 

Irgumomnquinmawhoriudpaminol[undafadaolImu]wf~ 

~fofprb-~-?4?v?f~~~- TJle 

inf- onthenoticeirloggcdintoa~systemandasiteqxcijk 

tkspdonsheetitgcnaruad hspectonthtnmayvisitthesitewdetcnnine 

wmphnce with pennit wnditions and to evaluats cumuiativc impacts.ti 

Without such notice and a tracking system of activities performed under these 

permits, such as that adopted by West Virgin@ it will be diffkult for a State to 

evaluate whether or not to grant or deny water quality cetication for these permits 

when they wme up for rtissuance by the Corps or to condition them in such a way as 

to avoid adverse impacts peculiar to each of these general permits. It is advisable for 

28 
the States, regardless of whether they have granted or denied certification, to adopt as 

part of their 401 certification implementing regulations, provisions addressing these 

concerns for general permits. 

Another way in which some States are attempting to minimize the potential 

environmental impact of nationwide permits is by stringently conditioning their 

certification. Alaska, for instance, placed conditions on nationwide permit 26 regarding 

isolated waters and waters above the headwaters. One of the conditions Alaska used 

excludes isolated or headwater wetlands of known or suspected high value. When there 

is uncertainty about a particular wetland, the Corps is required to send pre-discharge 

notification to designated State officials for a determination. (See Appendix D for a 

full description of conditions on nationwide permit 26). 

2. Section 404 After-the-Fact Permits 

The Corps of Engineers’ regulations implementing Section 404 provide for the 

acceptance of after-the-fact permit applications for unauthorized discharges except 

under certain circumstances. Several States have expressed concern with after-the-fact 

permits, including the belief that once the discharges have taken place, the water 

quality certification process is moot. Because of that believe many States report that 

they waive certification for after-the-fact permits. Such an approach frustrates law 

enforcement efforts generally and the water quality certification process in particular 

because it encourages illegal activity. 

The evaluation of after-the-fact permit applications should be no different than 

for normal applications. Because the burden should be on the applicant to show 

compliance with water quality standards and other CWA requirements, rather than 

waiving certification, States could deny certification if the applicant cannot show from 

baseline data prior to its activity that the activity did not violate water quality standards. 

If data exist to determine compliance with water quality standards, the States’ analysis 

should be no different merely because the work has already been partially performed or 

completed. Arkansas denied after-the-fact water quality certification of a wetland fill as 

follows: 

[a certain slough] is currently classified as a warmwater fishery.... 

Draining and cleaning of [its associated] wetlands will significantly alter the 

existing use by drastically reducing or eliminating the fishery habitat and 

spawning areas. This physical alteration of the lake will prevent is from being 

"water which is suitable for the propagation of indigenous warmwater species 

of fish " which is the definition of a warmwater fishery. Thus, the . . . project 

[violates] Section 3 (A) of the Arkansas Water Quality Standards, “Existing 

instream water uses and the level of water quality necessary to protect the 

29 
existing uses shall be maintained and protected." The Department 

recommends the area be restored to as near original contours as possible. 

With after-the-fact permits, just as with any other permit application, if the State 

denies certification, the Corps is prohibited from granting a permit. If the applicant 

refuses to restore the area and does not have a permit, the applicant is subject to a 

potential enforcement action for restoration and substantial penalties for the 

unpermitted discharge of pollutants by the EPA, the Corps, a citizen under the citizen 

suit provision of the CWA, or by the State, if the activity violates a prohibition of State 

law. 

If the State determines that it will get a better environmental result by 

conditioning certification, it may choose to take that approach. The condition might 

require mitigation for the filled area (where restoration may cause more environmental 

harm than benefit, for instance) with restoration or creation of a potentially more 

valuable wetland area. 

In any event, a State should not waive certification of an after-the-fact permit 

application simply because it is after-the-fan 

VI. DEVELOPING 401 CERTIFICATION IMPLEMENTING REGULATIONS: 

ADDITIONAL, CONSIDERATIONS 

A comprehensive set of 401 certification implementing regulations would have 

both procedural and substantive provisions which maximize the State agency’s control 

over the process and which make its decisions defensible in court, The very fact of 

having 401 certification regulations goes a long way in providing the state agency that 

implements 401 certification with credibility in the courts. Currently, no State has “ideal” 

401 certification implementing regulations, and many do not have them at all. When 

401 certification regulations arc carefully considered, they can be very effective not only 

in conserving the quality of the State’s waters, but in providing the regulated sectors 

with some predictability of State actions, and in minimizing the State’s financial and 

human resource requirements as well. 

Everything in this handbook relates in some way to the development of sound 

water quality standards and 401 certification implementing regulations that will enhance 

wetland protection. This section addresses some very basic procedural considerations of 

401 certification implementing regulations which have not been treated elsewhere. 

These include provisions concerning the contents of an application for certification; the 

agency’s timeframe for review, and the requirements placed on the applicant in the 

certification process. 

30 
A. Review Timeframe and “Complete” Applications 

Under Section 401(a)(1) a State will be deemed to have waived certification if it 

fails to act within “a reasonable period of time (which shall not exceed one year) after 

receipt of such request” Program managers should keep in mind that the federal 

permitting or license agency may have regulations of its own which provide a time limit 

for the State’s certification decision. For instance, Corps regulations say that a waiver 

"will be deemed to occur if the certifying agency fails or refuses to act on a request for 

certification within sixty days after receipt . . . unless the district engineer determines a 

shorter or longer period is reasonable . . . ."47 FERC rules state that a certifying 

agency “is deemed to have waived the certification requirements if . . . [it] has not 

denied or granted certification by one year after the date the certifying agency received 

the request”.48 EPA regulations for Section 402 in non-authorized States set a limit of 

60 days unless the Regional Administrator finds that unusual circumstances require a 

longer time.49 

States should coordinate closely with the appropriate federal agency on timing 

issues. For example, Alaska negotiated joint EPA/State procedures for coastal NPDES 

permit review. The agreement takes into account and coordinates EPA, Coastal Zone 

Management, and 401 certification time frames. 

It is also advisable for the States to adopt rules which reasonably protect against 

an unintended waiver due, for example, to insufficient information to make a 

certification decision or because project plans have changed enough to warrant a 

reevaluation of the impacts on water quality. Thus, after taking the federal agencies’ 

regulations into account, the State’s 401 certification regulations should link the timing 

for review to what is considered receipt of a complete application. 

Wisconsin, for instance, requires the applicant to submit a complete application 

for certification before the official agency review time begins. The State’s regulations 

define the major components of a complete application, including the existing physical 

environment at the site, the size of the area affected, all environmental impact 

assessment information provided to the licensing or permitting agency, and the like. 

The ruler State that the agency will review the application for completeness within 30 

days of its receipt and notify the applicant of any additional materials reasonably 

necessary for review. Although the application will be deemed “complete” for purposes 

of review time if the agency does not request additional materials within 40 days of 

receipt of the application, the agency reserves the right to request additional 

information during the review process.50 

31 
In the case of FERC projects, West Virginia has taken additional precautions 

with regard to time for review: 

If the ptvject application is altered or modi’ dkng the FERC licensing 

ptvcess p&r to FERC’s Jnai decikh the applicant shail inform the 

Depamunt of such changes. 77~ De~mnent may review such akmtins or 

mudijkations and, if the changes are deemed significant by the Director, the 

Depnnmt may rquim a new appiicatkm fat cmjfication l7ie Depanment 

will have ninety (RI) days to miew such changes or until the end of the year 

mhvphd..., WhkJuver is longer, to ti&mine whether to nquk a 

new ap*tion or to alter itt oigid ce@ication d&ion. If the 

drporrmmr nquims a new applicarion buxwe of a &n&ant appLict&n 

modijhltio~thentheDcpanmcnt ~iUhaves&(6)mon1hstoirsueits 

ce@cuion de&ion fiwn the date of submission of the appiication51 

& RequiremenU for the ApplAcant 

It is very important, in particular for conserving the agency’s resources and 

ensuring that there is slBicknt infoImation to deuxmine that water quality standards 

and other provisions of tbe CWA will not be viohed by the activity, to clarify that it b 

tbc appiicant who is responsible for providing or proving particular facts or 

requirements. 

