# APPENDIX Q

Wetlands and 401 Certification: Opportunities and Guidelines for States and Eligible Indian Tribes



# WATER QUALITY STANDARDS HANDBOOK

SECONDEDITIONOffice ofWater (A-104F) 

# EPA United States Environmental Protection Agency April 1989 

# Wetlands And 401 Certification 

# Opportunities And Guidelines For States And Eligible Indian TribesUNITED STATES ENVIRONMENTAL PROTECTION AGENCY WASHINGTON, D.C. 20460

OFFICE OF WATER

NOTE TOTHE 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 Theoffice 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 isa 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.

i10. 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 

### W8thBIhd8that 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 Stateswho gave USinformation 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) 3824043TABLE 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 beSpecifically 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

........................ 22B. 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

.............. 39APPENDICES

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

4I. INTRODUCTION

This handbook has been developed by EPA’s Office of Wetlands Protection (OWP) to highlight the potential of the State water quality certification processfor 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 asa readily available tool to begin their programs. One of OWP’s key mandates is to broaden EPA’s wetlands protection efforts in areaswhich 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 aggressiveuseof their certification authorities under Section 401 of the CWA, to protect their wetlands from chemical and other types of alterations."3
Inlight ofthese directives, wehave examined the role of the Section 401 State water quality certification processand are working with Statesto improve its application towetlands. This process offers theopportunity tofulfill many goals forwetland protection because:

• Itisacooperative federal/State program anditincreases theroleof States indecisions regarding theprotection ofnatural resources;

• Itgives States extremely broad authority toreview proposed activities in and/or affecting State waters (including wetlands) and, in effect, to deny or place conditions on federal permits or licensesthat authorize such activities;

• Itisanexisting program which canbevastly improved toprotect wetlands without major legislative initiatives;

• Its proper implementation for wetlands should integrate many State programs related to wetlands, water quality, andaquatic resource preservation and enhancement, toensure consistency of activities with these State requirements. Examples of such programs include coastal zone management, floodplain management, and nonpoint source programs.

5The 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, theintegrity ofwaters oftheUS. cannot beprotected byanexclusive focus on wastewater effluents inopen waters. While thefederal Section 404 program addresses many discharges intowetlands, andother federal agencies have environmental review programs which benefit wetlands, these donotsubstitute foraState's responsibilities under Section 401. AState's authority under Section 401 includes consideration ofa broad range ofchemical, physical, and biological impacts. The State's responsibility includes acting upon therecognition thatwetlands arecritical components ofhealthy, functioning aquatic systems.

Tohelp States implement theguidance provided inthishandbook andtofoster communication on401 issues, youwillfindalistofState 401 certification contacts and federal EPA contacts inAppendix A.Inorder tokeep thisandother wetland contact listscurrent, EPA hasasked theCouncil ofState Governments toestablish a computerized database ofState wetland programs and contacts (See Appendix Afor details.) EPA isalso refining alistofTribal contacts tofoster communication with interested Tribes.

6

### SUMMARY OFACIIONS 

### NEEDED

The following is a summary of the activities neededto 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 arejust beginning to developwetlands pwms, should consider these actions (along with developing water qunlity standards) as first stepsto becoming more involved in wetlands regulatory florts. The actions below am discussedthroughout the handbook

l All etatesshould begin bg including wetlands in their de&&ions of smte w8terr

l States should developor modify their existing 401 certification and water qaaIity standard regalitions and guidelines to l ccomodrte spedal weUandamsideraUonr

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 theirwl!thndl States should designate usesfor thesewetlands basedon wetland fbnctkm usdated with emh wetland type Such tstimatcd uses could beverifW when neededfor individual 

## l ppliations with an assessmenttool 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 resourcewaters 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 processcan integrate wetland resource information with dilferent water management p-s afWting wetlands (including autstal zone management, nonpoint source and wastewater proprrrms).

7II. 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 basethose standards on the waters’ useand 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 usesand 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 401certification 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 becausethe 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 necessaryto assurecompliance 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 exceedone 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 havewater 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 discussesspecific approaches, and elements of water quality standards and 401 certification regulations that OWP views aseffective 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 Stateswithout 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 Statesto develop a program that fully includes wetlands in their water quality certification process. But even in Stateswhich have their own wetlands regulatory programs, the water quality certification processcan 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 coversall interstate wetlands, wetlands adjacent to other regulated waters; and all other wetlands, the use,degradation ordestruction of which could affect interstate or foreign commerce.7 This definition is extremely broad and one would be hard pressedto find a wetland for which it could be shown that its useor destruction clearly would not affect interstate commerce. Federal jurisdiction extends beyond that of Stateswhich regulate only coastal and/or shoreline wetlands, for instance. And in Statesthat regulate inland wetlands, often size limitations prevent Statesfrom regulating wetlands that are subject to federal jurisdiction.8
Even if Statejurisdiction is asencompassingor more so than federal jurisdiction, however, water quality certification may still be a valuable and essentialwetlands protection device. In the State of Massachusetts,for instance, a 401 certification isnot simply “rubber stamped” on the permitting decisions made pursuant to the MassachusettsWetlands 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 sothattheprovisions of each program augment the other

