United States
              Environmental Protection
                        Office of Water
                           EPA 843-B-89-100
                           April 1989
Wetlands  And
401 Certification

Opportunities  And
Guidelines For States
And Eligible Indian Tribes
                                       Printed with Soy/Canda Ink on paper that
                                       contain* at teas! 50% racyctod iber


        •                          WASHINGTON. D.C. 20460

                                     JUN 28
                                                                         OFFICE OF

       I am pleased to introduce this handbook, "Wetlands and 401 Certification,"
developed by EPA's Office of Wetlands Protection.  This document examines the
Section 401 State water quality certification process and how it applies to wetlands.  We
strongly encourage States to use  this handbook as one reference when establishing a
wetlands protection program or improving wetlands protection tools.

       Protection of wetland resources has become an important national priority as
evidenced by President Bush's 1990 Budget statement calling for "no net loss" of
wetlands.  In addition, the National Wetlands Policy Forum included a recommendation
in their 1988 report which says that States should  "make more aggressive use of their
certification  authorities under Section 401 of the Clean Water Act, to protect wetlands
from chemical and other types of alterations".  This handbook is intended to help States
do just that.

       EPA would like to work with States who wish  to delve into 401 certification  for
wetlands.  You will find EPA Regional contacts listed in Appendix A of the document.
The Office of Wetlands Protection plans to provide additional technical support
including guidance focused on wetland-specific water  quality standards.

       It is very important to begin now to address the loss and degradation of this
nation's wetlands.  That is why 401 certification is a perfect tool, already in place, for
States just getting started.  It can also help States fill some gaps in their own statutory
authorities protecting  wetlands.  States  can make great  strides using their existing 401
certification  authorities, while developing the capability and the complementary
programs to provide more comprehensive protection  for wetlands  in the future.
                                                     vr   .  avis
                                                   Office of Wetlands Protection



This document was prepared by Katherine Ransel of the Environmental Law
Institute, and Dianne Fish of EPA's Office of Wetlands Protection, Wetlands
Strategies and State Programs Division. Many thanks to the reviewers of the
draft handbook, and to those States who gave us  information on their programs.

For additional copies contact:

      Wetlands Strategies and State Programs Division
      Office of Wetlands Protection A-104F
      Environmental Protection Agency
      401 M Street, SW
      Washington, B.C.  20460

      Phone: (202) 382-5043


                                   TABLE OF CONTENTS

       I.     INTRODUCTION	5

             HOW DOES IT WORK? 	8

             PROTECT WETLANDS	9

             A.    Wetlands Should be Specifically Designated as
                   Surface Waters of the States	10

             B.    General Requirements of EPA's Water Quality
                   Standards Regulations 	12

             C.    Applying Water Quality Standards to Wetlands
                   - What States are Doing Now	14

                   1.     Using Narrative Criteria	15

                   2.     Highest Tier of Protection - Wetlands as
                         Outstanding Resource Waters	18


             A.    The Permits/Licenses Covered &
                   the Scope of Review	20

                   1.     Federal Permits/Licenses Subject to
                         Certification	20
                   2.     Scope of Review Under Section 401 	'.	22


      B.     Conditioning 401 Certifications for
            Wetland Protection	.	23

            1.     What are Appropriate Conditions?	23

            2.     The Role of Mitigation in Conditioning Certification	25

            3.     The Role of Other State Laws	25

      C.     Special Considerations for Review of Section 404 Permits:
            Nationwide and After-the-Fact Permits	27

            1.     Nationwide Permits	27

            2.     After-the-Fact Permits	29


      A.    Review Timeframe and "Complete" Applications	31

      B.    Requirements for the Applicant	32

      C.    Permit Fees	33

      D.    Basis for Certification Decisions	.....	33

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

      B.    Laying the Groundwork for Future Decisions	39


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)(l)Guidelines	62


       The issues discussed in this handbook were identified through discussions with
 State 401 certification program personnel and through a workshop held in December
 1987 with many of the States who actively apply 401 certification to wetlands. The
 handbook includes examples of how some States have successfully approached the
 issues discussed.  Because the water quality  certification process is continually evolving,
 we do not attempt to address  all the issues here.  This handbook is a first step towards
 clarifying how 401 certification applies to wetlands, and helping States use this tool
 more effectively.

       EPA would like to work with the States to ensure that their authority under
 Section 401 is exercised in a manner that achieves the goals of the Clean Water Act
 and reflects the State role at the forefront in administering water quality programs.
 Clearly, the integrity of waters of the U.S. cannot be protected by an exclusive focus on
 wastewater  effluents in open, waters. While  the federal Section 404 program addresses
 many discharges into wetlands, and other federal agencies have environmental review
 programs which benefit wetlands, these do not substitute for a State's responsibilities
 under Section 401.  A State's  authority under Section 401 includes consideration of a
 broad range of chemical, physical, and biological impacts.  The State's responsibility
 includes acting upon the recognition that wetlands are critical components of healthy,
 functioning aquatic systems.
      To help States implement the guidance provided in this handbook and to foster
communication on 401 issues, you will find a list of State 401 certification contacts and
federal EPA contacts in Appendix A.  In order  to keep this and other wetland  contact
lists current, EPA has asked the Council of State Governments to establish a
computerized database of State wetland programs and contacts (See Appendix A for
details.)   EPA is also refining a list of Tribal contacts to foster communication with
interested Tribes.                                       -        -             ;

                      SUMMARY OF ACTIONS NEEDED

The following is a summary of the activities needed to make 401 certification a
more effective 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 decisions.  Tribes, who primarily are just
beginning to develop wetlands programs, should consider these actions  (along
with developing water quality standards) as first steps to becoming more involved
in wetlands  regulatory efforts.  The actions below are discussed throughout the

    *     All states should begin by including wetlands  in their definitions of
          state waters.

    *     States Should develop or modify their existing 401 certification and
          water quality standard regulations and guidelines to accomodate
          special wetland considerations.

    *     States should make more effective use of their existing narrative water
          quality standards (including the antidegradatiori policy) to protect the
          integrity of wetlands.

    *     States should initiate or improve upon existing inventories of their
          wetland resources.

    *      States should designate uses for these wetlands based on wetland
          functions associated with each wetland type.  Such estimated uses
          could be verified when needed for individual applications with an
          assessment tool such as the Wetlands Evaluation Technique,  or Habitat
          Evaluation Procedure, or region-specific evaluation  methods.

    *      States should tap into the potential of the outstanding resource waters
          designation of the ant {degradation policy for their wetlands.

    *      States should incorporate 401 certification for wetlands into their water
          quality management planning process.  This process can  integrate
         wetland resource informationwith different water management
          programs affecting wetlands (including coastal zone management,
          nonpoint source and waslewater programs)^


       States may grant or deny "certification" for a federally permitted or licensed
 activity that may result in a discharge to the waters of the United States, if it is the
 State where the discharge will originate. The decision to grant or deny certification is
 based on a State's determination from data submitted by an applicant (and any other
 information available to the State) whether the proposed activity will comply with the
 requirements of certain sections of the Clean Water Act enumerated in Section
 401(a)(l).  These requirements address effluent limitations for conventional and
 nonconventional  pollutants, water quality standards, new source performance standards,
 and toxic pollutants (Sections 301, 302,  303, 306 and 307).  Also included are
 requirements of State law or regulation more stringent than those sections or their
 federal implementing regulations.

       States adopt surface water quality standards pursuant to Section 303 of the Clean
 Water Act  and have broad authority to base those standards on the waters' use and
 value for "public water supplies, propagation of fish and wildlife, recreational purposes,
 and . . . other purposes."4  All permits must include effluent limitations at least as
 stringent as needed to maintain established beneficial uses and to  attain the  quality of
 water designated by States for their waters.5 Thus, the States' water quality  standards
 are a critical concern of the 401 certification process.                           !

       If a State  grants water quality certification to an applicant for a federal license
 or permit, it is in effect saying that the  proposed activity will comply with State water
 quality standards (and the other CWA and State law provisions enumerated  above).
 The State may thus deny certification because the applicant has not demonstrated that
 the project  will comply with those requirements.  Or it may place  whatever limitations
 or conditions on  the certification  it determines are necessary to assure compliance with
 those provisions,  and with any other  "appropriate" requirements of State law.

       If a State  denies certification,  the federal permitting or licensing agency is',
 prohibited from issuing a permit or license. While the procedure varies from State to
 State, a State's decision to grant or deny certification is ordinarily  subject to  an
 administrative appeal, with review in the State courts designated for appeals  of agency
 decisions.  Court review is typically limited to the question of whether the State
 agency's decision is supported by  the record and is not arbitrary or capricious.  The
courts generally presume regularity in agency procedures and defer to agency expertise
 in their review.6

      States may also waive water quality  certification, either affirmatively or
involuntarily.  Under Section 401(a)(l),  if the State fails to act on  a certification request

 "within a reasonable time (which shall not exceed one year)" after the receipt of an
^application, it forfeits its authority to grant conditionally or to deny certification.

       The most important regulatory tools for the implementation of 401 certification
 are the States' water quality standards regulations and their 401 certification
 implementing regulations and guidelines.  While  all of the States have some form  of
 water quality standards, not all States have standards which can be easily applied  to
 wetlands.  Most Tribes do not yet have water quality standards, and developing them
 would be a first step prior to  having the authority to conduct water quality  certification.
 Also, many States have not adopted regulations  implementing their authority to grant,
 deny and condition water quality certification.  The remainder of this handbook
 discusses specific approaches, and elements of water quality standards and 401
 certification regulations that OWP views as effective to implement the States' water
 quality certification authority,  both generally, and specifically with regard to wetlands.

       In States without a wetlands regulatory program, the water quality certification
 process  may be the only way in which a State can exert any direct control over projects
 in or affecting wetlands.  It is thus critical for these States to develop a program that
 fully includes wetlands in their water quality certification process.