For inrtance, Section 401(a)(l) requires that a State “establish procedures for 

public notice in the case of all applications for c&i6cation.” West Virginia requ&~ 

applicants for FERC licenses to be rqxmsiiik for this notice. In the case of Section 

104permitr,W~tVirginiaharapintbotict~withthcCo~toissuepublic 

notices for 404 applications which also notify the public of the State certification 

procus. Tbur,thtrcbnonttdforWestVirsiniatorequirctbeapplicanttodosofor 

tlluc glcImi@ 

A second wxuidcnatjon is that States should require the m to demonstrate 

the project’s compliance with applicabk federal and State law and regulation. EPA’s 

401 certification regulations name the sources of information a State should usc.as that 

contained ia the application and other information “furnished by the applicant” 

sufficient to allow the agency to make a statement that water quality standards will not 

be violatds Of course in addition, the regulations also refer to other information the 

agency may choose to examine which is not fwnishcd by the applicant. 

32 
Ohio, for instance, has written a requirement for the applicant to demonstrate 

compliance into its 401 certification implementing regulations: 

(A) 7ke director shall not imu a Section 401 water quality cempation 

unless he determines that the avolicant has demonstrated that the discharge 

of dmdged or jill material to watts of the state or the creation of any 

obsmuxion or altemtion in waters of the state will? (I) Not prevent or 

interfere wirh the attainment or maintenance of applicable water quality 

standarris; (2) Not ES& in a violation of any applicable pro&n of the 

following sections of the Fedeml Wbrcr Polktion Control Act [301, 302, 303, 

306 and 3071. 

(B) Notwithstanding an appkant’s demo-n of the cnktia in pamgmph 

(A)... the dirrctor may dtny an ap~tion for a Section 401 water quality 

adverse long or short term impact on water q~8lity.~s 

C Permit Fees 

A ycry significant concern for all States who plan to initiate or expand their 401 

ccrtikation program is the availability of fund& Application fee requirements arc a 

potential funding source to supplement State program budgets. The State of 

California’s Regional Water Quality Control Boards require 6ling fees for 401 

certification applications unless a Board determines that certification is not required. 

The fee structure is spelled out in the California Water Code. The money collected 

from the fees goes into the State agency’s general fund. The Regional EJoards may 

recover some portion of the fee through the budget request process. The State of 

Ohio also has a fee smxture for 401 cctication applicants. In Ohio, however, fees go 

into the State’s general fund, rather than back into the State agency. Neither State 

collects fees sufficient to support the 401 certification program fuliy. Despite these 

potential barriers, application fees could *de a much needed funding source which 

States should explore. 

D. Basis for certiflcatioa Decisions 

The regulations should also set out the grounds on which the decision to grant or 

deny certification will be based, the scope of the State’s review, and the bases for 

conditioning a certification. If a State has denied water quality certification for a 

general permit or has conditioned such a permit on some requirement of State review, 

the State’s 401 certification implementing regulations might also outline the obligations 

33 
of a person proposing to accomplish work under such a permit. The following is a 

hypthetical example of regulatory language a State might use to define the grounds for 

the State’s decision to granf condition, or deny certification: 

In order to obtain certification of any proposed activity that may result in a 

discharge to waters of the United States, an applicant must demonstrati that 

the entire activity over its lifetime wiU not violate or interfere with the 

attainment of any limitations or standards contained in Section 301, 302, 303, 

306, and 307, the federal regulations promulgated pursuant thereto, and any 

pmvisions of state law or regulation adopted pursuant to, or which are more 

stringent than, those provisions of the Clean Water Act. 

7%~ agency may condition certification cm any requirements ax&tent with 

emmng the applicant’s compliance with the pr&&as listcdabovt,orwith 

any other requirements of statt law related to the maintcnann preservation, 

or enhancement of watu quality. 

This sample regulatory languaec provides the grounds for the ccrti&ation decision, sets 

the~peofreview(lifctimceff~ofthe~activity)~sStattrthatthe 

m must demonstrate axnpliance. For purposes of conditioning the certification 

in the event it is granted, the same standards can be applied, with the addition of any 

other requirements of State law that are related to water quality. 

Regulations are not project specific They must be generally applicable to all 

projects subject to 401 certification review, while at the same time providing reasonable 

notice to an applicant regarding the general start&& employed by the agency in the 

certification procus. (A State may choose to adopt licensc/permit-speci6c regulations 

for 401 certi&ation, but such regulations will still have to be applicable to all activities 

that may occur pursuant to that license or permit& 

There are other considerations that should be addressed in 401 certification 

implementing regulations, some of which have been mentioned in other parts of this 

handbook These include provisions which require applicants for federal licenses and 

permits which may result in a discharge to apply for water quality certification; 

provisions which define waters of the State to include wetlands and which define other 

pertinent terms; and provisions addressing general permits. 

34 
VII. EXISTING AND EMERGING SOURCES OF DATA TO AID 401 

CERTIFICATION AND STANDARDS DECISION MAKERS 

According to a number of State program managers, more data on wetland 

functions, or “uses,” would greatly assist the certification process. Wetland ecosystems 

not only perform a wide variety of functions but do so in varying degrees. Public 

agencies and private applicants currently employ a number of assessment methods such 

as the Wetlands Evaluation Technique and the Habitat Evaluation Procedure to 

determine what functions or uses exist in a particular wetland system.56 In many States, 

however, water quality certification reviewers lack the resources to perform even a 

simple assessment of a wetland’s boundaries, values and functions. Information about 

the location and types of wetland systems, and of the functions they may perform (such 

as flood storage, habitat, pollution attenuation, nutrient uptake, and sediment fixing) 

would aid standard writers in developing appropriate uses and criteria for wetlands, and 

allow 401 certification officials to conduct a more thorough review. 

Several States already have extensive knowledge of their wetland resources, and 

data gathering efforts are also being undertaken by EPA, the U.S. Fish and Wildlife 

Service and other agencies .57 Although these efforts to inventory and classify wetlands 

have not been closely tied to the 401 certification process in the past, these existing 

data can be valuable sources of information for 401 certification reviewers. It is 

important to remember, however, that wetland boundaries for regulatory purposes may 

differ from those identified by National Wetland Inventory maps for general inventory 

purposes. The EPA, Corps of Engineers, Fish and Wildlife Service, and Soil 

Conservation Service have adopted a joint manual for identifying and delineating 

wetlands in the United States. The manual will be available in June, 1989.58 

There arc several programs that offer technical support for 401 certification 

decisions. For example, approximately forty States have worked with the Nature 

Conservancy to establish “natural heritage programs,” which identify the most critical 

species, habitats, plant communities, and other natural features within a State’s 

territorial boundaries. Most States now have a State natural heritage office to 

coordinate this identification program. Inventory efforts such as the natural heritage 

program could give 401 certification managers some of the information they need to 

limit or prohibit adverse water quality impacts in important wetland areas. Specifically, 

the inventory process can identify existing wetland uses in order to maintain them. The 

information may also be used in identifying wetlands for Outstanding Resource Waters 

designation.59 

The Fish and Wildlife Service maintains a Wetlands Values Data Base which 

may be very useful in identifying wetland functions and in designating wetland uses for 

water quality standards. The data base is on computer and contains an annotated 

bibliography of scientific literature on wetland functions and values.60 Several States 

35 
have established critical area programs to identify and protect unique and highly 

sensitive land and water resources. These programs can provide data to the State 

water quality certification office and thereby strengthen the scientific basis for 401 

certification decision making.61 

Another potential source of information which might identify wetlands 

appropriate for designation as Outstanding Resource Waters are the wetland plans 

which each State is required to develop to comply with the 1986 Emergency Wetlands 

Resources Act. Beginning in fiscal year 1988, Statewide Comprehensive Outdoor 

Recreation Plans (SCORP) must now contain a Wetlands Priority Conservation Plan 

approved by the Department of Interior. Although these plans are primarily focused 

on wetlands for acquisition, they are a potential source of data on wetland locations 

and functions. The wetlands identified may also be suitable for special protection under 

the Outstanding Resource Waters provisions of the antidegradation policy. 