. toprovide more comprehensive protection. This approach not only strengthens protection, itreduces 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 beSpecifically Designated asSurface Waters ofthe States

In order to bring wetlands fully into the State water quality certification process, afirststep istoinclude theterm "wetlands” in the State water quality standards' definition ofsurface waters. EPA willbeworking withallStates through thetriennial review process ofState standards toensure thattheirdefinitions arcatleast 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, itpredisposes decision makers (from 401 certification program managers, to the head of the agency or a water quality board, all the way to the judges
10on 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 isnot to say that a wetland project’s effects on adjacent or downstream waters arc notalso part of the water quality certification analysis. Rather, it is to say that wetlands, either adjacent toor 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 inthose 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, andthelike). Onlythree 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 usetheterm "marshes" inalistofdifferent types ofwaters toillustrate "waters of the State" in their enabling legislation. Kentucky, for example, defines waters of the State as:

..anyandallrivers, streams, creeks, lakes, ponds, impounding reservoirs, springs, wells, marshes, andallother bodies ofsurface orunderground water, natural orartificial, situated wholly orpartly within ofbordering upon the Commonwealth orwithin jurisdiction.10
When used in this way, the term is typically understood to be generic innature rather than being descriptive ofatypeofwetland, and cantherefore be considered as the equivalent of the term “wetlands”. In these States, however, in order toensure 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,
11ah waters that exist in the State. They may not spccifkally designate any particular

type of water body, as,for instance, Tennessee’sWater 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 anyportion 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”, asdoes Massachusetts:



### In theseStates,asin the Stateswith “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 addressactivities 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 usesthat 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.

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

standards which have three basic components: usedesignations, criteria to protect those uses,and an antidegradation policy.
EPA directs that, where attainable, designated usesmust include, at a minimum, usesnecessaryto 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 asthe “fishable/swimmable” 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 anaIysisbased on at least one of six factors.” In no event, however, may a beneficial fist& use (any usewhich 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 asthe “kc hns”) which saythat a.llwaters shall be free from substancesthat: settle to form objectionable deposits; float asdebris, scum, oil or other matter to form nuisances;produce objectionable color, odor, taste, or turbidity; injure, or arc toxic,or produce adversephysiological responsesin humans, w or plants; or produce undesirable or nuisance aquatic life. States have also usedother narrative criteria to protect wetland quality. The useof criteria to protect wetlands is

. dlscusd in the foIlowing scctioxL
In addition, EPA ah requires that all Statesadopt an antidegradation policy. Seeral States have usedtheir 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 usesand the level of water qaality necessaryto protect existing usesin all scgBleutsof 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 isjustifkd by overriding economic or social needsdetermined 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 beendesignated as outstanding resource waters (ORWs) no degradation (except temporrrry) of water quality is allowed.
13In the caseof wetland fi&, however, EPA allows a siightiy different interpretation of the antidegradation policy.I* Because on the federal level, the Congress has anticipated the issuanceof at least some permits by virtue of Section 404, it is EPA’s policy that, except in the caseof ORWs, the “existing use” requirements of the antidegradation policy art met if the wetland fill does not causeor 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 Statesto 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 asthey 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

14for 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 usesof water contact recreation, fish, other aquatic life, wildlife, and water s~pply.~ In its denial, Maryland stated:

Becausewetlands vary tremendously in background levels of certain parameters measured by the traditional numcrical/chcmical criteria applied to surfacewaten, some states hwc relied on “Il8tur8l w8ur qualiv critcri8 to protect wetlands in the 401 certification process Minnesota, for instance, hastaken this approach in denying certification for a flood control project becauseof tbc State’s primary concern

. . . thattheprojectwould~e3,chanrreLittkDiannLakefromanacidboetoafruhcirmmneutxal water chemistry type of wetland.” The agencywas concerned that “introduction of lake water into the closed acid systemof 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 classof 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 existsfor preserving the quality found in the State of nature.” According to the denial letter, becauseof 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 hasbeen upheld in court. bm V.Tewc Ww Ouality Bti was brought by a 401 

### artifkation
15applicant 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 variousstandardsfor the watersin each classification. Among other things, thesestandardspertain to dirtolved oqgen, pH, tempemture, toxic substances, and other pollrrrantr l7u Permit Hearing Panelfound the petitioner’s activity will violate the “otherpol&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 becausetourists visit R&foot to view its natural beauty and the lacustrinc wetIan& function as a 

### spawningground 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 asWaters of the Commonwealth” and becauseplacing 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 addresseshydrological changesis 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 speciescomposition 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
16demonstrated 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 Sections301, 302, 303, 306 or 307 of the CWA; additionally, the agencymay 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 watercpaliy.‘~
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 saythat “[p)rcsent ambient water quality and usesshall be maintained and protected without 

### CxaptioL.” n The proposed standards also require that point source dischargesto State rcsourct waters be regulated accxMng to Ohio’s biological criteria for aquatic life. However, Ohio has not yet dcvcloped biological indices specif5callyfor wetlands. Thus, for projects affecting wctlan&, it basesits ccrti6cation decisionson 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 asfollows: (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 issueda proposed denial of an application to iill a three acre wetland area adjacent to Lake Erie for a

17recreational 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 habitatsfor 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 hasoccurred 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.