       But even in States which have their own wetlands regulatory programs,  the water
 quality certification process can be an extremely valuable tool to protect wetlands.
 First, most State wetland regulatory laws are more limited in the wetlands that are
 subject to regulation than is the Clean Water Act.  The Clean Water Act covers all
 interstate wetlands; wetlands adjacent to other regulated waters; and all other  wetlands,
 the use, degradation or destruction of which  could affect interstate or foreign
 commerce.7. This  definition is  extremely broad and one would be hard pressed to find a
 wetland for which it could be shown that its use or destruction clearly would not affect
 interstate commerce. Federal  jurisdiction extends beyond that of States which regulate
 only coastal and/or shoreline wetlands, for instance.  And in States that regulate inland
 wetlands, often size limitations prevent States from regulating wetlands that are subject
 to federal jurisdiction.8

       Even if State jurisdiction is as encompassing or more so than federal jurisdiction,
 however, water quality certification may still be a valuable and essential wetlands
 protection device. In the State of Massachusetts, for instance, a 401 certification is not
 simply "rubber stamped"  on the permitting decisions made pursuant to the          ,
 Massachusetts Wetlands Protection Act.  The State has denied certification to  proposed
 projects requiring a federal permit even though the State wetlands permitting authority

 (in Massachusetts, permits are 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  processes so that the provisions  of each program augment the other
 to provide more comprehensive protection.  This approach not only strengthens
 protection, it reduces duplication of State efforts and coordinates permit review for


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

       In order to bring wetlands fully into the State  water quality certification process,
 a first step is to include the term "wetlands"  in the State water quality standards'
 definition of  surface waters.  EPA will be working with  all  States through  the triennial
 review process of State standards to ensure that their definitions  are at least as
 comprehensive as the federal definitions for waters (see Appendix B for federal
 definitions  of "Waters of the U.S." and the term "wetlands").

      It may seem minor, but from every standpoint, it is important to have wetlands
specifically designated as surface waters in State water quality standards.  First, it
precludes any arguments that somehow wetlands are  not covered by water quality
standards.  Second, it predisposes decision makers (from 401 certification  program
managers, to  the head of the agency or a water quality  board, all the way to the judges


on the courts that may review these decisions) to consider the importance of wetlands
as part of the aquatic ecosystem.  Third, it makes it clear that wetlands are to be
treated as waters in and of themselves for purposes of compliance with water quality
standards and not just as they relate to other surface waters.

       The third point is critical and bears further explanation.  When States include
wetlands in the definition of surface waters covered by their water quality standards,
they clarify that activities in or affecting wetlands are subject to the same analysis in the
certification decision as are projects affecting lakes,  rivers, or streams.  This is  not to
say that a wetland project's effects on adjacent or downstream waters are not also part
of the water quality certification analysis.  Rather, it is to say that wetlands, either
adjacent to or isolated from other waters, are waterbodies in and of themselves and an
applicant for water quality certification must show that a proposed project will not
violate water quality standards in those wetlands, as well as in other waters.

       The States currently have a variety of definitions of "waters of the State" in the
legislation that enables water quality standards (e.g., multi-media environmental
protection acts, water quality acts, and the like).  Only three States currently have the
term  "wetlands" explicitly listed as one of the types of waters in this enabling legislation
(Nebraska, Rhode Island, West Virginia). These States need only to repeat that
definition in their water quality standards and their 401 certification implementing

       While most States do not have the term "wetlands" in their enabling legislation,
many use the term "marshes" in a list of different types of waters to illustrate "waters of
the State" in their enabling legislation. Kentucky, for example, defines waters of the
State as:

       . . . any and all rivers, streams,  creeks, lakes, ponds, impounding reservoirs,
       springs, wells,  marshes,  and all other bodies of surface or underground water,
       natural or artificial, situated wholly or partly within or bordering upon the
       Commonwealth or within its jurisdiction.10

       When used in this way, the term "marshes" is typically understood to be generic
in nature rather than being descriptive of a type  of wetland, and can therefore be
considered as the equivalent of the term "wetlands".  In these States, however, in order
to ensure that  the term "marshes" Is interpreted as the equivalent of wetlands, the best
approach is to include the term,"wetlands" in the definition of surface waters used in
the State's water quality standards and in the 401 certification implementing regulations.

       There is another group of States that  has  neither the term "wetlands"  or
"marshes" in the enabling legislation's definition of waters of the State.  These
definitions typically contain language that describes in some generic manner,  however,


 all waters that exist in the State.  They may not specifically designate any particular
 type of water body, as, for instance, Tennessee's Water Quality Control Act:

       . . . any and all water, public or private, on or beneath the surface of the
       ground,  which [is] contained within, flowfsj through, or borderfsj upon
        Tennessee or any portion thereof. . . ,n

       Or they may specify some types of surface waters and then generically include all
 others with a clause such as  "and  all other water bodies" or "without limitation", as does

       All waters within the jurisdiction of the Commonwealth,  including, without
       limitation, rivers, streams, lakes, ponds, springs, impoundments, estuaries, and
       coastal waters and groundwaters.12

       In these States, as  in the States with "marshes" in the enabling legislation's
 definition of waters, regulators should  clarify that wetlands are part of the surface
 waters  of the State subject to the  States'  water  quality standards by including that term,
 and any others they deem appropriate, in a definition of surface waters in their water
 quality standards and  in their 401  certification implementing regulations.

       Both Kentucky and Ohio, for instance, which have the term "marshes," but not
 the term "wetlands" in their enabling legislation, have  included the term "wetlands" in
 their surface water quality standards' definition  of waters.13 Massachusetts, which does
 not have the term  "wetlands" or "marshes" in its enabling legislation, has  put the term
 "wetlands" into its  water quality standards also.14 Additionally, Ohio's 401 certification
 implementing regulations  include the term "wetlands" in the definition of waters covered
 by those regulations and  specifically address  activities affecting the integrity of
       B.    General Requirements of EPA's Water Quality Standards Regulations.16

       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 requirements
of water quality standards generally.  Congress has given the States broad authority to
adopt water quality standards, directing only that the States designate water uses that
protect the public health and welfare and that take  into account use of State waters for
drinking water, the propagation of fish and wildlife,  recreation, and agricultural,
industrial and other purposes.

       EPA's water quality standards regulations require States to adopt water quality
standards which have three basic components:  use designations, criteria to protect
those uses, and an antidegradatiqn policy.

       EPA directs that, where attainable, designated uses must include, at a minimum,
uses necessary to protect the goals of the CWA for the protection and propagation of
fish, shellfish,  and wildlife and provide for recreation  in and on  the waters.  This
baseline is commonly referred to as the "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 analysis based on at least one of six factors.17
In no event, however, may a beneficial existing use (any use which is actually attained
in the  water body on or after November 28, 1975) be removed  from a water body or

       Criteria, either pollutant-specific numerical criteria or narrative criteria, must
protect the  designated and existing uses.  Many of the exiting numeric criteria are not
specifically adapted to the characteristics of wetlands  (see last section of handbook for
steps in this direction).  However, almost all States have some form of the narrative
standards (commonly known as the "free froms") which say that all waters shall be free
from substances that: settle to form objectionable deposits; float as debris, scum, oil or
other matter to form nuisances; produce objectionable color, odor, taste,  or turbidity;
injure, or are  toxic,or produce adverse physiological responses in humans,  animals, or
plants; or produce  undesirable or nuisance aquatic life.  States have also used other
narrative criteria to protect wetland quality. The use of criteria to protect wetlands is
discussed in the following section.

       In addition,  EPA also requires that all States adopt an antidegradation policy.
Several States have used their antidegradation policy  effectively  to protect the quality of
their wetland resources.  At a minimum, a State's antidegradation policy must be
consistent with the following provisions:

(1)    Existing uses and the level of water quality necessary to  protect existing uses in
       all segments of a water body must be maintained;

(2)    if the quality of the water is higher than that necessary to support propagation
       of fish, shellfish, and wildlife, and recreation in and on the water, that quality
       shall be maintained and protected, unless the  State finds that lowering the water
       quality is justified by overriding economic or social needs determined after full
       public involvement.  In no event,  however, may water quality fall below that
       necessary to protect the existing beneficial uses;

(3)    if the waters have been designated as outstanding resource waters (ORWs) no
       degradation (except temporary) of water quality is allowed.


        In the case of wetland fills, however, EPA allows a slightly different
 interpretation of the antidegradation policy.18  Because on the federal level, the
 Congress has anticipated the issuance of at least some permits by virtue of 'section 404,
 it is EPA's policy that, except in the case of ORWs, the "existing use" requirements of '
 the antidegradation  policy are met if the wetland fill does not cause or contribute to
 "significant degradation" of the aquatic environment as defined by Section 230 lOfc) of
 the Section 404(b)(l) Guidelines.19

        These Guidelines lay a substantial foundation for protecting wetlands and other
 special aquatic sr ;s  from degradation or destruction.  The purpose section of the
 Guidelines states that: .

 ". . . from a national perspective,  the degradation or destruction of special aquatic sites,
 such as filling operations in wetlands, is considered to be among the most severe
 environmental impacts covered by these Guidelines. The guiding  principal should be
 that degradation or  destruction of special sites may represent an irreversible  loss of
 valuable aquatic resources."20

       The Guidelines also state that the following effects contribute to significant
 degradation, either individually or collectively:

 ". . . significant adverse effects on (1) human health or welfare, including effects on
 municipal water supplies, plankton, fish, shellfish, wildlife, and special aquatic sites
 (e.g., wetlands);  (2) on the life stages of aquatic life and other wildlife dependent on
 aquatic ecosystems, including the  transfer, concentration or  spread of pollutants or
 their byproducts beyond  the site through biological, physical, or chemical process;  (3)
 on ecosystem diversity, productivity and stability, including  loss of fish and wildlife
 habitat or loss of the capacity of a wetland to  assimilate nutrients, purify water or
 reduce wave energy;  or (4) on recreational, aesthetic, and economic values."21

       The Guidelines may be used by the States to determine "significant degradation"
 for wetland fills.  Of course, the States are free to  adopt stricter requirements for
 wetland fills in their  own antidegradation policies, just as they may adopt more stringent
 requirements than federal law requires for their water quality standards in general.

       C.    Applying Water Quality Standards Regulations to Wetlands - What States
             are Doing Now

       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 '

for a wide variety of plants and animals.  These States have taken several different
approaches to wetlands protection in their water quality certification process.
             1.  Using Narrative 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] 11 waters of this
State shall be protected for the basic uses of water contact recreation, fish, other
aquatic life, wildlife, and water supply."22 In its denial, Maryland stated:

       Storm waters are relieved of much  of their sediment loads via overbanking
       into the adjacent wetland and a resultant decrease in nutrient and sediment
       loading to downstream receiving waters is occurring. To permit the fill of this
       area would eliminate these benefits and in the future,  would leave the
       waterway susceptible to adverse increased volumes of storm waters and their
       associated pollutants.  It is our determination that [a specified waterway] . . .
       requires protection  of these wetland areas to assure that the waters of this
       State are protected for the basic uses of fish, other aquatic life,  wildlife and
       water supply.