The Advance Identification program (ADID), conducted by EPA and the 

permitting authority, may also furnish a considerable amount of useful information. 

EPA’s 404(b)(1) Guidelines contain a procedure for identifying in advance areas that 

are generally suitable or unsuitable for the deposit of dredged or fill material.62 In 

recent years, EPA hat made greater use of this authority. ADID is often used in 

wetland areas that are experiencing significant development or other conversion 

pressures. Many ADID efforts generate substantial data on the location and functions 

of wetlands within the study area such as wetland maps, and habitat, water quality, or 

hydrological studies. 

Special Area Management Plans (SAMPs) are another planning process which 

may yield useful information. SAMPs refer to a process authorized by the 1980 

amendments to the Coastal Zone Management Improvement Act, which provides grants 

to States to develop comprehensive plans for natural resource protection and 

“reasonable coastal-dependent economic growth. "63 The SAMP process implicitly 

recognizes the State water quality certification process, directing all relevant local, State, 

and federal authorities to coordinate permit programs in carrying out the completed 

SAMP. The Corps of Engineers has supported and initiated several of these processes. 

In addition, other SAMPs have been completed by several States. 

Much of these data can be collected, combined, and used in decision making 

with the aid of geographic-based computer systems that can store, analyze and present 

data related to wetlands in graphic and written forms.64 A reviewing official can quickly 

access and overlay a range of different existing information bases such as flora and 

fauna inventories, soil surveys, remote sensing data, watershed and wetland maps, 

existing uses and criteria, and project proposal information. 

36 
Finally, data is presently emerging on the use of wetlands as treatment areas for 

wastewater, stormwater, and non-point discharges.65 Florida, for instance, has adopted 

a rule on wastewater releases into wetlands. 66 Florida prohibits wastewater discharges 

into the following kinds of wetlands: those designated as outstanding waters of the 

State; wetlands within potable water supplies; shellfish propagation or harvesting waters; 

wetlands in areas of critical State concern; wetlands where herbaceous ground cover 

constitutes more than thirty percent of the uppermost stratum (unless seventy-five 

percent is cattail); and others. Wastewater discharges are permitted in certain wetlands 

dominated by woody vegetation, certain hydrologically altered wetlands, and artificially 

created wetlands, however, the State applies special effluent limitations to take account 

of a wetland’s ability to assimilate nitrogen and phosphorus. It also applies qualitative 

and quantitative68 design criteria. 

The rule establishes four “wetland biological quality” standards. First, the flora 

and fauna of the wetland cannot be changed so as to impair the wetland’s ability to 

function in the propagation and maintenance of fish and wildlife populations or 

substantially reduce its effectiveness in wastewater treatment. Second, the ShannonWeaver diversity index of benthic macroinvertebrates cannot be reduced below fifty 

percent of background levels. Third, fish populations must be monitored and 

maintained, and an annual survey of each species must be conducted. Fourth, the 

“importance value” of any dominant plant species in the canopy and subcanopy at any 

monitoring station cannot be reduced by more than fifty percent, and the average 

“importance value” of any dominant plant species cannot be reduced by more than 

twenty-five percent” 

These types of efforts, constantly being adjusted to take account of new 

information in a field where knowledge is rapidly expanding, are fertile sources of 

information for wetland standard writers and 401 certification decision makers. 

VIII. SUMMARY OF ACTIONS NEEDED 

This handbook has only scratched the surface of issues surrounding effective use 

of 401 certification to protect wetlands. The preceding discussion and examples from 

active States have highlighted possible approaches for all States to incorporate into their 

401 certification programs. The handbook shows that there are many things that a 

State can act on right away to improve the effectiveness of 401 certification to protect 

the integrity of its wetlands. At the same time, there are improvements to water quality 

standards for wetlands which will have to take place within a longer timeframe. 

38 
A. Steps States Can Take Right Away 

• 

• 

• 

• 

• 

• 

resources. 

States should designate uses for their existing narrative water quality 

functions typically associated with given wetland types. Such potential uses 

could be verified for individual applications with an assessment tool such as 

the Wetlands Evaluation Technique or Habitat Evaluation procedure. 

States should tap into the potential of the outstanding resource waters tier of 

the antidegradation policy for wetlands. it may not be an appropriate 

designation for all of a state's wetlands, but it can provide excellent 

protection to particularly valuable or ecologically sensitive wetlands from both 

physical and chemical degradation. 

States should incorporate wetlands and 401 certification into their other water 

quality management processes. Integrating this tool with other mechanisms 

such as coastal one management programs, point and nonpoint source 

programs, and water quality management plans, will help fill the gaps of each 

individuals tool and allow better protection of wetlands systems from the 

whole host of physical, chemical, and biological impacts. 

• 

All states should begin by explicitly incorporating wetlands into their 

definitions of state waters in both state water quality standards regulations, 

and in state 401 certifications regulations. 

States should develop or modify their regulations and guidelines for 401 

certification and water quality standards to clarify their programs, codify 

their decision process, and to incorporate special wetlands considerations into 

the more traditional water quality approachesStates should make more effective use of their existing narrative water quality 

standards (including the antidegradation policy) to protect wetlands. 

States should initiate or improve upon existing inventories of their wetland 

Time and the courts may be needed to resolve some of the more complicated 

and contentious issues surrounding 401 certification such as which federal permits and 

licenses require 401 certification. EPA intends to support States in resolving such 

issues. 

38 
OWP, in cooperation with the Office of Water Regulations and Standards 

(OWRS), will build on this 401 certifjcation handbook by developing guidance in FY 

89-90 on water quality standards for wetlands. The guidance will provide the 

framework for States to incorporate wetlands into their water quality standards. The 

guidance will: require States to include wetlands as “waters of the State;” provide 

methods to designate wetland uses that recognize differences in wetland types and 

functions; address some chemical-specific and narrative biological criteria for wetlands; 

and discuss implementation of State antidegradation policies. 

B: Laying the Groundrrorlc for Future Dedsions 

Many States are successfully applying their existing narrative an& to a lesser 

extent, numeric water quality criteria to their wetland resources. Nevertheless, more 

work is needed to test the overall adequacy and applicability of these standards for 

wetlands, and to develop additional criteria where needed. 

For example, existing criteria related to pH do not account for the extreme 

natural acidity of many peat bogs nor the extreme Ualinity of certain fens. Also, many 

existing criteria focus too extensively on the chemical quality of the Water column 

without adequately protecting the other physical and biological components which are 

an integral part of wetland aquatic systems. Some numeric criteria for chemicals may 

not be protective enough of species (particularly bird specks) which feed, breed, and/or 

spend a portion of their life cycle in wetlands. Hydrological changes can have severe 

impacts on wetland quality, but these changes are rarely addressed in traditional water 

quality StanResearch of interest to State w is being sponsored by the Wetlands 

Research Program of EPA’s office of Research and Development (ORD). Research 

covers three areas: Cumulative E&ct.s, Water Quality, and Mitigation. Although these 

efforts WiII be &vdoped over ScvuaI year& interim products will be distri%uted to the 

States. States may find these products of use when developing criteria and standards, 

when identifying and designating wetlands as outstanding resource waters, and when 

making 401 ccrt&ation dccisionr. 

EPA’s research on cumulative effects of wetlands takes a regional perspective. 

Through a series of regional pilot studies imtolving landscape anam ORD is 

correlating water quality conditions at the outlets of major watersheds with the 

percentage of wetlands in these watersheds. The types of wetlands, their position, and 

39 
non-wetland factors arc also being analyzed. The results wiIl allow water quality 

q in these regions to specify the optimal percentage and combination of vafious 

types of wedands needed to maintain water quality of lakes and rivers. Such watershed 

criteria could be used to guide efforts to create or restore wetlands for the purpose of 

intercepting and improving the quality of nonpoint runo& 

The pilot studies will also determine which wetland features can be used to 

predict wetland functions. Once differences among wetlands can be identified based on 

their functions, it will be possible to classify particular wetlands with regard to specific 

designated uses. 