18Ohio has issuedfor comment, proposed revisedwater quality standards that

include a newly created “outstanding State resource waters” category. Ohio intends to prohibit all point source dischargesto 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 asORWs is such an appropriate classification for many wetland systems,it would behoove the States to adopt regulations which maximize the ability of State agenciesand citizens to have wetlands and other waters placed in this category. The State of Kentucky hasset out procedures for the designation of thesewaters in its water quality standards. Certain categories of waters automatically included asORWs 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 areasand 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 standardsthat could be called an “emergenc)r provision for the designation of out5tanding resourcewaters. Noxmally it is necessaryunder Minnesota’s water quality standards for the agencyto provide an opportunity for a hearing before identifvinn and establishing outstanding resource waters and before prohiiiting or .rcstricting any dischargesto those waters. The “emcrgcnc)r provision allows the agencyto prohiiit new or expand4 dischargesfor unlisted waters 5otheatent.. .nacctrmywpcsavvtheaistinghigtrqucriity,orwprespctcrwthe wildcmm,s~~oroJhcrspscial~mctcriaicrthatmakcthc~trtan

. otmandmg rr.soum value water.- This provision allows the agencyto protect the waterbody while completing the listing processwhich could take severalyears. 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 dischargesshall be eliminated unltss the dkchnrger ir able to drmonrarru that.-(a) Akmatiu meansof dirposal allc not masonably avaikzbleor

## feasible;

and(b) Thedirchorgr will not afi- the quo& of the water asa national n30utce”

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

water quality of ORWs. Another provision which Minnesota usesto control discharges to waters that flow into ORWs for their effect on ORWs is that:
The agencyshall require new or expandeddischargesthat flow into outstanding resourcevalue waters[to] be controlled so asto assureno deterioration in the quality of the downstream outstanding resource value water.34

V. USING 401 CERTIFICATION
A. The Permits/Licenses Covered andtheScope ofReview
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"anydischarge" requires water quality 

### certification. When theCongress firstenacted thewater quality certification provision in1970, itspoke ofthe"wide variety oflicenses andpermits.

..issued byvarious Federal agencies," which "involve activities oroperations potentially affecting water quality."35 

### Thepurpose ofthewater quality certification requirement, theCongress said,wasto
ensure that nolicense orpermit would beissued "foranactivity thatthrough inadequate planning orotherwise could infactbecome asource ofpollution."36

1.Federal Permits/Licenses Subject toCertification 

### Thefirstconsideration iswhichfederal permits orlicenses aresubject to401 certification. OWP hasidentified fivefederal permits and/or licenses which authorize activities which may result inadischarge tothewaters. These are:permits forpoint source discharges under Section 402anddischarges ofdredged andfillmaterial under Section 404oftheClean Water Act;permits foractivities innavigable waters which mayaffect navigation under Section 9and 10oftheRivers and Harbors Act(RHA); and licenses required forhydroelectric projects issued under theFederal 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.

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

there remains some confusion under Sections 9 and 10of RHA concerning which projects may involve or result in a discharge, and thus require State certification. In many casesthere 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 caseof pilings, which the Corps sometimes considers subject to Section 10only, 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 10of 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 licensesthat 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 401oftheClean Water Actrequires thatany applicant forafederal license orpermit toconduct anactivity which will or may discharge intowaters oftheUnited States (asdefined intheClean Water Act)must present thefederal authority with acertification from the appropriate state agency. federal permits andlicenses issued bythefederal government requiring certification include permits issued bytheUnited States Army Corps ofEngineers under Section 404oftheClean Water Act,33 U.S.C. 1344 andlicenses issued bytheFederal Energy Regulatory Commission under theFederal Power Act, 16U.S.C. 1791 etseq.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, becausethe regulation Statesthat such permits or licensesinclude Section
21404 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. Scopeof Revicrr Under Swtion 401
An additional issue is the scope of the States’ review under Section 401. Congress intended for the States to usethe 

### water quality certification processto ensure that no federal license or permits would be issuedthat would violate State standards or become a source of pollution in the future. A& becausethe States’ certification of a wns~ permit or lknse also operates ascertification 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 changesin 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
22ccrtifkation 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 Congresshasgiven the Statesthe authority to place any conditions on a water quality certification that are necessaryto assurethat 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 Congressmeant for the Statesto impose whatever conditions on the certification arc ntcess81yto 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 astheir purpose preventing water quality deterioration. By way of example, the State of Maryland issueda ccrtikation with conditions for placement of fill to wnstruct a 350footearthen dam located 200feet downstream of an existing dam. Maryland usedsome 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 bewntrvlled w ptvlarr the washing of debris into the watenq. ne Mtld vegetationshall be maintained and momi when disturbed or eded Stonnwater dminage facilities shall be designed,implemented, opemted, and maintained in accordancewith the rqhwunn of the appliuble approvingauthority.