       Because wetlands  vary tremendously in background levels of certain parameters
measured by the traditional  numerical/chemical criteria applied to surface waters, some
States have relied on "natural water quality" criteria to protect wetlands in  the 401
certification process. Minnesota, for instance, has taken this approach in denying
certification for a flood control project because of the State's "primary concern . . . that
the project would likely change Little Diann Lake from an acid bog to a fresh-.
circumneutral water chemistry type of wetland."  The agency was concerned that
"introduction of lake water into the closed acid system of Little Diann Lake would
completely destroy the character of this  natural resource."  It relied on a provision of its
water quality standards allowing the State to  limit the addition of pollutants according
to background levels instead of to the levels specified by criteria for that class of waters
generally.  The denial letter pointed out that this rule "States that the natural
background level may be used instead of the specified water quality standards, where
reasonable justification exists for preserving the quality found in the State of nature."
According to the denial letter, because of the clear potential for impacts to the bog, the
State was invoking that particular provision.2
       Tennessee has relied on broad prohibitory language in its water quality standards
to deny water quality certification for wetland fill projects and has been upheld in court.
Hollis v. Tennessee Water Quality Control Board24 was brought by a 401 certification

 applicant who proposed to place fill along the southeastern shoreline of a natural
 swamp lake.  The court upheld the denial of 401 certification, explaining:,

        Reelfoot Lake is classified for fish and aquatic life, recreation,  and livestock
        watering and  wildlife uses.  The [Water Quality] Board has established
        various standards for the waters in  each classification. Among other things,
        these standards pertain to dissolved oxygen, pH,  temperature, toxic substances,
        and other pollutants.  The Permit Hearing Panel found the petitioner's
        activity will violate the  "other pollutants" standard in each classification.
        Collectively, these ["other pollutants"] standards  provide that other pollutants
        shall not be added to the water that will be detrimental to fish or aquatic
        life, to recreation, and to livestock watering and  wildlife.

        The court found that while there was no evidence that the project in and of
 itself would "kill" Reelfoot Lake, there was evidence .that the shoreline was important to
 recreation because tourists visit Reelfoot to view  its natural beauty and the lacustrine
 wetlands function as a spawning ground for fish and produce food for both fish and
 wildlife.  It found that although the evidence in the record did not quantify the damage
 to fish and aquatic life, recreation, and wildlife that would result from the proposed fill,
 the opinion of the State's expert that the activity  would be detrimental to these uses
 was sufficient to uphold the denial of certification.

       Kentucky has also relied on narrative criteria.  It denied an application to place
 spoil from underground mine construction in a wetland area because wetlands are
 protected from pollution as "Waters of the Commonwealth" and because placing spoil
 or any fill material (pollutants under KRS 224.005(28)) in a wetland specifically violated
 at  least two water quality criteria.  One of Kentucky's criteria, applicable to all surface
 waters, provides that the waters "shall not be aesthetically or otherwise degraded by
 substances that. . . [ijnjure, [are] toxic to or produce adverse physiological or behavioral
 responses in humans, animals,  fish and other aquatic life."

       The other criterion, applicable to warm water aquatic habitat, provides that
 "ffjlow shall not be altered to a degree which will adversely affect the aquatic
 community."25  This second criterion which addresses hydrological changes is a
 particularly important but often overlooked component to include in water quality
 standards to help maintain wetland quality.  Changes  in flow can severely alter the
 plant and animal species composition of a wetland, and destroy the entire wetland
 system if the change is great enough.

       Ohio has adopted 401 certification regulations applicable to wetlands (and other
waters) that, together with internal review guidelines, result in an approach to the 401
certification decision  similar to that of the 404(b)(l) Guidelines.  Its 401 certification
regulations first direct that no certification may be issued unless the  applicant has


demonstrated that activities permitted by Section 404 or by Section 10 of the Rivers
and Harbors Act  (RHA) will not:

       (1) prevent or interfere with the attainment or maintenance of applicable water
       quality standards;

       (2) result in a violation of Sections 301, 302, 303, 306 or 307 of the CWA;
       additionally, the agency may deny a request notwithstanding the applicant's
       demonstration of the above if it concludes that the activity "will result in adverse
       long or short term impacts on water quality"26

       Ohio has placed all of its wetlands as a class in the category of "State resource
waters."  For these waters, Ohio has  proposed amendments to its standards to say that
"[p]resent ambient water quality and  uses shall be  maintained and protected without
exception." 27  The proposed standards also  require that point source discharges to
State resource waters be regulated according to  Ohio's biological  criteria for aquatic

       However, Ohio has not yet developed biological indices specifically for wetlands.
Thus,  for projects affecting wetlands, it bases its certification decisions on internal
review guidelines  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
are as follows:

       (a) if the project is not water dependent, certification is denied;

       (b) if the project is water  dependent, certification is denied if there is a viable
       alternative  (e.g., available upland nearby is viable alternative);

       (c) if no viable alternatives exist and impacts to wetland cannot be made acceptable
       through conditions on certification (e.g., fish  movement criteria, creation of
       floodways to bypass oxbows, flow through ^criteria), certification is denied.

Ohio's internal review guidelines also call for (1) an historical overview and ecological
evaluation of the  site (including biota inventory and existing bioaccumulation studies);
(2) a sediment physical characterization (to  predict contaminant levels) and (3) a
sediment analysis.28.   ,              .           "

       Using these guidelines, Ohio frequently conditions  or denies certification for
projects that  eliminate wetland  uses.   For instance, Ohio  has issued a proposed denial
of an  application to fill a three  acre  wetland area  adjacent to Lake Erie for a

 recreational and picnic area for a lakefront marina based on its classification of
 wetlands as "State resource waters:"

        Wetlands serve a vital ecological function including food chain production, provision
        of spawning, nursery and resting habitats for various aquatic species, natural
       filtration of surface water runoff, ground water recharge, and erosion and flood
        abatement. The CL4.C Section 3745-1-05(C) includes wetlands fin the] State
        Resource Waters category and allows no further water quality degradation which
        would interfere with or become injurious to the existing uses.  The addition of fill
     .   material to the wetland would cause severe adverse effects to the wetland.  This fill
        would eliminate Valuable wetland habitat, thereby degrading the existing use.

        The justification for this denial, according to Ohio program managers, was not
 only that the project would  interfere with: existing 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 are determined to be of public necessity,
 this approach may give way to other public interest concerns.  For example, a highway
 is not water dependent per  se; if, however, safety and financial considerations point to a
 certain route that necessitates filling wetlands, the agency may allow it.  In that event,
 however, mitigation by wetland creation and/or restoration would be sought by the
 agency as a condition of certification.
              2.     Highest Tier of Protection: Wetlands as Outstanding Resource

       One extremely promising approach taken by some of the States has been to
designate wetlands as outstanding resource waters (ORW),  in which water quality must
be maintained and protected according to EPA's regulations on antidegradation (i.e., no
degradation for any purposes is allowed, except for short term changes which have no
long term consequences).29 This approach provides wetlands with significant protection
if the States' antidegradation  policies are at least as protective as that of EPA.   EPA
designed this classification not only for the highest quality waters, but also for water
bodies which are "important,  unique, or sensitive ecologically, but whose water quality
as measured by the traditional parameters (dissolved  oxygen, pH, etc.)  may not be
particularly high or whose character cannot be adequately described by these
parameters."30   This description is particularly apt for many wetland systems.

      The designation of wetlands as outstanding resource  waters has occurred in
different ways in different States.  Minnesota, for instance, has designated some of its
rare, calcareous fens as ORWs and intends to deny fills in these fens.

       Ohio has issued for comment, proposed revised water quality standards that
 include a newly created "outstanding State resource waters" category. Ohio intends to
 prohibit all point source discharges to these waters. Of fourteen specific water bodies
 proposed to be included in this category by the Ohio EPA at this time, ten are
 wetlands: four fens; three  bogs; and three marshes.

       Because the designation of wetlands as ORWs is  such an appropriate
 classification for many wetland systems, it would behoove the States to adopt
 regulations which maximize the ability of State agencies  and citizens to have wetlands
 and other  waters placed in this category.   The  State of Kentucky has set out
 procedures for the designation of these waters in its water quality standards. Certain
 categories  of waters automatically included as ORWs are: waters designated under the
 Kentucky Wild Rivers Act or the Federal Wild and Scenic Rivers Act; waters within a
 formally dedicated nature  preserve  or  published in the registry of natural areas and
 concurred  upon by the cabinet; and waters that support federally recognized
 endangered or threatened species.  In addition,  Kentucky's water quality standards
 include a provision allowing anyone to propose waters for  the ORW classification.31

       Minnesota has  a  section in its water quality  standards that could be called an
 "emergency" provision for  the  designation of outstanding resource waters.   Normally it
 is necessary under Minnesota's water quality standards for the agency to provide  an
 opportunity for a hearing before identifying and establishing  outstanding resource waters
 and before prohibiting or restricting any discharges to  those waters.  The "emergency"
 provision allows the agency to prohibit new or expanded discharges for unlisted waters
 "to  the extent. . . necessary to preserve the existing high quality, or to preserve the
 wilderness,  scientific, recreational, or  other special characteristics that make the water an
 outstanding resource value water."32  This provision  allows the agency to protect the
 waterbody  while completing the listing process which could take  several years.