The CumuIativc effects program is using the remIts of the pilot studies as 

technical support for developing a “synoptic Assessment Method”. This method has 

alrcadybeenuscdtorankwaterskdswithincertainrcgionr,afxordingtothelikely 

cumulative bcnc&s of their wetlands. Also+ sources of information useful for 

derignrrtinourerofindividualwe~weredercnbedbyORDinEpA’sQaftguidanct 

for Advance Identifkatkm Appcndk D. ‘ED Informadononregionanyrareor~ 

~wildlife,whicbwuldbt~aroncbaritfor~bli;rhing”~aquatic 

arear”in~WC~~~aYailablefromtbcORDW~R~Team 

at&eConnllitEPALab. 

SevualrcsarchprojtxtsbeingproparedbytbeWetlandResearchProgram 

couldproducciufonMtionvcryuscfuItowaterquaIitymanrgen. Thesearedescriid 

inORD’spubkation,“WethndsandWaterQual$ AResearchandMonitoring 

Impkmultation Plan for the Years 198%1994”. Many d these proporab arc planned, 

butwiJ.Ihingcuponfundinsdecidoarinfuturebudgetyun. Tho6ewhichdrewthc 

most support from a 1988 EPA workshop of scientists and State program administrators 

were as fonm 

0 Water Qdity Criteria to Pmtect Wetland Function. Existing quality criteria for 

surface waters would be reviewed for applicability to wetlands. Methods for 

biological and cbtmical monitoring of wetlands would be r&ned, and a field 

manual produced 

40 
0 Ecological Status and Trends of the Wetland Resource. A nationwide network 

would be established to monitor the wetland resource. Field surveys would 

define the expected range of numerical values within each region for particular 

chemicals and especially, for biological community metrics, across a gradient of 

sites ranging from nearly-pristine to severely disturbed. 

0 Waste Assimilative Limits of Wetlands. Observable features which determine 

the long-term ability of wetlands to retain contaminants and nutrients would be 

tested. “Safe” loading limits for various substances would be proposed for 

specific wetland types or regions. Similar kinds of information would also 

become available from a research effort focused specifically on artificial wetlands 

and coordinated by EPA-Cincinnati, in cooperation with the Corvallis and Duluth 

Labs. That study would recommend engineering design factors essential in 

wetlands consttuctcd by municipalities for tertiary wastewater treatment. 

Information useful to 401 cert&ation Ml also originate brn ORD5 mitigation 

research. This research aims to determine if created and restored wetlands replace 

functions lost by wetland destruction permitted under Section 404. The rcearch is 

orpized to (1) synthesize current knowledge on wetland creation and restoration, (2) 

compile 404 permit information on created and restored wetlands, and (3) compare 

crcatedandnaturally~ wedan& Research results will be incorporated into a 

“Mitigation Handbook” useful for dcsi@ng and evaluating mitigation projects. A 

literature synthesis being developed as a Ruvisional Guidance Document will be 

available in 1989. A provisional wxsionofthehandbookwillbcproducedin1990. 

This will assist States in identifying areas at greatest risk due to 404 permit activities 

and thus help target 401 certi&ation and water quality standards activities 

41 
Provided below are State 401 certification contacts and EPA wetlands contacts 

who can provide assistance in applying 401 to wetlands. 

EPA has asked the Council of State Governments (CSG) to maintain a database 

of State wetland contacts and programs. In order to help keep the database up to 

date, please contact CSG when you have changes in your program or staff contacts, or 

if you come across inaccuracies in other State programs. You can access this database 

using virtually any computer with a modem. In order to obtain your free username 

and password contact: 

The Council of State Governments 

P. O. Box 11910, Iron Works Pike 

Lexington, Kentucky 40578 

phone: (606) 252-2291 

APPENDIX A 

FEDERAL 401 CERTIFICATION CONTACTS FOR WETLANDS 

Dianne Fish 

Wetlands Strategies Team 

(A-104F) 

Environmental Protection Agency 

401 M Street, SW 

Washington, D.C. 20460 

Phone: (202) 382-7071 

EPA Region I 

Doug Thompson, Chief 

Wetlands Protection section (WPP1900) 

John F. Kennedy Federal Building 

Boston, Massachusetts 02203 

(617) 565-4421 

Jeanne Melanson 

Outreach and State programs Staff 

(A-104F) 

Environmental Protection Agency 

401 M Street, SW 

Washington, D.C. 20460 

Phone: (202) 475-6745 

EPA Region II 

Mario del Vicario, Chief 

Maine/Wetlands Prot. Branch (2WMMWP) 

26 Federal Plaza 

New York, New York 10278 

(212) 264-5170 

42 
EPA Region III 

Barbara De Angelo, Chief 

Marine & Wetlands Policy Sect. (3ES42) 

841 chestnut street 

Philadelphia, Pennsylvania 19107 

(215) 597-1181 

EPA Region IV 

Tom Welborn, Acting Chief 

Wetlands Section (4WM-MEB) 

345 Courtland Street, NE 

Atlanta, Georgia 30365 

(404) 347-2126 

EPA Region V 

Doug Ehorn, Deputy chief 

Water Quality Branch (5WQ-TUB8) 

230 south Dearborn street 

Chicago, Illinois 60604 

(312) 886-0139 

EPA Region VI 

Jerry Saunders, Chief 

Technical Assistance Sect. (6E-FT) 

1445 Ross Avenue 

12th Floor, Suite 1200 

Dallas, Texas 75202 

(214) 655-2260 

EPA Region VII 

B. Katherine Biggs, Chief 

Environmental Review Branch (ENVR) 

726 Minnesota Avenue 

Kansas city, Kansas 66101 

(913) 236-2823 

EPA Region VIII 

Gene Reetz, Chief 

Water Quality Requirements Sect. 

One Denver Place 

Suite 1300 

999 18th Street 

Denver, Colorado 80202 

(303) 293-1568 

EPA Region IX 

Phil Oshida, Chief 

Wetlands Section (W-7) 

215 Fremont Street 

San Francisco, California 94105 

(415) 974-7429 

EPA Region X 

Bill Riley, Chief 

Water Resources Assessment (WD-138) 

l200 Sixth Avenue 

Seattle, Washington 98101 

(206) 442-1412 

CD. Robison, Jr. 

Alaska Operations Office, Region X 

Federal Building Room E551 

701 C Street Box 19 

Anchorage, Alaska 99513 

EPA Wetlands Research 

Eric Preston 

Environmental Research Lab 

Corvallis/ORD 

200 S.W. 35 street 

Corvallis, OR 97333 

(503) 757-4666 

Bill Sanville 

Environmental Research 

Laboratory/ORD 

6201 Congdon Blvd 

Duluth, MN 55804 

(218) 720-5723 

43 
State 401 CERTIFICATION CONT’ACI’S 

Brad Gane 

Field Operation Division 

Dept. of Enviromcntal Management 

2204 Perimeter Road 

Mobile, Alabama 36615 

(205)479X36 

Walter Tatum 

Field Operation Division 

Dept. of Enviromcntal Management 

2204 Perimeter Road 

Mobile, Alab8una 36615 

(205) 9687576 

Doug Redburn 

Dept. of Etwiromental Qmscrvation 

3220HospitalDt+c 

Junaw Alaska 99811 

(903) 465-2653 

Mr. Dick stokes 

soutbcast OEla 

Department of Euvironmental 

-don 

P.O. Box 2420 

9ooo Old Glacier Highway 

JMcau,Alaska 99803 

(907) 789-3151 

Mr. Tii Rumfelt 

SouthfxntraJ O&x 

Depnrtment of EnvironmCntal 

conrervation 

437 E Street, Second Floor 

Aacborage, Alaska 99501 

(907) 274-2533 

Mr. Paul Bateman 

Northern Office (Arctic) 