2377~ a&icant is mquitui to pmvidc a mixing tower releasesmcnue to achieve instream wmpliance with Cl&s III trrouttemperuhuc (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 reviewedand 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 maintenanceof water quality or the designateduseof thewaters insomew8y. someofthewr&ionsareckarlyrequiremcntsofstauorlocallaw related to water quality other than thosepromulgatedpum.aant to the CWA sections cnumeraud in Section401(a)(l). Other wnditbns weredesignedto minimiz the project’sadvcntcffecaonwaterqualityovtrtbelifcofthcprojcct. In addition, Appendix D containsa list of conditionswhich 

### WestVirginia and Alaska placedon the ccrtiftcation of someSection404nationwidepermiff Many of thewertv~conditionraretypicalofonerit~onindividualproposalrarwell. For any particular proj&, WestVirginia will include morespccifk conditionsdesigned to addressthe potential adverseeffectsof the project in addition to thoseenumerated in Appendix D. The conditionsfrom Alaskaarc usedon a nationwidepermit (#26) regarding isolatedwatersandwaurt aboveheadwaters.Theseconditionsare dkusscd in SectionV. c(1).

242. 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 asa 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 lessadverseenvironmental impacts are presumed to be available unlessthe 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 valueswhich are lost. Finally, compensating with the same type of wetland lost is preferred to using another wetland type. The States may chooseto adopt mitigation policies which require additional replacement to help account for the uncertainty in the scienceof wetland creation and restoration. What is important brn EPA’s perspective is that mitigation not be used as a trade-off for w lossesof wetlands, and that mitigation compensate, to the fullest extent posstble,for the functional values provided to the local ecosystemby 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
25preservation. 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 issuethat has arisen in two wurt casesis 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’sdenial of certi5cation because it was based on the applicant’s failure to certify compliance with a wunty’s comprehensive plan and land useordinances. The wurt held that such “other appropriate rquirement(r) of Smu law?could not be the basisfor w certi5cation. However, the court held that the agencyshould 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 basisfor w placed on a cettification.
Another State court, however, this one in West Virginia, has upheld the State’s denial of certification on the basisof 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 asto 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 hasgiven the States great latitude to adopt water quality standards that take into consideration the waters’ usefor
26suchthings as“the propagation of fish and wildlife, recreational purposes, and

. . . other

purposcs.‘w Because of the broad authority granted by the Congressto 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 baseson 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 changesdo 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 base5ow necessaryto 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 becausethe requirement would be an explicit consideration of 4-01certification.



### C Special Considemtions for Reviewof Sectkm 404 

### Permits: Nationtide and A&r-the-FactPtnnits
L NationWkPumits.
Pursuant to Section 404(e) of the CW& the Corps may issuegeneral permits, after providing notice and an opportunity for a hearing, on a State, regional or nationwide basis for any category of activities involving dischargesof dredged or fill material, 

### wheresuchactivitiesarc similar in nature and will causeonly minimal adverse environmental effects both individually and cumulatively. Th= permits may remain in effect for 5 years, after which they 

### mustbe reissued with noticeand an opportunity for 

### a hearing. If the activitiesauthorizedbygeneralpermitsmayresult in a discharge, the permits arc subject to the Smu water quality certification requirement when they are 5nt proposed and when proposed for rcissuance. 

### Statesmayeither grant certification with appropriate conditions or 

### denycertification of thesepermits.
Under the Corps’ regulations, if a State hasdenied 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.

27Some 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 

### Smuof 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 rcguAationsin 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 agencywill then decide whether to “uphold, modify or withdraw certifkation for the individual activity.”
West Vii program of&en have descrii the reasonsfor 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
28the 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 suspectedhigh 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. (SeeAppendix 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 dischargesexcept under certain circumstances. Several States have expressedconcern with after-the-fact permits, including the belief that once the dischargeshave taken place, the water quality certification process is moot. Becauseof that believemany States report that they waive certification for after-the-fact permits. Such an approach frustrates law enforcement efforts generally and the water quality certification processin particular because it encourages illegal activity.
The evaluation of after-the-fact permit applications should be no different than for normal applications. Becausethe 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 becausethe work hasalready been partially performed or completed. Arkansas denied after-the-fact water quality certification of a wetland fill as follows: [acertain slough] iscurrently classified asawarmwater fishery.... Draining andcleaning of[itsassociated] wetlands will significantly alter the existing usebydrastically reducing oreliminating the fishery habitat and spawning areas. This physical alteration ofthelake will prevent isfrom being "water which is suitable forthepropagation ofindigenous warmwater species offish" which is the definition of a warmwaterfishery. Thus,the