       Moreover,  some States  have  improved on the formulation of the ORW
 classification by spelling out the protection provided by that designation more
 specifically than do EPA's regulations.   For instance, Massachusetts' water quality
standards state that for "National  Resource Waters:"

       Waters so designated may not be degraded and are  not subject  to a variance
      procedure.  New discharges of pollutants  to such waters  are prohibited.
      Existing discharges shall  be eliminated unless the discharger is able to
      demonstrate that:  (a) Alternative means of disposal are  not reasonably
      available or feasible; and (b)  The discharge will not affect the quality of the
      water as a national resource.33

 This provision explicitly outlines how the State intends to maintain and protect the
 water quality of ORWs.  Another provision which Minnesota uses to control discharges
 to waters that flow into ORWs for their effect on ORWs is that:

       The  agency shall require new or expanded discharges that flow into
       outstanding resource value waters [to] be controlled so as to assure no
       deterioration  in the quality of the downstream outstanding resource value

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

       The language of Section 401(a)(l) is written very broadly with respect to the
 activities it covers.  "[A]ny activity, including, but not limited to, the construction or
 operation of facilities, which may result in any discharge" requires water quality

       When the Congress first enacted the water quality certification provision in 1970,
 it spoke of the "wide variety of licenses and permits .  . . issued by various Federal
 agencies," which "involve activities or operations potentially affecting water quality."35
 The purpose of the water quality certification requirement, the Congress said, was to
 ensure that no license or permit would be issued "for  an activity that through
 inadequate planning or  otherwise could in fact become a source of pollution."36

             1. Federal Permits/Licenses Subject to Certification

       The first consideration is which federal permits or licenses are subject to 401
 certification. OWP has  identified five federal permits  and/or licenses which authorize
 activities which may result in a discharge  to the waters.  These are: permits for point
 source discharges under Section 402 and discharges of dredged and fill material under
 Section 404 of the Clean Water Act; permits for activities in navigable waters which
 may affect navigation under Sections 9 and 10 of the  Rivers and Harbors Act  (RHA);
and licenses required for hydroelectric projects issued under the Federal Power Act.

      There are likely other federal permits and licenses,  such as permits for activities
on public lands, and Nuclear Regulatory Commission licenses, which may result in a
discharge and thus require 401 certification.  Each State should work with EPA and the
federal agencies active in its State to  determine whether 401 certification is in fact

       Indeed, it is not always clear when 401 certification should apply.  For instance,
• there remains some confusion under Sections 9 and 10 of RHA concerning which
projects may involve or result in a discharge, and thus require State certification.  In
many cases there is an overlap between Section 404 CWA and Sections 9 and 10 RHA.
Where  these permits overlap, 401 certification always applies.  Under the Section 404
regulations, the question of whether dredging involves a discharge and is therefore
subject  to Section 404, depends on whether there is more than "de minimis, incidental
soil movement occurring during normal dredging operations".37

      Where only a Section  9 or 10 permit is required, 401 certification would apply if
the activity  may lead to a  discharge.  For example,  in the case of pilings, which the
Corps sometimes considers subject to Section 10 only, a 401 certification would be
required for the  Section 10 permit if structures on top of the pilings may result in a

      States should notify the regional office of federal permitting or licensing agencies
of their authority to review these permits and licenses (e.g., the Corps of Engineers for
Section 404 in nonauthorized States,  and Sections 9 and 10 of the RHA; EPA for
Section 402 permits in nonauthorized States; and the Federal Energy Regulatory
Commission (FERC) for hydropower licenses).   In their 401 certification implementing
regulations, States should also give notice to  applicants for these particular federal
permits and licenses, and for all other  permits and  licenses  that-may result in a
discharge to waters of the State, of their obligation to obtain 401 certification from the

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

      1.1.   Scope. . . . Section 401 of the Clean Water Act requires that- any
      applicant for a federal license or permit to conduct an  activity which will or
      may discharge into waters of the  United States  (as defined in the  Clean
      Water Act) must present the federal authority with a  certification from the,
      appropriate State agency.  Federal permits and licenses issued by the federal
      government requiring certification include permits issued by the United States
      Army Corps of Engineers under Section 404 of the Clean Water Act, 33
      U.S.C. 1344 and licenses issued by the Federal Energy Regulatory
      Commission under the Federal Power Act, 26  U,S.C. 1791 et seq.3S

      Because West Virginia has been authorized to administer the NPDES permitting
program under Section 402 of the Clean Water Act, applicants for NPDES permits do
not have to apply for water quality certification separately.  In addition,  West Virginia
has not  specifically designated Rivers and Harbors Act permits in the above  regulation.
However, because the regulation States that such permits  or licenses include Section


 404 and FERC licenses, those and all other permits.not specifically designated but
 which may result in a discharge to the waters would be covered by the regulation's
 language.  The better approach would be to enumerate all such licenses and permits
 that are known to the State and include a phrase for all others generically.

              2.  Scope of Review Under Section 401

       An additional issue is the scope of the States' review under Section 401.
 Congress intended for the States to -use the  water quality certification process to ensure
 that no federal license' or permits would be  issued that would violate State standards or
 become a  source of pollution in the future.   Also, because the States' certification of a
 construction permit or license also operates  as certification for an operating permit
 (except for in certain instances  specified1 in Section 401(a)(3)), it is imperative, for  a
 State review to consider all potential water quality impacts of the project, both direct
 and indirect, over the life of the project.

       A second .component of  the scope of the review is when an activity requiring 401
 certification in one State (i.e. the State in which the discharge originates)  will have an
 impact on  the water quality of another State.39 The statute provides that after receiving
 notice of application from a federal permitting or licensing agency, EPA will notify any"
 States whose water quality may be affected.   Such States have the right to submit  their
 objections  and request a hearing. EPA may also submit its evaluation  and
 recommendations.  If the use of conditions cannot insure compliance with the affected
 State's water quality requirements,  the federal permitting or licensing agency shall  not
 issue such  permit or license.

       The following example of 401  certification denial by the Pennsylvania
 Department of Environmental Resources (DER) for a proposed FERC hydroelectric
 project illustrates the breadth of the scope of review under Section 401 (see Appendix
 C for full description of project and impacts addressed).  The City of Harrisburg,
 Pennsylvania proposed to construct a hydroelectric power project on the Susquehanna
 River.  The Pennsylvania DER  considered a full range of potential impacts on the
 aquatic system in its review.  The impacts included those on State waters located at the
 dam site, as well as those downstream and upstream from the site.  The impacts
 considered were not just from the discharge  initiating the certification review, but water
 quality impacts from the entire project.  Thus, potential  impacts such as flooding,
 changes in  dissolved oxygen, loss of wetlands, and changes in  groundwater, both from
 construction and future operation of the project, were all considered in the State's
 decision.   ;  .

      The concerns expressed by the Pennsylvania Department of Environmental
Resources  are not necessarily all those that a State should consider in a dam


certification review; each project will have its own specific impacts and potential water
quality problems.  The point of the illustration is to show that all of the potential
effects of a proposed activity on water quality -- direct and  indirect, short and long
term, upstream and downstream, construction and operation -- should be part of a
State's certification review.
       B.    Conditioning 401 Certifications for Wetland Protection

       In 401(d), the Congress has given the States the authority to  place any conditions
on a water quality certification that are necessary to assure that the applicant will
comply with effluent limitations, water quality standards, standards of performance or
pretreatment standards; with any State law provisions or regulations more stringent than
those sections; and with "any other appropriate requirement of State law."

       The legislative history of the subsection indicates that the Congress meant for the
States to impose whatever conditions  on the certification are necessary to ensure that
an applicant complies with all  State requirements that are related to water quality
             1.     What are Appropriate Conditions?

       There are any number of possible conditions that could be placed on a
certification that have as  their  purpose preventing water quality deterioration.

       By way of example, the State of Maryland issued a certification with conditions
for placement of fill to construct a 35-foot earthen dam located 200 feet downstream of
an existing dam. Maryland used some general conditions applicable to many of the
proposed projects it considers, along with specific conditions tailored to the proposed
project.  Examples of the conditions placed on this particular certification include:

       The applicant shall obtain and certify compliance with a grading and sediment
       control plan which  has been approved by the [county] Soil Conservation District.
       The approved plan  shall be available at the project site during all phases of

    -   Stormwater runoff from impervious surfaces shall be controlled to prevent the
       washing of debris into the waterway. The natural vegetation shall be maintained
       and restored when disturbed or eroded.  Stormwater drainage facilities shall be
       designed,  implemented, operated, and maintained in accordance with the
       requirements of the applicable approving authority.

       Tfie applicant is required to provide a mixing tower release structure to achieve in-
       stream compliance with Class III trout temperature (20[degreesJ  C) and dissolved
       oxygen (5.0 mglliter) standards prior to. the Piney Run/Church Creek confluence.
       The design of this structure shall be approved by the Maryland Department of the
       Environment (MDE).

       The applicant is-required to provide a watershed management plan to minimize
       pollutant loadings into the reservoir.  This plan shall be reviewed and approved by
       MDE prior to operation of the new dam facility. In conjunction with this plan's
       development any  sources of pollutant loading identified during field surveys shall be
       eliminated or minimized to the extent possible given available technology.

       The applicant is required to provide to MDE an operating and maintenance plan for
       the dam assuring minimum downstream flows in accordance with the requirements
       of the DNR and assuring removal of accumulated  sediments with subsequent
       approved disposal of the materials removed.

       The applicant is to provide mitigation for the  wetlands lost as a result of the
       construction of this project and its subsequent operation.  Wetland recreation should
       be located in the  newly created headwaters areas to: a) assure adequate filtration of
       runoff prior  to its entry into the reservoir and b) replace the aquatic resource being
       lost on an acre for acre basis.

       See  Appendix D for  ; le full list  of conditions placed  on this certification.  While
few of these conditions  are  based directly on traditional water quality standards, all are
valid  and relate to the maintenance of water quality or the designated use of the waters
in some  way. Some of the conditions are clearly requirements of State or local law
related to water  quality other than  those promulgated pursuant to the CWA  sections
enumerated in Section 401(a)(l). Other conditions were designed to  minimize the
project's adverse effects on water quality over the life of the project.           !

       In addition,  Appendix D contains a list of conditions which West Virginia and
Alaska placed on the certification of some Section 404 nationwide permits. Many of
the West Virginia conditions are typical of ones it uses  on individual proposals as well.
For any  particular  project, West Virginia will include more specific conditions designed
to address the potential adverse effects  of the project in addition to those enumerated
in Appendix D.  The conditions from Alaska are used on a nationwide permit (#26)
regarding isolated waters and waters above headwaters.  These conditions are discussed
in Section V. C(l).

             2.     The Role of Mitigation in Conditioning Certification

      Many States are trying to determine the role that mitigation should play in 401
certification decisions.  We cannot answer this question definitively for each State, but
offer as a guide EPA's general framework for mitigation under the Section 404(b)(l)
Guidelines used to evaluate applications for Section 404 permits.  In assuring
compliance of a project with the Guidelines, EPA's approach is to first, consider
avoidance of adverse impacts, next, determine ways to minimize the impacts, and
finally, require appropriate and practicable compensation for unavoidable impacts.