Department of Environmental 

Conservation 

1001 Noble Street, Suite 350 

Fairbanks, Alaska 99701 

(907) 452-1714 

Ms. Joyce Beehan 

Northern Office (Interior) 

Department of Environmental 

Conservation 

1001 Noble Street, Suite 350 

Fairba&,Ala&a 99701 

(907) 452-1714 

SUVCDKMI 

Dept. of PolUon Control and Ec&gy 

8001 National Drive 

LjttkRo&Arkansas 72207 

(501) 652-7444 

Jack Hodges 

State Water Resources Control Board 

P.O. Box loo 

Sacramento, California 95801-0100 

(916) 322-0207 

Jon schcnchligt 

Water Quality Control Division 

4210 E 11th Avenue 

Denver, CQlotado 80220 

(303) 320-8333 

Douglas E CoopWetlands Management Section 

Dept. of %. Prot. Water Resources 

Room 203, State Office Building 

165 Capitol Avenue 

Hartford, (hnecticut 06106 

(203) 566-7280 
WiIliam F. Moyer 

Dept. of Natural Rtsou.rccs and 

Environmental Control 

89 King’s Highway 

P.O. Box 1401 

Dover, Delaware 19903 

(302) 736-4691 

Richmond Williams 

Dept. of Natural Resources and 

Environmental Control 

hgal OtEcc 

89 King’s Highway 

P.O. Box 1401 

Dover, Delaware 19903 

(302) 7364691 

Randall L Axmstrong 

Division of Emkonmental Permitting 

Dept. of Env. Regulation 

2600 Blairstone Road 

Talkhasq Florida 32399 

(904) 48w130 

MikcCrcason 

Ewironmental Protection Division 

Dept. of Natural Resources 

205 Butler Street SE 

Floyd Towers East 

Atlanta, Georgia 30334 

ww 6564887 

James Km Ikcda 

Environmental Protection & Health 

Scnficcs Division 

Department of Health 

1250 Punchbowl Street 

P.O. Box 3378 

Honolulu, Hawaii 96801-9984 

(808) 548-6455 

John Winters 

Water Quality and Standards Branch 

Dept. of Env. Management 

105 S. Meridian Street 

Indianapolis, Indiana 462064015 

(317) 243-5028 

Al Keller 

Environmental Protection Agency 

2200 Churchill Road 

Springfield, Illinois 62706 

(217) 7824610 

Bmcc Yurdin 

Environmental Protection Agency 

2200 Churchill Road 

Springkld, Illinois 62706 

(217) 782-0610 

Jerry Yodcr 

Bureau of Water Quality 

Division of Environmental Quality 

450 West state street 

Boisc$Idaho 83720 

(208) 334-5860 

Ralph Turkle 

Department of Natural Rcsowcu 

9OOEartGraadAvcnUe 

Des Moines, Iowa 50319 

(515) 281-7025 

boy Haage 

Department of Natural Resources 

900 East Grand Avenue 

Henry A Wallace Of& Building 

Des Moines, Iowa 50319 

(515) 281-8877 

45 
Larry== 

Dept. of HcaJtb and Environment 

Building 740 

Forbes Field 

Topeka, Kansas 66620 

(913) 862-9360 

Paul Bcckky 

Division of Water 

Dept. of Natural Resources 

Fon Boone Plaza 

Frankfort, Kentucky 40601 

(502) m-310, ext. 495 

DaleGiven 

Water Poilution Control 

P.O. Box 44091 

BwunRougc,- 70804 

(504) 3424363 

Donald T. WithcriU 

Dcpt.ofElIv.Protebn 

DivisionofUmming 

Augusta, Maine 04333 

(207) 289-2111 

Mary Jo Garries 

IXViShOfsDcp8mcntofthc-t 

201watPrutonsaeet 

w 21201 

Jo AM Watson 

Division of stmdards 

Dqn of Haith md Mental Hygiene 

201watPrestonstrcxt 

Bahimorc, Maryland 21201 

(301) 225-6293 

Ken Chrest 

Water Quality Bureau 

Cogwell Building 

Helena, Montana 59620 

(406) 444-2406 

Bill Gaughan 

Div. of Water Pollution 

Dept. of Env. Quality Enginceting 

1 Winter Strut 

Boston, Massachusetts 021@ 

(617) 292-5658 

Judy Perry 

Regulatory Branch Div. of Water 

Pollution 

Dept. of EIIV. Quality Engineering 

1 Winter Street 

Bo6to& Massachusetts 02108 

(617) 292-5655 

LesThomas 

Iad and Water Management Div. 

Dept. of Natural Resources 

P.O. Box 30028 

Iansing,- 4m9 

(517) 3734244 

R-m 

Buraw of Pollution Control 

Dept. of Natural Ruourazs 

Bax10385 

Jackson, Mississippi 39209 

(601) %l-5171 

atarlcs chisolm 

Bureau of Pollution amtml 

Dcpt of Natural Resources 

BOX10385 

Jackson, Mississippi 39209 

(601) %l-5171 
Jim Morris 

Water Quality Management Section 

Dept. of Natural Resources 

Box 10385 

Jackson, Mississippi 39209 

(601) 961-5151 

LouisFlyM 

MPLA 

1935 West County Road B-2 

Roseville, Minnesota 55113 

(612) 29&7355 

hlrie K cdkrot 

Water Suppiy and Pollution Control 

HazcnDrive 

P.O. Bax 95 

concord, New Hamphh 03301 

(603)27I-2358 

FredElkiDd 

Water Supply axxl Pollution Control 

DCpLOfEltV.servictr 

HamlDrivc 

P.O. Bcx 95 

Concord, New Hampshire 03301 

(603) 271-2358 

Ray-r 

Water Supply and Pollution Control 

HazcnDrivc 

P.O. Bax 95 

Cotmrd, New Hampshire 03301 

(603) 2714358 

George Danskin 

Div. of Regulatory A&irs 

Dept. of Env. Conservation 

50 Wolf Road 

Albany, New York 12233 

(518) 457-2224 

William Clarke 

Div. of Regulatory Affairs 

Dept. of Env. Conservation 

50 Wolf Road 

Albany, New York 12233 

(518) 457-2224 

U. Gale Hutton 

Water Quality Division 

Dept. of Env. Control 

P.O. Box 94877 

State House Station 

Iincoln, Nebraska 685094877 

(402) 471-2186 

George Horztpa 

Division of Water Resources 

Dept. of Env. Protection 

cNo29 

Trhton, New Jersey 08625 

(609) 633-7021 

Barry chaloftky 

Division of Water Resources 

Dept. of Env. Protection 

au029 

Trenton, New Jersey 08625 

(6u9)633-7021 

Robert Pie1 

Div. of Coastal Rcsourccs 

Dept. of Env. Protection 

CN 401 

Trenton, New Jersey 08625 

(609) 633-7021 

David Tague 

Env. Improvement Division 

P.O. Box 968 

Sante Fe, New Mexico 87504-096g 

(505) 827-2822 

47 
Michael T. Sauer 

State Dept. of Health 

1200 Missouri avcIluc 

Bismarck, North Dakota 58505 

(701) 224-2354 

Paul Wilms 

Div. of Env. Management 

Dcpanment of Natural Rcsourm 

and Community Development 

P.O. Box 27687 

Raleigh, North Caroiina 27611 

(919) 733-7015 

Bill Mills 

Water Quality Section 

Department of Natural Resources 

P.O. Bax 27687 

Raleigh, North Carolina 27611 

(919) 7334083 

Collcen Crook 

Div.ofWatcrQualityand 

Ohio EPA 

1800 Watermark Drive 

P.O. Bax 1049 

Columbus, Ohio 432660149 

(614) 981-7130 

Brooks Kirlin 

Water Resource Buard 

P.O. Bax 53585 

Oklahoma city, Oklahoma 73152 

(405) 271-2541 

Glen Carter 

DCptAfEIIV.ouality 

P.O. Bax 1760 

Portiand,oregon 97207 

(503) 229-5358 

Louis W. Bcrcheni 

Bureau of Water Quality 

Dept. of Env. Resources 

P.O. Box 2063 

Harrisburg, PcnnsyhwCa 17120 

(717) 787-2666 

Peter Slack 

Bureau of Water Quality 

Dept. of Env. Resources 

P.O. Box 2063 

Harrirburg, Pennsyh&a 17120 

(717) 787-2666 

EdWdS.sEymaruki 

Dcpt of Eav. Management 

Division of Water Resources 

291 Promenade street 

Providence, Rhode Island 029085767 

(401) 2n-3%1 

~lynWym0~ 

OfEcc of Ewironmental coordination 

Department of Ewiranmental 

Management 

83 Park Street 

Providence, Rhode Island 02903 

(401) 277-3434 

chcsterEsansblIry 

DivishnofWatcrQuality 

DCpLOfH&hIlIKiEIlV.C0I8trO~ 

2600 Bull Street 

Columbia, South Carolina 29201 

(803) 75854% 

Div. of Water Pollution Control 

Dept. of Health and Env. 