. . . project [violates] Section 3 (A) of theArkansas Water Quality Standards,“Existing instream waterusesand the level of water quality necessary to protect the
29existingusesshall bemaintained and protected." The Department

recommends the area berestored to as near original contours aspossible.
With after-the-fact permits, just aswith 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 andsubstantive provisions which maximize the State agency’scontrol over the process and which make its decisions defensible in court, The very fact of having 401 certification regulations goesa long way in providing the state agencythat implements 401 certification with credibility in thecourts. 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 aswell. 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 addressessome 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’stimeframe for review, and the requirements placed on the applicant in the certification process. 30A. 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 agencymay have regulations of its own which provide a time limit for the State’s certification decision. For instance, Corps regulations saythat a waiver "will be deemed to occur if the certifying agencyfails or refusesto act on a request for certification within sixty daysafter receipt

. . . unlessthe district engineer determines a shorter or longer period is reasonable

. . . ."47 FERC rules state that a certifying agency“is deemed to havewaived 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 unlessthe Regional Administrator finds that unusual circumstances require a longer time.49 States should coordinate closelywith the appropriate federal agencyon 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 Statesto adopt rules which reasonably protect against an unintended waiver due, for example, to insufficient information to make a certification decision or becauseproject plans have changedenough 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 acomplete 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 assessmentinformation provided to the licensing or permitting agency,and the like. The ruler State that the agencywill review the application for completenesswithin 30 days of its receipt and notify the applicant of any additional materials reasonably necessaryfor review. Although the application will be deemed “complete” for purposes of review time if the agencydoes not request additional materials within 40 daysof receipt of the application, the agency reservesthe right to request additional information during the review process.50

31In the caseof 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 ptvcessp&r to FERC’s Jnai decikh the applicant shail inform the Depamunt of such changes.77~ De~mnent may reviewsuch akmtins or mudijkations and, if the changesare deemedsignificant by the Director, the Depnnmt may rquim a new appiicatkm fat cmjfication l7ie Depanment will have ninety (RI) daysto miew such changesor until the end of theyear mhvphd..., WhkJuveris longer,to ti&mine whetherto 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



### & RequiremenUfor theApplAcant
It is very important, in particular for conserving the 

### agency’s resources and ensuringthat there isslBicknt infoImation to deuxmine that water quality standards and other provisionsof 

### tbe CWA will not beviohed 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 caseof all applicationsfor c&i6cation.” WestVirginia requ&~ applicantsfor 

### FERC licenses to be rqxmsiiik for this notice. In the caseof Section 104permitr,W~tVirginiaharapintbotict~withthcCo~toissuepublic noticesfor 404applicationswhichalsonotify 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 sourcesof 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.

32Ohio, for instance, haswritten 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 unlesshe determinesthat the avolicant hasdemonstratedthat the discharge
of dmdgedorjill material to watts of the stateor the creation of any obsmuxion or altemtion in watersof the statewill? (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 sectionsof the Fedeml WbrcrPolktion Control Act 

### [301,302,303, 306and 

### 3071. (B) Notwithstanding an appkant’s demo-n of the cnktia in pamgmph (A)... the dirrctor may dtny an ap~tion for a Section401 water quality

adverselong or short term impact on water q~8lity.~s

C 

### Permit Fees
A ycry significant concern for all Stateswho 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 feesfor 401 certification applications unlessa 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’sgeneral 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, feesgo 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 sourcewhich States should explore.



### D. Basisfor 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 basesfor 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 

### 33of 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 cmany 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 chooseto 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 licensesand 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.

34VII. 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 assistthe certification process. Wetland ecosystems not only perform a wide variety of functions but do so in varying degrees. Public agenciesand private applicants currently employ a number of assessmentmethods such asthe Wetlands Evaluation Technique and the Habitat Evaluation Procedure to determine what functions or usesexist in a particular wetland system.56 In many States, however, water quality certification reviewers lack the resourcesto perform even a simple assessmentof a wetland’s boundaries, values and functions. Information about the location and types of wetland systems,and of the functions they may perform (such asflood storage, habitat, pollution attenuation, nutrient uptake, and sediment fixing) would aid standard writers in developing appropriate usesand 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 classifywetlands have not been closely tied to the 401 certification processin the past, these existing data can be valuable sourcesof 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 ajoint 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 haveworked 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 suchasthe natural heritage program could give 401 certification managerssome of the information they need to limit or prohibit adversewater quality impacts in important wetland areas. Specifically, the inventory processcan identify existing wetland usesin 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 Basewhich may be very useful in identifying wetland functions and in designating wetland usesfor 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
35have 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 asOutstanding Resource Waters are the wetland plans which each State is required to develop to comply with the 1986 Emergency Wetlands Resources Act. Beginning infiscal 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 hatmade greater useofthisauthority. ADID isoften 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 aswetland maps, and habitat, water quality, or hydrological studies. Special Area Management Plans (SAMPs) are another planning processwhich may yield useful information. SAMPs refer to a processauthorized 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 hassupported 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 systemsthat can store, analyze and present data related to wetlands in graphic and written forms.64 A reviewing official can quickly accessand overlay a range of different existing information basessuch asflora and fauna inventories, soil surveys,remote sensingdata, watershed and wetland maps, existing usesand criteria, and project proposal information.