      The Guidelines provide for avoiding adverse impacts by selecting the least
environmentally damaging practicable alternative.  In addition, wetlands are "special
aquatic sites." For such sites, if the proposed activity is not "water dependent,"
practicable alternatives with less adverse environmental impacts are presumed to be
available unless  the applicant clearly demonstrates otherwise.40

      The Guidelines also require an applicant to  take "appropriate and practicable"
steps to minimize  the impacts of the least environmentally damaging alternative
selected.41  Examples in the Guidelines for minimizing impacts through project
modifications and  best management practices are provided in Appendix E.

      After these two steps  are complete, 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 functionally equivalent  to the values which are lost.
Finally, compensating with the same type of wetland lost is preferred to using another
wetland type.

      The States  may choose to adopt mitigation policies which require additional.
replacement to help account for the uncertainty in  the science of wetland  creation ;and
restoration. What  is important from EPA's perspective is that mitigation not be used as
a trade-off for avoidable losses of wetlands, and that mitigation  compensate, to the
fullest extent possible, for the functional values provided to the  local ecosystem by the
wetlands unavoidably lost by the project.           .
             3.     The Role of Other State Laws

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


 preservation.  The courts that have touched on the issue have also indicated that
 conditions that relate in any way to water quality maintenance are appropriate:  Each
 State will have to make these determinations for itself, of course; there are any number
 of State and local programs that have components related to water quality preservation
 and enhancement.

       One issue that has arisen in two court cases is whether a State may use State
 law requirements, other than those that are more stringent than the  provisions of
 Sections 301, 302, 303,  306 and 307 of the CWA(401(a)(l)), to deny water quality
 certification.  An Oregon State court has ruled  that a State may, and indeed must,
 include conditions on certifications reflecting 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 court said,  "would it
 not be an 'other appropriate  requirement of State law."'42 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 ensure compliance with  such  State

       This State court decision struck down a State agency's denial  of certification
 because  it was based on the applicant's failure to certify  compliance  with  a county's
 comprehensive plan and land use  ordinances.  The court held that such "other
 appropriate requirement[s]  of State law" could not be the basis for denying certification.
 However, the court held that the agency should  determine which of the provisions of
 the land use ordinances had any relation to  the maintenance and preservation of water
 quality.  Any such provisions, the court said, could and should be the basis for
 conditions placed on a  certification.

       Another State court, however, this one in West Virginia, has upheld the State's
denial of certification on the basis of State law requirements unrelated to  the
implementation  of the CWA provisions enumerated in Section 401(a)(l).43  The court
simply issued an order  upholding the State's denial, however, and did not  write an
opinion on the subject.   The questions raised by these two opinions are thorny.  If
States may not deny certification based on State law requirements other than those
implementing the CWA, yet want  to address related requirements of State law, they
must walk a thin line between their State requirements and the limitations of their
certification authority under federal law.

       One way to avoid these difficulties and to ensure that 401 certification may
properly be used to deny certification  where the State has determined that the activity
cannot be conditioned in such a way as to ensure compliance with State water quality
related requirements, is to adopt water quality standards  that include all State
provisions related to water quality preservation.  Congress has given  the States great
latitude to adopt water  quality standards that take  into consideration the waters' use  for


such things as "the propagation of fish and wildlife, recreational purposes, and . . . other
purposes."44  Because of the broad authority granted by the Congress to the States to
adopt water quality standards pursuant to Section 303 of the CWA, and because
compliance with Section 303 is clearly one of the bases on which a State can deny
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 certification review.

       For examples the State of Washington has included State water right permit flow
requirements in its conditions for certification of a dam project.  This is one means of
helping to ensure  that hydrological changes do not adversely affect the  quality of a
waterbody.  However, a more direct approach is to include a narrative  criterion in the
State's water quality standards that requires maintenance  of base flow necessary to
protect the wetland's (or other waterbody's) living resources. The State of Kentucky has
such a criterion in its water quality standards (see previous section IV.  D(l) on "Using
Narrative Criteria").  Placing the provision directly in the  State standards might better
serve the State if a certification is challenged because the requirement would be an
explicit consideration of 401 certification.
       C.    Special Considerations for Review of Section 404 Permits: Nationwide and
             After-the-Fact Permits

             1. Nationwide Permits.

       Pursuant to Section 404(e) of the CWA, the Corps may issue general permits,
after providing notice and an opportunity for a hearing, on a State, regional or
nationwide basis for any category of activities involving discharges of dredged or fill
material, where such activities are similar in nature and will cause only minimal adverse
environmental  effects both individually and cumulatively.  These permits may remain in
effect for 5 years, after which they must be reissued with notice and an opportunity for
a hearing.  If the  activities authorized by general permits may result in a discharge, the
permits are subject to the State water quality certification requirement when they are
first proposed and when proposed for reissuance.  States may either grant certification
with appropriate conditions or deny certification of these permits.

       Under the  Corps' regulations, if a State has denied certification of any particular
general permit, any person proposing to do work pursuant to such a permit must first
obtain State water quality certification.  If a State has conditioned the grant of
certification upon some requirement of State review prior to the activity's commencing,
such condition^] must be satisfied before work can begin.

       Some States have reported that for general permits for which they have denied
 water quality certification or on which they have imposed some condition of review,
 they are having difficulties ensuring that parties performing activities pursuant to these
 permits are applying to the State for water quality certification or otherwise fulfilling
 the conditions placed on the certification prior to the commencement of work under
 these permits.

       At least one State  is grappling with the problem through its 401 certification
 implementing regulations.  The State of West Virginia denied certification for some
 nationwide permits issued by the Corps and conditioned the granting of certification for
 others.  One of the conditions that West Virginia has imposed on those certifications
 that it granted (which thus apply to all nationwide permits in the State) is compliance
 with its  401 certification implementing regulations. The regulations in turn require that
 any person authorized to  conduct 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 qualified newspaper in the county where the activity is proposed to
 take place.  The notice must describe the activity, advise the public of the scope of the
 conditionally granted certification, the public's right to comment on the proposed
 activity and  its right to request a hearing.  The applicant must forward a certificate of
 publication of this notice to the State agency prior to  conducting any such activity.45

       The regulation further provides that  any person whose property, interest in
 property or  "other constitutionally protected interest under [the West Virginia
 Constitution] [is] directly affected by the Department's certification" may  request a
 hearing  within 15 days of  the publication of the notice given by the applicant. The
 agency will then  decide whether to  "uphold, modify or withdraw certification for the
 individual activity."

       West Virginia program officers have  described the reasons for this  procedure:

       Because of a long-standing concern ... that untracked dredge and fill      \
       activities could prove disastrous on both individual and cumulative bases, the
       regulations require an authorized permittee [under federal law] to forward
       proof of publication and a copy of the newspaper advertisement. The
       information on the notice is logged into a computer system and a site specific
       inspection  sheet is generated.  Inspectors then may visit the site to determine
       compliance with permit conditions and to evaluate cumulative impacts.46

       Without such notice and a tracking system of activities performed under these
permits,  such as that adopted by West Virginia, it will be difficult for a State to
evaluate whether or not to grant or deny water quality certification for these permits
when they come up for reissuance 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


the States, regardless of whether they have granted or denied certification, to adopt as
part of their 401 certification implementing regulations, provisions addressing these
concerns for general permits.

       Another way in which some States are attempting to minimize the potential
environmental impact of nationwide  permits  is by stringently conditioning their
certification.  Alaska, for instance, placed conditions on nationwide permit 26 regarding
isolated waters and waters above the headwaters. One of the conditions Alaska used
excludes isolated or headwater wetlands of known or suspected high value.  When there
is uncertainty about a particular wetland, the Corps is required to send pre-discharge
notification to designated State officials for a determination.  (See Appendix D for a
full description of conditions on nationwide permit 26).
       2. Section 404 After-the-Fact Permits

       The Corps of Engineers' regulations  implementing Section 404 provide for the
acceptance of after-the-fact permit applications for unauthorized discharges except
under certain circumstances.  Several States have expressed concern with after-the-fact
permits, including the belief that once the discharges have taken place, the water
quality certification process is moot.   Because of that belief, many States report that
they waive certification for after-the-fact permits.  Such an approach frustrates law
enforcement efforts generally and the water quality certification process in particular
because it encourages illegal activity.

       The evaluation of after-the-fact permit applications should be no different than
for normal applications.  Because the burden should be on  the applicant to show
compliance with water quality standards and other CWA  requirements, rather than
waiving certification, States could deny certification if the applicant cannot show from
baseline data prior to its activity that the activity did not violate water quality standards.
If data exist  to determine compliance with water quality standards, the States' analysis
should be no different merely because the work has already been partially performed or
completed.  Arkansas denied after-the-fact wa;ter quality certification of a  wetland fill as

       [a certain slough] is currently classified as a warmwater .fishery ....  ..
       Draining and clearing of [its associated] wetlands will significantly alter the
       existing use by drastically reducing or eliminating the fishery habitat and
       spawning areas.  This physical alteration of the lake  will prevent it from being
       "water which is suitable for the propagation of indigenous warmwater species
       offish" which is the definition of a warmwater fishery.   Thus,  the . . . project
       [violates] Section 3 (A) of the Arkansas Water Quality Standards, "Existing
       instream water uses and the level of water quality necessary to protect the

                                         29                                :

       existing uses shall be maintained and protected." The Department         ;
       recommends the area be restored to as near original contours as possible.

       With after-the-fact permits, just as with any other permit application, if the State
denies certification, the Corps is prohibited from granting  a permit.  If the applicant
refuses to restore the area and  does not have a permit, the applicant is subject to a
potential enforcement action for restoration and substantial penalties for the
unpermitted discharge of pollutants by the EPA, the Corps, a citizen under the citizen
suit provision of the CWA, or by the State, if the activity violates a prohibition of State
law. _

       If the State determines that it will get a better environmental result by
conditioning certification, it may choose to take that approach.  The condition might
require mitigation for the filled  area (where restoration may cause more environmental
harm than benefit, for instance) with restoration or creation of a  potentially more
valuable wetland area.,

       In any event, a State should not waive certification  of an after-the-fact permit
application simply because it is  after-the-fact.