150 Ninth North Avenue 

Nashville, Tennessee 37203 

(615) 741-7883 

48 
Robert Silcus 

Water Commission 

P.O. Box 13087 

Capitol Station 

Austin, Texas 78711 

(512) 463-8202 

Dr. Donald Hilden 

Bureau of Water Pollution Control 

P.O. Box 45500 

salt Lake city, Utah 84145 

(801) 533-6146 

Carl Page1 

Agency of Natural Resources 

Dept. of Environmental Conservation 

103 s. Main street 

Waterbury, Vermont 05676 

(802) 244-6951 

Steve syz 

Agency of Natural Resources 

Dept. of Env. conservation 

103 s. Main street 

Waterbury, Vermont 05676 

(802) 244-6951 

Jean Gregory 

Of&c of Water Resources Management 

Water Control Board 

P.O. Box 11143 

Richmond, Virginia 23230 

(804) 367-6985 

Mike camavale 

Water Quality Division 

state Dcpt of Env. Quality 

Herschlcr Building 

cheycIule, Wyoming 82202 

(307) m-7781 

Mike Palko 

Dept. of Ecology 

Mail Stop PV-11 

Olympia, Washington 98504 

(206) 459-6289 

John Schmidt 

Water Resources Division 

Dept. of Natural Resources 

1201 Greenbrier Street 

Charleston, west virginia 25311 

(304) 348-2108 

Jim Rawson 

Wildlife Division 

Dept. of Natural Rcsourccs 

P.O. Box 67 

Elkins, West Virginia 26241 

(3W) 636-1767 

Scott Hausmann 

Bureau of Water Regulation and Zoning 

Dept. of Natural Resources 

P.O. Box 7921 

Madison, wisamsin 53701 

(608) 266-7360 

49 
APPENDIX B 

FEDERAL DEFINITIONS 

The federal definition of “waters of the United States” is (40 CFR Section 232.2(q)): 

(1) 

(2) 

(3) 

(4) 

(5) 

(6) 

(7) 

(* 

All waters which are currently used, were used in the past, or may be susceptible 

to use in interstate or foreign commerce, including all waters which are subject 

to the ebb and flow of the tide; 

All interstate waters including interstate wetlands; 

All other waters such as intrastate lakes, rivers, streams (including intermittent 

streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, 

playa lakes, or natural ponds, the use, degradation or destruction of which would 

or could affect interstate or foreign commerce including any such waters: 

(i) Which arc or could be used by interstate or foreign travelers for 

recreational or other purposes; or 

(ii) From which fish or shellfish could be taken and sold in interstate 

foreign commerce; 

or 

(iii) Which arc used or could be used for industrial purposes by industries in 

interstate commerce;* 

All impoundments of waters otherwise defined as waters of the United States 

under this definition; 

Tributaries of waters identified in paragraphs 1-4. 

The territorial sea; 

Wetlands adjacent to waters (other than waters that are themselves wetlands) 

identified in 16, waste treatment systems, including treatment ponds or lagoons 

designed to meet the requirements of CWA (other than cooling ponds as defined 

in 40 CFR § 423.11(m) which also meet criteria in this definition) arc not waters 

of the United States. 

Note: 

in (3) 

EPA has clarified that waters of the US. under the commerce connection 

above also include, for example, waters: 

Which are or would be used as habitat by birds protected by Migratory 

Bird Treaties or migratory birds which cross State lines; 

Which are or would be used as habitat for endangered species; 

Used to irrigate crops sold in interstate commerce.) 

The federal definition of "wetlands” (40 CFR § 232.2(r)). Those areas that are 

inundated or saturated by surface or ground water at a frequency and duration 

sufficient to support, and that under normal circumstances do support, a prevalence of 

vegetation typically adapted for life in saturated soil conditions. Wetlands generally 

include swamps, marshes, bogs, and similar areas. 

50 
APPENDIX C 

SCOPE OF PROJECT REVIEW: PENNSYLVANIA DAM PROPOSAL EXAMPLE 

The dam proposed by the City of Harrisburg was to be 3,000 feet long and 17 

feet high. The dam was to consist of 32 bottom hinged flap gates. The dam would 

have created an impoundment with a surface area of 3,800 acres, a total storage 

capacity of 35,000 acre feet, and a pool elevation of 306.5 feet. The backwater would 

have extended approximately eight miles upstream on the Susquehanna River and 

approximately three miles upstream on the Conodoguinet Creek. 

The project was to be a run-of-the-river facility, using the head difference 

created by the dam to create electricity. Maximum turbine flow would have been 

10,000 cfs (at a nethead of 125) and minimum flow would have been 2,000 cfs. Under 

normal conditions, all flows up to 40,000 cfs would have passed through the turbines. 

The public notice denying 401 certification for this project stated as follows: 

1. The construction and operation of the project will result in the significant loss of 

wetlands and related aquatic habitat and acreage. More specifically 

a. The destruction of the wetlands will have an adverse impact on the local 

river ecosystem because of the integral role wetlands play in maintaining 

that ecosystem. 

b. The destruction of the wetlands will cause the loss of beds of emergent 

aquatic vegetation that serve as habitat for juvenile fish. Loss of this 

habitat will adversely affect the relative abundance of juvenile and adult 

fish (especially smallmouth bass). 

c. The wetlands which will be lost are critical habitat for, among other 

species, the yellow crowned night heron, black crowned night heron, 

marsh wren and great egret. In addition, the yellow crowned night heron 

is a proposed State threatened species, and the marsh wren and peat 

egret arc candidate species of special concern. 

d. All affected wetlands areas are important and, to the extent that the loss 

of these wetlands can be mitigated, the applicant has failed to 

demonstrate that the mitigation proposed is adequate. To the extent that 

adequate mitigation is possible, mitigation must include replacement in the 

river system. 

51 
2. 

e. Proposed riprapping of the shoreline could further reduce wetland 

acreage. The applicant has failed to demonstrate that there will not be an 

adverse water quality and related habitat impact resulting from riprapping. 

f. Based upon information received by the Department, the applicant has 

underestimated the total wetland acreage affected. 

The applicant has failed to demonstrate that there will be no adverse water 

quality impacts from increased groundwater levels resulting from the project. 

The ground water model used by the applicant is not acceptable due to 

erroneous assumptions and the lack of a sensitivity analysis. The applicant has 

not provided sufficient information concerning the impact of increased 

groundwater levels on existing sites of subsurface contamination, adequacy of 

subsurface sewage system replacement areas and the impact of potential 

. increased surface flooding. Additionally, information was not provided to 

adequately assess the effect of raised groundwater on sewer system laterals, 

. effectiveness of sewer rehabilitation measures and potential for increased flows at 

the Harrisburg wastewater plant. 

3. The applicant has failed to demonstrate that there will not be a dissolved oxygen 

problem as a result of the impoundment. Present information indicates the 

existing river system in the area is sensitive to diurnal, dissolved oxygen 

fluctuation. Sufficient information was not provided to allow the Department to 

conclude that dissolved oxygen standards will be met in the pool area. 