36Finally, data is presently emerging on the useof wetlands astreatment areasfor

wastewater, stormwater, and non-point discharges.65 Florida, for instance, has adopted a rule on wastewater releasesinto wetlands.66 Florida prohibits wastewater discharges into the following kinds of wetlands: those designated asoutstanding 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 dischargesare 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 establishesfour “wetland biological quality” standards. First, the flora andfauna ofthewetland cannot bechanged soastoimpair thewetland’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 ofbackground levels. Third, fishpopulations must bemonitored and maintained, andanannual survey ofeach species must beconducted. Fourth, the “importance value” ofanydominant plant species inthecanopy andsubcanopy atany monitoring station cannot be reduced by more than fifty percent, and the average “importance value” ofanydominant plant species cannot bereduced bymore than twenty-five percent”
These types ofefforts, constantly being adjusted to take account of new information in a field where knowledge is rapidly expanding, are fertile sourcesof information for wetland standard writers and 401 certification decision makers.

VIII. SUMMARY OF ACTIONS NEEDED
This handbook hasonly scratched thesurface ofissues surrounding effective use of401certification toprotect wetlands. Thepreceding discussion andexamples from active States have highlighted possible approaches for all Statesto incorporate into their 401 certification programs. Thehandbook shows thatthere aremany things thata State can act on right away to improve the effectivenessof 401 certification to protect the integrity of its wetlands. At the sametime, there are improvements to water quality standards for wetlands which will have to take place within a longer timeframe.

38A. Steps States Can Take Right Away

•

•

•

•

•

• resources. States should designate usesfortheir existing narrative water quality functions typically associated with given wetland types. Such potential uses could beverified forindividual applications with anassessment toolsuchas theWetlands Evaluation Technique orHabitat Evaluation procedure. States should tapintothepotential oftheoutstanding resource waters tierof theantidegradation policy forwetlands. itmay notbeanappropriate designation forallofastate's wetlands, butitcanprovide excellent protection toparticularly valuable orecologically sensitive wetlands from both physical andchemical degradation. States should incorporate wetlands and401certification intotheir other water quality management processes. Integrating thistoolwith other mechanisms suchascoastal onemanagement programs, point andnonpoint source programs, andwater quality management plans, will helpfillthegaps ofeach individuals toolandallow better protection ofwetlands systems from the whole hostofphysical, chemical, andbiological 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 useof 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 issuessurrounding 401 certification such aswhich federal permits and licenses require 401 certification. EPA intends to support States in resolving such issues.
38OWP, 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 Statesto include wetlands as“waters of the State;” provide methods to designate wetland usesthat recognize differences in wetland types and functions; addresssome chemical-specific and narrative biological criteria for wetlands; and discussimplementation of State antidegradation policies.

B: Laying the Groundrrorlc for Future Dedsions Many States are successfullyapplying 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 Watercolumn 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 changescan have severe impacts on wetland quality, but these changesare rarely addressedin 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 coversthree areas: Cumulative E&ct.s, Water Quality, and Mitigation. Although these efforts WiII be &vdoped over ScvuaI year& interim products will be distri%utedto the States. States may find these products of usewhen developing criteria and standards, when identifying and designating wetlands asoutstanding resourcewaters, 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 watershedswith the percentage of wetlands in these watersheds. The types of wetlands, their position, and
39non-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+sourcesof information useful for derignrrtinourerofindividualwe~weredercnbedbyORDinEpA’sQaftguidanct for Advance Identifkatkm Appcndk D.‘EDInformadononregionanyrareor~ ~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 asfonm

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

400 Ecological Status and Trends of the Wetland Resource. A nationwide network

would be established to monitor the wetland resource. Field surveyswould define the expected range of numerical valueswithin each region for particular chemicals and especially, for biological community metrics, acrossa 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 substanceswould 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 designfactors 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) synthesizecurrent 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 synthesisbeing developed asa Ruvisional Guidance Document will be available in 1989. A provisional wxsionofthehandbookwillbcproducedin1990. This will assistStates in identifying areasat greatest risk due to 404 permit activities and thus help target 401 certi&ation and water quality standardsactivities