       A comprehensive set of 401 certification implementing regulations would have
both procedural and substantive provisions which maximize the State agency's control
over the process and which make its decisions defensible in court.  The very  fact  of
having 401 certification regulations goes a long way in providing the State agency that
implements 401 certification with credibility in the courts. Currently, no State has "ideal"
401 certification implementing regulations, and many do not have them at all. When
401 certification regulations are carefully considered, they can be very effective not only
in conserving the quality of the State's waters, but in providing  the regulated  sectors
with some predictability of State actions, and in minimizing the State's  financial and
human resource requirements as well.

       Everything in this handbook relates in some way to the development of sound
water quality standards and 401 certification implementing regulations that will enhance
wetland protection.  This section addresses some very basic procedural considerations of
401 certification implementing regulations which have not been treated elsewhere.
These  include provisions concerning the contents of an application for  certification;  the
agency's timeframe for review; and the requirements placed on the applicant in the
certification process.


       A.     Review Timeframe and "Complete" Applications

       Under Section 401(a)(l) a State will be deemed to have waived certification if it
 fails to act within "a reasonable period of time (which shall not exceed one year) after
 receipt of such request."  Program managers should keep in mind that the federal
 permitting or license agency may have regulations  of its own  which provide a time limit
 for the State's certification decision.  For instance, Corps regulations say that a waiver
 "will be deemed  to occur if the certifying agency fails  or  refuses to act on a request for
 certification within sixty days after receipt . . . unless the district engineer determines a
 shorter or longer period is reasonable . . . ,"47  FERC rules state that a certifying
 agency "is deemed to have waived the certification requirements if ... [it] has not
 denied or granted certification by one year after the date the certifying agency received
 the request".48 EPA regulations for Section 402  in non-authorized States set a limit of
 60 days unless the Regional Administrator finds that unusual  circumstances require a
 longer time.49

       States should coordinate closely with the appropriate federal agency on timing
 issues.  For example, Alaska negotiated joint EPA/State procedures for coastal NPDES
 permit review. The agreement takes into account  and coordinates EPA, Coastal Zone
 Management, and 401 certification time frames.

       It is also advisable for the  States to adopt rules which  reasonably protect  against
 an unintended waiver due, for  example, to insufficient information to make a
 certification decision or because project plans have changed enough to warrant a
 reevaluation of the impacts on water quality.  Thus, after taking the federal agencies'
 regulations into account, the State's 401  certification regulations should link the timing
 for review to what is considered receipt of a complete application.

       Wisconsin, for instance,  requires the applicant to submit a complete application
 for certification before the official agency review time begins.  The State's regulations
 define the major  components of a complete application, including the existing physical
 environment at the site, the size of the area affected,  all  environmental impact
 assessment information provided to the licensing or permitting agency, and the like.
The rules State that the agency will review the application for completeness within 30
days of its receipt and notify the applicant of any additional materials reasonably
necessary for review.  Although the application will be deemed "complete"  for purposes
of review time if  the agency does  not request additional materials within 40 days of
receipt of the  application, the agency reserves the right to request additional
information during the review process.50

with regard to time for review:

       If the project application is altered or modified during the FERC licensing
       process prior to FERC's final decision,  the applicant shall inform the
       Department of such changes, Tfie Department may review such alterations or
       modifications and, if the changes are deemed significant by the Director, the
       Department may require a new application for certification.  The Department
       will have ninety (90) days to review such changes or until the end of the year
       review period . . . , whichever is longer, to determine whether to require a
       new application or to  alter its original certification decision.  If the
       department requires a  new application because of a significant application
       modification, then the Department will have six (6) months to issue its
       certification decision from the date of submission of the application.51
       B.    Requirements for the Applicant

       It is very important, in' particular for conserving the agency's resources and
ensuring that there is sufficient information to determine that water quality standards
and other provisions of the CWA will not be violated by the activity, to clarify that it is
the applicant who is  responsible for providing or proving particular facts or
requirements.              .

       For instance, Section 401(a)(l) requires that a State "establish procedures for
public notice in the case  of all applications  for certification."  West Virginia requires
applicants for FERC licenses to be responsible for this notice.  In the case of Section
404 permits, West Virginia has a joint notice process with the Corps to  issue public
notices for 404 applications which also notify the public of the State certification
process.  Thus, there is no need for West Virginia to require the applicant to do so for
these permits.52                                                                ;

       A second consideration is that States should require the  applicant to demonstrate
the project's compliance with applicable federal and State law and regulation.  EPA's
401 certification regulations name: the sources of information a  State should use as that
contained in 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 violated.53 Of course  in addition,  the regulations also refer to other  information the
agency may choose to examine which is not furnished by the applicant.

       Ohio, for instance, has written a requirement for the applicant to demonstrate
compliance into its 401 certification implementing regulations:

       (A) The director shall not issue a Section 401 water quality certification
       unless he determines that the applicant has demonstrated that the discharge
       of dredged or fill material to  waters of the state or the creation of any
       obstruction or alteration in waters of the  state will:54 (1) Not prevent or
       interfere with the attainment or maintenance of applicable water quality
       standards; (2) Not result in a violation of any applicable provision of the
       following sections of the Federal Water Pollution Control Act [301, 302, 303,
       306 and 307].

       (B) Notwithstanding ah applicant's demonstration of the criteria in paragraph
       (A) . .  .  the director may deny an application for a Section 401 water quality
       certification if the director concludes that the discharge of dredged or fill
       material or obstructions or alterations in  waters of the state will result in
       adverse long or short term impact on water quality.55
       C.     Permit Fees

       A very significant concern for all States who plan to initiate or expand their 401
certification program is the availability of funding.   Application fee requirements are a
potential funding source to supplement State program budgets.  The State of
California's Regional Water Quality Control Boards require filing fees for 401
certification applications unless a Board determines that certification is not required.
The fee structure is spelled out  in the California Water Code.  The money collected
from the fees goes into the State agency's general  fund.  The Regional Boards may
recover some portion of the fees through the budget request process.-  The State of
Ohio also has a fee structure for 401 certification applicants. In Ohio, however, fees go
into the State's general fund, rather than  back into the State agency.  Neither State
collects fees sufficient to support the 401  certification program  fully. Despite, these
potential barriers, application fees could provide a much needed funding source which
States should explore.
       D.    Basis for Certification Decisions

       The regulations should also set out the grounds on which the decision to grant or
deny certification will be based, the scope of the State's review, and the bases for «
conditioning a certification.  If a State has denied water quality certification for  a
general permit or has conditioned such  a permit on some requirement of State  review,
the State's 401 certification implementing regulations might also outline the obligations


 of a person proposing to accomplish work under such a permit.  The following is a
 hypothetical example of regulatory language a State might use to define the grounds for
 the State's  decision to grant, 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 demonstrate  that
       the entire activity over its lifetime will 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
      , provisions of state law or regulation adopted pursuant to, or which are more
       stringent than, those provisions of the Clean Water Act.

       The agency may  condition certification on any requirements  consistent with
       ensuring the applicant's compliance with the provisions listed above,  or with
      'any other requirements of state law related to the maintenance, preservation,
       or enhancement of water quality.
This sample regulatory language provides the grounds for the certification decision, sets
the scope of review (lifetime effects of the entire activity) and clearly States that the
applicant must demonstrate compliance.  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 standards employed by  the agency in the
certification process. (A State may choose to adopt license/permit-specific regulations
for 401 certification, 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 whicn have been mentioned in other parts  of  this
handbook.  These include provisions  which require applicants for federal licenses and
permits which may result in a discharge to apply for water quality certification; ;
provisions which define waters of the State to include wetlands and which define  other
pertinent terms; and provisions  addressing general permits.


      According to a number of State program managers, more data on wetland
functions, or "uses," would greatly assist the certification process. Wetland ecosystems
not only perform a wide variety of functions but do so in varying degrees.  Public
agencies and private applicants currently employ a number of assessment methods such
as the Wetlands Evaluation Technique and the Habitat Evaluation Procedure to
determine what functions or uses exist in a particular wetland system.56  In many States,
however, water quality certification  reviewers lack the resources to perform even a
simple assessment of a wetland's boundaries, values and functions.  Information about
the location and types of wetland systems,  and of the functions they may perform (such
as flood storage, habitat, pollution attenuation, nutrient uptake,  and sediment fixing)
would aid standard writers in developing appropriate uses and criteria for wetlands, and
allow 401 certification officials to conduct a more thorough review.

      Several States already have extensive knowledge of their  wetland  resources, and
data gathering efforts are also being undertaken by EPA, the U.S. Fish and Wildlife
Service  and other agencies.57  Although these efforts  to inventory and classify wetlands
have not been closely tied to the 401 certification process in  the past, these existing
data can be valuable sources of information for 401  certification reviewers.  It is
important to remember, however, that wetland boundaries for regulatory purposes may
differ from those identified  by National Wetland Inventory maps for general inventory
purposes. The EPA, Corps of Engineers, Fish and Wildlife Service, and Soil
Conservation Service have  adopted a joint manual for identifying and delineating
wetlands in  the United States.  The manual will be available in  June, 1989.58

      There are several programs that offer technical support for 401 certification
decisions. For example, approximately forty States have worked with the Nature
Conservancy to establish "natural heritage programs," which identify the  most critical
species, habitats,  plant communities, and other natural features within a  State's
territorial boundaries.  Most States now have a State natural heritage office to
coordinate this identification program. Inventory efforts such as the natural heritage
program could give 401 certification managers  some of the information they need to
limit or prohibit adverse water quality impacts  in important wetland areas.  Specifically,
the inventory process can identify existing wetland uses in order to maintain them. The
information may also be used in identifying wetlands  for Outstanding Resource Waters

      The Fish and Wildlife Service  maintains a Wetlands Values Data Base which
may be very useful in identifying wetland functions and in designating wetland uses for
water quality standards.  The data base is on computer and contains an  annotated
bibliography of scientific literature on wetland functions and values.60 Several States


 have established critical area programs to identify and protect unique and highly
 sensitive land and water resources.  These programs can provide data to the State
 water quality certification office and thereby strengthen  the scientific basis for 401
 certification decision making.61

       Another potential source of information which might identify wetlands
 appropriate for designation as Outstanding Resource Waters are the wetland plans
 which each State is  required to develop to comply with  the 1986 Emergency Wetlands
 Resources Act. Beginning in fiscal year 1988, Statewide Comprehensive Outdoor
 Recreation Plans (SCORP) must now contain a Wetlands Priority Conservation Plan
 approved by the Department, of Interior. Although these plans are primarily focused
 on wetlands for acquisition, they are a potential source of data on  wetland locations
 and functions.  The wetlands  identified may also be suitable for special protection under
 the Outstanding Resource Waters provisions of the  antidegradation policy.