Additionally, the applicant failed to adequately address the issue of anticipated 

dissolved oxygen levels below the dam. 

4. The proposed impoundment will create a backwater on the lower three miles of 

the Conodoguinet Creek. Water quality in the Creek is currently adversely 

affected by nutrient problems. The applicant has failed to demonstrate that 

there will not be water quality degradation as a result of the impoundment. 

5. The applicant has failed to demonstrate that there will not be an adverse water 

quality impact resulting from combined sewer overflows. 

6. The applicant has failed to demonstrate that there will not be an adverse water 

quality impact to the 150 acre area downstream of the proposed dam and 

upstream from the existing Dock Street dam. 

7. The applicant has failed to demonstrate that the construction and operation of 

the proposed dam will not have an adverse impact on the aquatic resources 

upstream from the proposed impoundment. For example, the suitability of the 

impoundment for smallmouth bass spawning relative to the frequency of turbid 

52 
conditions during spawning was not adequately addressed and construction of the 

dam and impoundment will result in a decrease in the diversity and density of 

the macroinvertebrate community in the impoundment area. 

8. Construction of the dam will have an adverse impact on upstream and 

downstream migration of migratory fish (especially shad). Even with the 

construction of fish passageways for upstream and downstream migration, 

significant declines in the numbers of fish successfully negotiating the obstruction 

are anticipated. 

9. The applicant has failed to demonstrate that there will not be an adverse water 

quality impact related to sedimentation within the pool area. 

53 
APPENDIX D 

EXAMPLES OF CERTIFICATION CONDITIONS 

**MARYLAND** 

Maryland certified with conditions the fill/alteration of 6.66 acres of non-tidal 

wetlands as part of the construction of an 18 hole golf course and a residential 

subdivision. Approximately three-fourths of the entire site of 200 acres had been 

cleared for cattle grazing and agricultural activities in the past. As a result, a stream on 

the cast side of the property with no buffer had been severely degraded. An 

unbuffered tractor crossing had also degraded the stream. A palustrine forested 

wetland area on the southeast side of the property received stormwater runoff from a 

highway bordering the property and served as a flood storage and ground water 

recharge area. Filling this area for construction of a fairway would eliminate some 4.5 

acres of wetlands. Additionally, other smaller wetland areas on the property, principally 

around an old farm pond that was to be fashioned into four separate ponds for water 

traps, were proposed to be altered or lost as a result of the development. 

The Corps did not exercise its discretionary authority to require an individual 

permit and thus the project was permitted under a nationwide permit (26). The State 

decided to grant certification, conditioned on a number of things that it believed would 

improve the water quality of the stream in the long run. 

The filled wetland areas had to be replaced on an acre-for-acre basis on the 

property and in particular, the 45 acre forested palustrine wetland had to be replaced 

onsite with a wetland area serving the same functions regarding stormwater runoff from 

the highway. 

Some of the other conditions placed on the certification were as follows: 

1. The applicant must obtain and certify compliance with a grading and 

sediment control plan approved by the [name of county) Soil Conservation 

District; 

2. Stormwater runoff from impervious surfaces shall be controlled to prevent 

the washing of debris into the waterway. Stormwater drainage facilities 

shall be designed, implemented, operated and maintained in accordance 

with the requirements of the [applicable county authority]; 

54 
3. The applicant shall ensure that fish species are stocked in the ponds upon 

completion of the construction phase in accordance with the requirements 

of the (fisheries division of the natural resources department of the State]; 

4. The applicant shall ensure that all mitigation areas are inspected annually 

by a wetlands scientist to ensure that all wetlands are functioning 

properly; 

5. A vegetated buffer shall be established around the existing stream and 

proposed ponds; 

6. Biological control methods for weed, insects and other undesirable species 

are to be employed whenever possible on the greens, tees, and fairways 

located within or in close proximity to the wetland or waterways; 

7. Fertilizers are to be used on greens, tees, and fairways only. From the 

second year of operation, all applications of fertilizers at the golf course 

shall be in the lower range dosage rates [specified]. The use of slow 

release compounds such as sulfur coated urea is required. There shall be 

no application of fertilizer within two weeks of verticutting, wring or 

spiking operations. 

55 
l * WESI’ VIRGINIA l . 

THE FOLLOWING GENERAL CONDITIONS APPLY TO ALL NATIONWIDE 

PERMITS IN WEST VIRGINIA: 

1. 

2 

3. 

4. 

5. 

d 

7. 

8. 

Permittee will investigate for water supply intakes or other activities immediately 

downstream which may be affected by suspended solids and turbidity increases 

caused by work in the watercourse. He will give notice to operators of any such 

water supply intakes before beginning work in the waterwurse in sufficient time 

to allow preparation for any change in water quality. 

When no feasible alternative is available, excavation, dredging or filling in the 

waterwurse will be done to the minimum extent practicable. 

Spoil materials from the watercourse or onshore operations, including sludge 

deposits, will not be dumped into the water wursc or deposited in wetlands. 

Permittee will employ measures to prevent or control spills from fuels, lubricants, 

or any other materials used in construction from entering the watercourse. 

upon WmpktiOn of earthwork operations, all filL in the watercourse or onshore 

and other areas disturbed during wnstruction, will be seeded, riprapped, or given 

some other type of protection from subsequent soil erosion. If riprap is utilized, 

it is to be of such weight and size that bank stress or slump conditions will not 

be created due to its placement. Fill is to be clean and of such composition that 

it will not adversely effect the biological, chemical or physical properties of the 

rcccivitlg waters. 

Runoff from any storage areas or spills will not be allowed to enter storm sewers 

without acceptable removal of solids, oils and toxic compounds. All spills will 

promptly be reported to the appropriate Department of Natural Resources 

OffiCe. 

Rest Management Practices for sediment and erosion control as described in the 

208 Construction Water Quality Management Plan are to be implemented. 

Green wncrete will not be permitted to enter the watercourse unless contained 

by tightly sealed forms or cells. Concrete handling equipment will not discharge 

waste washwater into the watercourse or wetlands without adequate wastewater 

treatment. 

56 
9. No i~trcam work is permissible during the fish spawning season April through 

JUE. 

10. Removal of mature riparian vegetation not directly associated with project 

wnsmxtion is prohiiited. 

11. Instream equipment operation is to be minimitrd and should be accomplished 

during low flow periods. 

12 Nationwide permits arc not applicable for activities on Wild and Scenic Rivers or 

study streams, streams on the Natural Stream Preservation List or the New 

River Gorge National River. These streams include New River (confluence with 

Gauky to mouth of Grccnbrier); Grccnbrier River (mouth to Knapps Creek), 

Birch River (mouth to Cora Brown Barge in Nicholas County), Anthony Creek, 

Cranbmy Run, Bluestone River, Gauky River, and Meadow River. 

13. Eachpcn&tccshallfolkJwthcnotia 

DepartmentofNatumlRmourcu 

reql+mnts~tainedinSectjon9oftbc 

. -for- 

. ef chapter 2&l, series XIX 

WW 

14. Eachpcrmittee~ifhedounot~ or is not aware of applicable 

NathwidcPcmitco&itions,amactthcCoqsofEngincmpriorto 

conducthganyacthityautborhdbyamhwidepcrmitinordcrtobcadviscd 

of applicable amditions. 

57 
EXAMPLES OF CERTIFICATION CONDITIONS REQUIRED FOR 

NATIONWIDE PERMIT 26 FROM ALASKA 

(26) Discharges of dredged or fill material into the waters listed in subparagraph 

(i) and (ii) of this paragraph which do not cause the loss or substantial adverse 

modification of 10 acres or more of waters of the United States, including wetlands. 

For discharges which cause the loss or substantial adverse modifkation of 1 to 10 acres 

of such waters, including wetlands, notification of the District Engineer is required in 

accordance with 330.7 of this part (see Section 2 of this Public Notice). 