41Provided below areState 401certification contacts andEPA wetlands contacts

whocanprovide assistance inapplying 401towetlands.
EPA hasasked theCouncil ofState Governments (CSG) tomaintain adatabase ofState wetland contacts andprograms. Inorder tohelp keep thedatabase upto date, please contact CSG when youhavechanges inyour program orstaffcontacts, or ifyoucome across inaccuracies inother State programs. Youcanaccess thisdatabase using virtually anycomputer with amodem. Inorder toobtain yourfree username andpassword contact:

TheCouncil ofState Governments P.O.Box 11910, IronWorks Pike Lexington, Kentucky 40578 phone: (606) 252-2291

APPENDIX A

FEDERAL 401 CERTIFICATION CONTACTS FOR WETLANDS

Dianne Fish Wetlands StrategiesTeam (A-104F) Environmental Protection Agency 401 MStreet, 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 andState programs Staff (A-104F) Environmental Protection Agency 401 MStreet, SW Washington, D.C. 20460 Phone: (202) 475-6745

EPA Region II Mario del Vicario, Chief Maine/Wetlands Prot. Branch (2WMMWP) 26Federal Plaza New York, New York 10278 (212) 264-5170

42EPA 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 RossAvenue 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 ResourcesAssessment(WD-138) l200 Sixth Avenue Seattle, Washington 98101 (206) 442-1412 CD. Robison, Jr. Alaska Operations Office, Region X Federal Building Room E551 701C 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
43State 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) 566-7280WiIliam 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 KmIkcda 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 GarriesIXViShOfsDcp8mcntofthc-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 

### JudyPerry Regulatory Branch Div. of Water Pollution Dept. of EIIV. Quality Engineering 1 Winter Street Bo6to& Massachusetts 02108 (617) 292-5655
LesThomas 

### Iad andWater Management 

### Div. Dept. of 

### Natural Resources P.O.Box30028 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-5171Jim 

### Morris

Water Quality Management Section Dept. of Natural Resources Box 10385 Jackson, Mississippi 39209 (601) 961-5151 LouisFlyM MPLA 1935West 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

47Michael 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 1800Watermark Drive P.O. Bax 1049 Columbus,Ohio 432660149 (614) 981-7130
Brooks Kirlin 

### Water ResourceBuard 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 

### Divisionof Water Resources 291Promenadestreet 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

48Robert 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 103s. 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 1201Greenbrier 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

49APPENDIX 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 suchwaters: (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 usedfor industrial purposes by industries in interstate commerce;*
All impoundments of waters otherwise defined aswaters 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 themselveswetlands) identified in 16, waste treatment systems,including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds asdefined 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 usedas habitat by birds protected by Migratory Bird Treaties or migratory birds which crossState 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 areasthat 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. 50APPENDIX C

SCOPE OF PROJECT REVIEW: PENNSYLVANIA DAM PROPOSAL EXAMPLE
The dam proposed by the City of Harrisburg was to be 3,000feet 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 3,800acres,a total storage capacity of 35,000acre feet, and a pool elevation of 306.5feet. 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 10,000cfs (at a nethead of 125) and minimum flow would have been 2,000cfs. Under normal conditions, all flows up to 40,000cfswould have passedthrough the turbines.
The public notice denying 401 certification for this project stated asfollows:
1. Theconstruction andoperation oftheproject will result inthesignificant lossof wetlands and related aquatic habitat and acreage. More specifically

a. Thedestruction ofthewetlands will haveanadverse impact onthelocal riverecosystem because oftheintegral rolewetlands play inmaintaining thatecosystem.
b. The destruction of the wetlands will causetheloss of beds of emergent aquatic vegetation thatserve ashabitat 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 speciesof special concern. d. All affected wetlands areasare important and, to the extent that the loss of thesewetlands can be mitigated, the applicant hasfailed to demonstrate that the mitigation proposed is adequate. To the extent that adequate mitigation is possible, mitigation must include replacement in the river system.

512. e. Proposed riprapping of the shoreline could further reduce wetland acreage. The applicant hasfailed to demonstrate that there will notbe 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 adversewater 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 sewagesystem replacement areas and the impact of potential

. increased surface flooding. Additionally, information was notprovided to adequately assess theeffect ofraised groundwater onsewer system laterals,