       The  Advance Identification program (ADID), conducted by  EPA and the
 permitting authority, may also furnish  a considerable amount of useful information.
 EPA's 404(b)(l) 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 has made greater use of this authority.  ADID is often  used in
 wetland  areas that are experiencing significant development or other conversion
 pressures.  Many ADID efforts generate substantial  data on the location and functions
 of wetlands within the study area such as wetland maps, and habitat, water quality, or
 hydrological studies.

       Special Area  Management Plans (SAMPs) are another planning process which
 may yield useful information.  SAMPs refer to a process authorized by the 1980
 amendments to the  Coastal Zone Management Improvement Act, which provides grants
 to States to develop comprehensive  plans for  natural resource  protection and
 "reasonable coastal-dependent economic growth."63 The SAMP process implicitly
 recognizes the State water quality certification process, directing all relevant local, State,
 and federal authorities to coordinate permit programs in carrying out the completed
 SAMP.  The Corps  of Engineers has supported and initiated several of these processes.
 In addition, other SAMPs have been completed by several States.

       Much of these data can be collected, combined, and used in decision making
with the  aid of geographic-based computer systems that can store, analyze, and present
 data related to wetlands in graphic  and written forms.64  A reviewing official can quickly
 access and overlay a range of different existing information bases such as flora and
fauna inventories, soil surveys, remote  sensing data, watershed and wetland maps,
existing uses and criteria, and  project proposal information.

       Finally, data is presently emerging on the use of wetlands as treatment areas for
wastewater, stormwater, and non-point discharges.65  Florida, for instance, has adopted
a rule on wastewater releases into wetlands.66  Florida prohibits wastewater discharges
into the following kinds of wetlands: those designated as outstanding waters of the
State; wetlands within potable water supplies; shellfish propagation or harvesting waters;
wetlands in a'reas of critical State concern; wetlands where herbaceous ground cover
constitutes more than thirty percent of the uppermost stratum (unless seventy-five
percent is cattail); and others.  Wastewater discharges are permitted in certain wetlands
dominated by woody vegetation, certain  hydrologically altered wetlands, and artificially
created wetlands; however, the State applies special effluent limitations to take account
of a wetland's ability to assimilate nitrogen and phosphorus. It also applies qualitative67
and quantitative68 design criteria.

       The rule establishes four "wetland biological quality" standards.  First,  the flora
and fauna of the wetland cannot be changed so as to impair the wetland's ability to
function in the propagation and maintenance of fish and wildlife populations  or
substantially reduce its effectiveness in wastewater treatment. Second, the Shannon-
Weaver diversity  index of benthic macroinvertebrates cannot be reduced  below fifty
percent of background levels.  Third, fish populations must be monitored and
maintained, and an annual survey of each species must be conducted.  Fourth, the
"importance value" of any  dominant plant species in the canopy and subcanopy at any
monitoring station cannot be reduced by more than fifty percent,  and the average
"importance value" of any  dominant plant species cannot be reduced by more than
twenty-five percent.69

       These types of efforts, constantly  being adjusted to take account of new
information in a field where knowledge is rapidly expanding, are fertile sources of
information for wetland standard writers and 401 certification decision makers.

       This handbook has only scratched the surface of issues surrounding effective use
of 401 certification to protect wetlands.  The preceding discussion and examples from
active States have highlighted possible approaches for all States to incorporate into their
401 certification programs.  The handbook shows that there are many things that a
State can act on right away to. improve the effectiveness of 401 certification to protect
the integrity of its wetlands.  At the same  time, there are improvements to water quality
standards for wetlands which will have to take place within a longer timeframe.

       A.     Steps States Can Take Right Away
       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 approaches.

       States should make more effective use of their existing narrative water quality
       standards (including the antidegradation policy)  to protect wetlands.

       States should initiate or improve upon existing inventories of their wetland

       States should designate uses for their wetlands based on estimates of wetland
       functions typically associated with given wetland types. Such potential uses
       could be verified for individual applications with an assessment tool such as
       the Wetlands Evaluation Technique or Habitat Evaluation Procedure.

       States should tap into the potential of the outstanding resource waters tier of
       the antidegradation policy for wetlands.  It may not be an appropriate
       designation for all of a  state's wetlands, but it can provide excellent
       protection to particularly valuable or ecologically sensitive wetlands from both
       physical and chemical degradation.

       States should incorporate wetlands and 401 certification into their other water
       quality management processes.  Integrating this tool with other mechanisms
       such as  coastal zone management programs, point and nonpoint source
       programs, and water quality management plans will help fill the gaps of each
       individual tool and allow better protection of wetlands systems from the
       whole host of physical, chemical,  and biological impacts.
      Time and the courts may be needed to resolve some of the more complicated
and contentious issues surrounding 401 certification such as which federal permits and
licenses require 401 certification.  EPA intends to support States in resolving such

       OWP, in cooperation with the Office of Water Regulations and Standards
 (OWRS), will build on this 401 certification handbook by developing guidance in FY
 89-90 on water quality standards for wetlands.  The guidance will provide the
 framework for States to incorporate wetlands into their water quality standards.  The
 guidance will: require States to include wetlands as "waters of the State;" provide
 methods to designate wetland  uses that recognize differences in wetland types and
 functions; address some chemical-specific and narrative  biological criteria for wetlands;
 and discuss implementation of State antidegradation  policies.

       B:    Laying the Groundwork for Future Decisions

       Many States  are successfully applying their existing narrative and, 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 alkalinity of certain fens.  Also, many
 existing criteria focus too extensively on the chemical quality of the water column
 without adequately protecting the other physical and biological components which are
 an integral part of wetland aquatic systems.  Some numeric  criteria for chemicals may
 not be protective enough of species (particularly bird species) which feed, breed, and/or
 spend a  portion of their life  cycle in wetlands.  Hydrological changes can have severe
 impacts on wetland  quality, but these changes are rarely addressed  in traditional water
 quality standards.

       Research of interest to State programs is being sponsored by the  Wetlands
 Research Program of EPA's Office of Research and  Development (ORD).  Research
 covers three areas:  Cumulative Effects, Water  Quality,  and Mitigation.   Although these
 efforts will be developed over several years, interim products will be distributed  to the
 States.  States may find these products of use when developing criteria and standards,
when identifying  and designating wetlands as outstanding resource waters, and when
making 401 certification decisions.
Cumulative Effects:

       EPA's research on cumulative effects of wetlands takes a regional perspective.
Through a series of regional pilot studies involving landscape analyses, ORD is
correlating water quality conditions at the outlets of major watersheds with the
percentage of wetlands in these watersheds. The types of wetlands, their position, and


                                            .....  	   	 	 _A	J
managers in these regions to specify the optimal percentage and combination of various
types of wetlands 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 runoff.

       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 cumulative effects program is using the results of the pilot studies as
technical support for developing a "Synoptic Assessment Method".  This method has
already been used to rank watersheds within certain regions, according  to the likely
cumulative benefits of their wetlands.  Also, sources of  information useful for   ;
designating uses of individual wetlands were described by ORD  in EPA's draft guidance
for Advance Identification Appendix D.70  Information  on regionally rare or  declining
wetland wildlife, which could be used as one basis for establishing "special aquatic
areas" in selected wetlands, is also available from the ORD Wetlands Research Team
at the Corvallis EPA Lab.
Water Quality:

       Another ORD study, being implemented through the Duluth Lab, is examining
impacts to the water quality and biota of 30 wetlands, before  and after regional •
development.  This study will  be useful, as part of 401 certification, for developing
performance standards for activities which may affect wetland water quality.

       Several research projects being proposed by the Wetland Research  Program
could produce information very useful to  water quality managers.  These are described
in ORD's publication, "Wetlands and Water Quality:  A Research and Monitoring
Implementation Plan for the Years 1989-1994".  Many of these proposals are planned,
but will hinge upon funding decisions in future budget years.  Those which drew the
most support from a 1988  EPA workshop of scientists and State program  administrators
were as follows:

o      Water Quality Criteria to Protect Wetland Function. Existing quality criteria for
       surface waters would be reviewed for applicability to wetlands.  Methods for
       biological and chemical monitoring of wetlands would be refined, and a field
       manual produced.                    >                              .   ;  ,

o     Ecological Status and Trends of the Wetland Resource.  A nationwide network
      would be established to monitor the wetland resource.  Field surveys would
      define the expected range of numerical values within each region for particular
      chemicals and especially, for biological community metrics, across a gradient of
      sites ranging from nearly-pristine to severely disturbed.

o     Waste Assimilative Limits of Wetlands.  Observable features which .determine
      the long-term ability of wetlands to retain contaminants and  nutrients would be
      tested. "Safe" loading  limits for various substances would be proposed for
      specific wetland types or regions.  Similar kinds of information would also
      become available from a research effort focused specifically on artificial wetlands
      and coordinated by EPA-Cincinnati, in cooperation with the  Corvallis and Duluth
      Labs.  That study would recommend engineering design factors essential in
      wetlands constructed by municipalities for tertiary wastewater treatment.

       Information useful to 401 certification will also originate from ORD'S mitigation
research.  This research aims to determine if created and restored wetlands replace
functions  lost by wetland destruction permitted under Section 404.  The research is
organized to (1) synthesize current knowledge on wetland creation and restoration, (2)
compile 404 permit information on created and restored wetlands, and (3) compare
created and naturally occurring wetlands.  Research results will be incorporated into  a
"Mitigation Handbook" useful for designing and evaluating mitigation projects. A
literature  synthesis being developed as a Provisional Guidance Document will be
available in 1989.   A provisional version of the handbook will be produced in 1990.
This will assist States in identifying areas at greatest risk due to 404 permit activities
and thus help target 401 certification and  water quality standards activities.

                               APPENDIX A
      Provided below are State 401 certifictation contacts and EPA wetlands contacts
who can provide assistance in applying 401 to wetlands.