(i) Non-tidal rivers, sueams, and their lakes and impoundments, including 

adjacent wetlands, that are located above the headwaters. 

(ii) Other non-tidal waters of the United States, including adjacent wetlands, that 

arc not part of the surface m%utary system to intcrstatc waters or navigable waters of 

the united states (ic, isolated waters). 

REGIONAL CONDITION Hz Work in a cksignated anadromous fish stream is subject 

to authorimtion from the Alaska Department of Fii and Game. (No change from 

REGIONAL CONDITION H previously published in SPN 84-7.) 

REGIONAL CONDITION J: 

a If, during review of the prcdkharge notikation, the Corps of Engineers or the 

designated State of Alaska reviewing aflidab determine that the m activity 

wouldoccurinanyofthefollawingarear,theapp~~twinbeadvisedthatan 

individual404permitwillbcrqukd. Whcreuncertaintycxists,theCorpswillsend 

prc-dischargc notification to the designated State officials for a determination. 

1. National Wildlife Refuges 

2 National Parks and m 

3. National Conservation Areas 

4. National Wild and Scenic Rivers 

5. National Experimental Areas 

6. State Critical Habitat AReas 

7. state sanctuaries 

8 State Ranges and Refuges 

9. state Eagle Prcsenes 

10. State Ecological Reserves and Experimental Areas 

11. State Recreation Areas 

58 
12 Wetlands contiguous with designated anadromous fish 

StEMIS 

13. Headwaters and isolated wetlands in designated public 

water supply watersheds of Craig, Hoonah, Hydaburg, 

Anchorage, Cordova, Seldovia and Kodiak 

14. Sitka Area: Wetlands in the Swan Lake Area Meriting 

Special Attention (AMSA) in the district Coastal 

Management Plan 

15. Anchorage area: Designated Preservation and 

Conservation Wetlands in the Wetlands Management Plan 

16 Bethel area: Designated Significant Wetlands in the 

district Coastal Management Plan not covered under 

General Permit 83-4 

17. Hydaburg area: The six AMSA’s of the district Coastal 

Management Plan 

lg. Bering strait area: Ah designated conservation AMSA’s 

of the district Coastal Management Plan 

19. Juneau area: Designated Sensitive Wetlands of the 

district Coastal Management Plan 

20. NANA: Designated Special Use Areas and Restricted/ 

Sensitive areas in the dist& Coastal Management 

21. TananaBasinAreaPIan: typeA-lwctlandsinthe 

Alaska Rivers coopemtivc StatdFcdtral study 

22 Susitna Area Plan: type A-l wetlands in the Alaska 

Rivers Coopcrativc State/Federal Study 

23. High value headwaters and isolated wetlands identi&d 

once the ongoing Wetlands Management Plans or Guides 

Iisud in b-5 (below) are completed 

24. Alaska Natural Gas Pipclinc Corridor designated type A 

andBW&UIdr 

25. Headwaters and isolated waters which include idcntifxd 

bald eagle, peregrine falcon, and trumpeter swan nesting 

26. ADFBG identified waterfowl use arcas of statewide 

signifjcancc 

27. Designated caribou calving areas. 

Any individual permit issued in locations covered by district coastal management plans, 

State or Federal regional wetlands plans or local wetlands plans (numbers 14 through 

23 above) will be consistent with the plan provisions for the specific wetland type and 

may require adding stipulations. 

59 
Oil and gas activities in the North Slope Borough which involve the discharge of 

dredged or fill material into waters including wetlands are not covered by the previous 

nationwide permit under 33 CFR 330.4(a) and (b) and are not covered under the 

nationwide permit 26. These activities require individual 404 permits or other general 

permits. These activities were previously excluded by the Corps of Engineers Special 

Public Notice 84-3 dated March 9, 1984. 

b. Pre-discharge notification received by the Corps of Engineers for the discharge of 

dredged or fill material in the following areas will be provided to designated State 

agencies which include (1) the appropriate ADEC Regional Environmental Supervisor, 

(2) the appropriate ADF&G Regional Habitat Supervisor, (3) the appropriate DGC 

regional wntact point, and (4) the appropriate DNR regional contact (should DNR 

indicate interest in receiving notices). 

1. Headwater mbutaries of designated anadromous fish 

streams and their adjacent contiguous wetlands 

2 Open water areas of isolated wetlands greater than 10 

acres and lakes greater than 10 acres above the 

headwaters 

3. North Slope Borough wet and moist tundra areas not 

already covered by APP process 

4. Wet and moist tundra areas outside the North Slope 

BOrOUgh 

5. High value headwaters and isolated wetlands identified 

in the following ongoing State or Federal wetland 

management guides or plans: Mat-& Kenai Borough, 

Valdg North Star Borough Yukon Delta and Copper 

River Basin 

6. Headwater or isolated wetlands within local CZM district 

boundaries or the identified coastal zone boundary, 

whichever is geographically smaller (not withstanding 

the requirements under “a.” 14.20 (above)) 

7. Anchorage Area: designated Special Study areas in the 

Wetlands Management Plan 

g Tanana Basin Area Plan: areas designated A-2, B-l, B-2 

in the Alaska River Cooperative State/Federal Study 

9. Susitna Area Plan: areas designated A-2, A-3, A-4 in 

the Alaska River Cooperative State/Federal Study 

The designated officials of the State of Alaska, and the Corps will evaluate the 

notifications received for the areas listed “b.” above under the provisions set forth in 33 

CFR 330.7 (see Section 2 of this Public Notice) which includes an evaluation of the 

60 
environmental effects using the guidelines set forth in Section 404(b)(l) of the Glean 

Water Act. Notices shall be screened against the nationwide conditions under 330.5(b) 

(See Section 4 of the Public Notice) using available resource information. Conditions 

330.5(b)(l), (2). (3)1 (4). (61, and (7) and (9) will be focused on during the State 

review. 

The State’s review of these areas under “b.” above will encompass the following: 

1. After receiving predischarge notification from the corps, the State of Alaska 

shall wmment verbally, and/or if time permits, in writing to the Corps District Engineer 

through a single State agency wnceming the need for an individual permit review. 

2 Existing fish and wildlife atlases and field knowledge shall be used to evaluate 

notices. If signifkant resource values are not identified for the area in question or if 

insufficient resource information exists, State agencies will not request an individual 

pcnnit unless: 

(a) An on-site field evaluation will be w&rctcd, weather 

pcrmhti~~g, during the extended review provided under the individual permit, or, 

(b) Federal resource agencies plan a similar field evaluation that wuld provide 

identical information to State resource agencicr. 

Should either the State review or the Corps review determine that the nationwide 

permit is not applicable, an individual 404 permit will be required. 

Newcatego~~maybeaddedatalaterdaterbouldeitbertbeCorprortheSmteof 

Alaska recognk a need. These changes will be made available for public review 

through a public notice and comment period at the appropriate time. 

This REGIONAL CONDITION shall be e&ctive for the period of timothat 

nationwide permit 26 is in effect unless the REGIONAL CONDITION is sooner 

revoked by the Department of the Army with prior coordination with the State of 

Alaska. 

61 
APPENDIX E 

Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 /Rules and Regulations 85355 

Subpart H - Actions to Minimize 

Adverse Effects 

Note.- There are many actions which can 

be undertaken in response to § 203.10(d) to 

minimize the adverse effects of discharges of 

dredged or fill material. Some of these, 

grouped by type of activity, are listed in this 

subpart. 

§ 230.70 Actions concerning the location 

of the discharge. 

The effects of the discharge can be 

minimized by the choice of the disposal 

site. Some of the ways to accomplish 

this are by: 

(a) Locating and confining the 

discharge to minimize smothering of 

organisms: 

(b) Designing the discharge to avoid a 

disruption of periodic water inundation 

patterns: 

(c) Selecting a disposal site that has 

been used previously for dredged 

material discharge: 

(d) Selecting a disposal site at which 

the substrate is composed of material 

similar to that being discharged, such as 

discharging sand on sand or mud on 

mud: 

62 

64