. effectiveness of sewer rehabilitation measuresand potential for increased flows at theHarrisburg wastewater plant.
3. Theapplicant hasfailed todemonstrate thatthere will notbeadissolved oxygen problem asaresult oftheimpoundment. Present information indicates the existing riversystem inthearea issensitive todiurnal, dissolved oxygen fluctuation. Sufficient information was not provided to allow the Department to conclude thatdissolved oxygenstandards will bemet inthepool area. Additionally, the applicant failed to adequately addressthe issueof anticipated dissolved oxygen levels below thedam.
4. Theproposed impoundment will create abackwater onthelower three miles of theConodoguinet Creek. Water quality intheCreek iscurrently adversely affected by nutrient problems. The applicant hasfailed to demonstrate that there will not be water quality degradation asa result of the impoundment.
5. The applicant hasfailed to demonstrate that there will not be an adversewater quality impact resulting from combined sewer overflows.
6. The applicant hasfailed to demonstrate that there will not be an adversewater quality impact tothe150acrearea downstream of the proposed dam and upstream from the existing Dock Street dam.
7. The applicant hasfailed 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 bassspawning relative to the frequency of turbid
52conditions during spawning was not adequately addressedand 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 passagewaysfor upstream and downstream migration, significant declines in the numbers of fish successfullynegotiating the obstruction are anticipated.
9. The applicant hasfailed to demonstrate that there will not be an adversewater quality impact related to sedimentation within the pool area.

53APPENDIX D EXAMPLES OF CERTIFICATION CONDITIONS **MARYLAND** Maryland certified with conditions the fill/alteration of 6.66 acresof 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 severelydegraded. An unbuffered tractor crossinghad 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 servedasa flood storage and ground water recharge area. Filling thisareaforconstruction of a fairway would eliminate some 4.5 acres of wetlands. Additionally, other smaller wetland areason 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 asa 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 basison 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 asfollows:
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 surfacesshall 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];

543. The applicant shall ensure that fish speciesare 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 thatall 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, insectsand 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 aretobeused ongreens, tees, andfairways only. From the second year of operation, all applications of fertilizers at the golf course shall beinthelower range dosage rates [specified]. The useofslow release compounds suchassulfur coated urea isrequired. There shall be no application of fertilizer within twoweeks of verticutting, wring or spiking operations.

55l * 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 suspendedsolids 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 measuresto 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 subsequentsoil erosion. If riprap is utilized, it is to be of suchweight and size that bank stressor slump conditions will not be created due to its placement. Fill is to be clean and of suchcomposition 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 asdescribed in the 208 Construction Water Quality Management Plan are to be implemented. Green wncrete will not be permitted to enter the watercourse unlesscontained 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 seasonApril 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 

### studystreams,streamson the Natural Stream PreservationList or the New River 

### Gorge National River. Thesestreamsinclude New River (confluencewith Gauky to mouth of Grccnbrier); Grccnbrier River (mouth to Knapps Creek), 

### Birch River (mouth to Cora Brown Bargein NicholasCounty),Anthony Creek, Cranbmy Run, BluestoneRiver, 

### 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 awareof applicable NathwidcPcmitco&itions,amactthcCoqsofEngincmpriorto conducthganyacthityautborhdbyamhwidepcrmitinordcrtobcadviscd of 

### applicableamditions.

57EXAMPLES 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 causethe lossor substantial adverse modification of 10 acresor more of waters of the United States, including wetlands. For dischargeswhich causethe lossor substantial adverse modifkation of 1 to 10acres of suchwaters, including wetlands, notification of the District Engineer is required in accordance with 330.7of 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%utarysystem to intcrstatcwatersor 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 changefrom 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 Reservesand Experimental Areas 11. State Recreation Areas
5812 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.

59Oil and gasactivities 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 areaswill be provided to designated State agencieswhich 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 areasof isolated wetlands greater than 10 acresand lakes greater than 10acresabove the headwaters 3. North Slope Borough wet and moist tundra areasnot already covered by APP process 4. Wet and moist tundra areasoutside 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: areasdesignated A-2, B-l, B-2 in the Alaska River Cooperative State/Federal Study 9. Susitna Area Plan: areasdesignated 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

60environmental 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 agencywnceming the need for an individual permit review.
2 Existing fish and wildlife atlasesand 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 agencieswill 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 changeswill 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 unlessthe REGIONAL CONDITION is sooner revoked by the Department of the Army with prior coordination with the State of Alaska.

61APPENDIX E

FederalRegister /

Vol.45,No.249/ Wednesday, December 24,1980 / RulesandRegulations 85355

Subpart H-Actions toMinimize Adverse Effects Note.- There aremany actions which can beundertaken inresponse to§203.10(d) to minimize theadverse effects ofdischarges of dredged orfillmaterial. Some ofthese, grouped bytype ofactivity, arelisted inthis subpart. §230.70 Actions concerning thelocation ofthedischarge. The effects ofthedischarge can be minimized bythechoice ofthedisposal site.Some oftheways toaccomplish thisareby: (a)Locating andconfining the discharge tominimize smothering of organisms: (b)Designing thedischarge toavoid a disruption ofperiodic water inundation patterns: (c)Selecting adisposal sitethathas been used previously fordredged material discharge: (d)Selecting adisposal siteatwhich thesubstrate iscomposed ofmaterial similartothatbeing discharged, such as discharging sand onsand ormud on mud:

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