      EPA has asked the Council of State Governments (CSG) to maintain a database
of State wetland contacts and programs.  In order to help keep the database up 'to
date, please contact CSG when you have changes in your program or staff contacts, or
if you come across inaccuracies in other State programs.  You can access this database
using virtually any computer with a modem. In order to obtain your free username
and password contact:
            The Council of State Governments
            P.O. Box 11910, Iron Works Pike
            Lexington, Kentucky 40578
            phone: (606) 252-2291

EPA Headquarters;
Dianne Fish
Wetlands Strategies Team
Environmental Protection Agency
401 M Street, SW
Washington, D.C.  20460
Phone: (202) 382-7071
Jeanne Melanson               ;
Outreach and State Programs Staff
(A-104F)                      j
Environmental Protection Agency,
401 M Street, SW             '!
Washington, D.C.  20460        !
Phone: (202) 475-6745          1
EPA Region Contacts:

EPA Region I
Doug Thompson, Chief
Wetlands Protection Section (WPP-
John F. Kennedy Federal Building
Boston, Massachusetts 02203
(617)  565-4421
EPA Region II                 i
Mario del Vicario, Chief
Marine/Wetlands Prot. Branch (2WM-
26 Federal Plaza
New York, New York 10278
(212) 264-5170

EPA Region III
Barbara De Angelo, Chief
Marine & Wetlands Policy Sect. (3ES42)
841 Chestnut Street
Philadelphia, Pennsylvania 19107
(215) 597-1181

EPA Region IV
Tom Welborn, Acting Chief
Wetlands Section (4WM-MEB)
345 Courtland Street, N.E.
Atlanta, Georgia 30365
(404) 347-2126

EPA Region V
Doug Ehorn, Deputy Chief
Water Quality Branch (5WQ-TUB8)
230 South Dearborn Street
Chicago, Illinois  60604
(312) 886-0139

EPA Region VI
Jerry Saunders, Chief
Technical Assistance  Sect. (6E-FT)
1445 Ross Avenue
12th Floor, Suite 1200
Dallas, Texas 75202
(214) 655-2260

EPA Region VII
B. Katherine Biggs, Chief
Environmental Review Branch (ENVR)
726 Minnesota Avenue
Kansas City, Kansas  66101
(913) 236-2823
Gene Reetz, Chief
Water Quality Requirements Sect.
One Denver Place
Suite  1300
999 18th Street
Denver, Colorado  80202
(303) 293-1568

EPA Region IX
Phil Oshida, Chief
Wetlands Section (W-7)
215 Fremont Street
San Francisco, California 94105
(415) 974-7429

EPA Region X
Bill Riley, Chief
Water Resources Assessment (WD-138)
1200 Sixth Avenue
Seattle,  Washington 98101
(206) 442-1412

C.D. Robison, Jr.
Alaska Operations Office, Region X
Federal Building Room E551
701 C Street, Box 19
Anchorage, Alaska  99513

EPA Wetlands Research
Eric Preston
Environmental Research ;..ab
200 S.W. 35 Street
Corvallis, OR 97333
(503) 757-4666

Bill Sanville
Environmental Research
6201 Congdon Blvd
Duluth, MN  55804
(218) 720-5723

Brad Gane
Field Operation Division
Dept. of Enviromental Management
2204 Perimeter Road
Mobile, Alabama   36615

Walter Tatum
Field Operation Division
Dept. of Enviromental Management
2204 Perimeter Road
Mobile, Alabama   36615
(205) 968-7576

Doug Redburn
Dept. of Enviromental Conservation
3220 Hospital Drive
Juneau, Alaska 99811
(907) 465-2653

Mr. Dick Stokes
Southeast Office
Department of Environmental
P.O. Box 2420
9000 Old Glacier Highway
Juneau, Alaska  99803
(907) 789-3151

Mr. Tim Rumfelt
Southcentral Office
Department of Environmental
437 E Street, Second Floor
Anchorage, Alaska 99501
(907) 274-2533
Mr. Paul Bateman
Northern Office (Arctic)
Department of Environmental
1001 Noble Street, Suite 350
Fairbanks, Alaska 99701
(907) 452-1714

Ms. Joyce Beelman
Northern Office (Interior)
Department of Environmental
1001 Noble Street, Suite 350
Fairbanks, Alaska 99701
(907) 452-1714
Steve Drown
Dept. of Pollution Control and Ecology
8001 National Drive                 ;
Little Rock, Arkansas  72207
(501) 652-7444

Jack Hodges
State Water Resources Control Bpard
P.O. Box 100                   I
Sacramento, California  95801r0100
(916) 322-0207

Jon Scherschligt
Water Quality Control Division
4210 E. llth Avenue
Denver, Colorado 80220
(303) 320-8333

Douglas E. Cooper
Wetlands Management Section
Dept. of Env. Prot. Water Resources
Room 203, State Office Building
165 Capitol Avenue
Hartford, Connecticut   06106
(203) 566-7280

William F. Moyer
Dept. of Natural Resources 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
Legal Office
89 King's Highway
P.O. Box 1401
Dover, Delaware  19903
(302) 736-4691

Randall L. Armstrong
Division of Environmental Permitting
Dept. of Env. Regulation
2600 Blairstone Road
Tallahassee, Florida  32399
(904) 488-0130

Mike Creason
Environmental Protection Division
Dept. of Natural Resources
205 Butler Street S.E.
Floyd Towers East
Atlanta, Georgia  30334.
(404) 656-4887

James K. Ikeda
Environmental Protection & Health
Services 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 46206-6015
(317) 243-5028

Al Keller
Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois  62706
(217) 782-0610

Bruce Yurdin
Environmental Protection Agency
2200 Churchill Road
Springfield, Illinois  62706
(217) 782-0610

Jerry Yoder
Bureau of Water Quality
Division of Environmental  Quality
450 West State Street
Boise, Idaho  83720
(208) 334-5860

Ralph Turkic
Department of Natural Resources
900 East Grand Avenue
Des Moines, Iowa   50319
(515) 281-7025

Lavoy Haage
Department of Natural Resources
900 East Grand Avenue
Henry A. Wallace Office Building
Des Moines, Iowa   50319

 Larry Hess
 Dept. of Health and Environment
 Building 740
 Forbes Field
 Topeka, Kansas  66620
 (913) 862-9360

 Paul Beckley
 Division of Water
 Dept.  of Natural Resources
 Fort Boone Plaza
 Frankfort,  Kentucky 40601
 (502) 564-310, ext 495

 Dale Givens
 Water Pollution Control
 P.O. Box 44091
 Baton Rouge, Louisiana  70804
 (504) 342-6363

 Donald T.  Witherill
 Dept. of Env. Protection
 Division of Licensing
 Augusta, Maine  04333
 (207) 289-2111

 Mary Jo Carries
 Division of Standards
 Department of the Environment
 201 West Preston Street
 Baltimore,  Maryland  21201
 (301) 225-6293

Jo Ann Watson
Division of Standards
Dept. of Health and Mental Hygiene
201 West Preston Street
Baltimore, Maryland 21201
(301) 225-6293
 Ken Chrest
 Water Quality Bureau
 Cogswell Building
 Helena,  Montana 59620
 (406) 444-2406

 Bill Gaughan
 Div. of Water Pollution
 Dept. of Env. Quality Engineering
 1 Winter Street                <
 Boston, Massachusetts 02108
 (617) 292-5658

 Judy Perry                    :
 Regulatory Branch Div. of Water
 Dept. of Env.  Quality Engineering
 1 Winter Street                -
 Boston, Massachusetts  02108
 (617) 292-5655

 Les Thomas
 Land and Water Management  Div.
 Dept. of Natural Resources
 P.O. Box 30028                ;
 Lansing,  Michigan 48909
 (517) 373-9244

 Robert Seyfarth
 Bureau of Pollution Control
 Dept. of  Natural Resources
 Box 10385                     i
 Jackson,  Mississippi 39209
 (601) 961-5171

 Charles Chisolm                :
Bureau of Pollution control
Dept. of  Natural Resources    • '<•
Box 10385                     ;
Jackson, Mississippi 39209      !
(601) 961-5171                 ;

Jim Morris
Water Quality Management Section
Dept. of Natural Resources
Box 10385
Jackson, Mississippi 39209
(601)  961-5151

Louis Flynn
1935 West County Road B-2
Roseville, Minnesota 55113
(612)  296-7355

Laurie K. Collerot
Water Supply and Pollution Control
Hazen Drive
P.O. Box 95
Concord, New Hampshire   03301
(603)  271-2358

Fred Elkind
Water Supply and Pollution Control
Dept. of Env. Services
Hazen Drive
P.O. Box 95
Concord, New Hampshire  03301
(603)  271-2358

Ray Carter
Water Supply and Pollution Control
Hazen Drive
P.O. Box 95
Concord, New Hampshire  03301
(603)  271-2358

George Danskin
Div. of Regulatory Affairs  .,
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
Lincoln, Nebraska  68509-4877
(402) 471-2186

George Horzepa
Division of Water Resources
Dept. of Env. Protection,
Trenton, New Jersey 08625
(609) 633-7021

Barry Chalofsky
Division of Water Resources
Dept. of Env. Protection
CN 029
Trenton, New Jersey 08625
(609) 633-7021

Robert Piel
Div. of Coastal Resources
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  87504-0968
(505) 827-2822

 Michael T. Sauer
 State Dept. of Health
 1200 Missouri avenue
 Bismarck, North Dakota
 (701) 224-2354
 Paul Wilms
 Div. of Env. Management
 Department of Natural Resources
 and Community Development
 P.O. Box 27687
 Raleigh, North Carolina 27611
 (919) 733-7015

 Bill Mills
 Water Quality Section
 Department of Natural Resources
 P.O. Box 27687
 Raleigh, North Carolina 27611
 (919) 733-5083

 Colleen Crook
 Div. of Water Quality and
 Ohio EPA
 1800 Watermark Drive
 P.O. Box 1049
 Columbus, Ohio  43266-0149
 (614) 981-7130

Brooks Kirlin
Water Resource Board
P.O. Box 53585
Oklahoma City, Oklahoma   73152
(405) 271-2541

Glen Carter
Dept. of Env. Quality
P.O. Box 1760
Portland, Oregon  97207
(503) 229-5358
Louis W. Bercheni
Bureau of Water Quality
Dept. of Env. Resources
P.O. Box 2063
Harrisburg, Pennsylvania  17120
(717) 787-2666

Peter Slack
Bureau of Water Quality
Dept. of Env. Resources
P.O. Box 2063
Harrisburg, Pennsylvania  17120
(717) 787-2666
                   Edward S. Szymanski            '•
                   Dept. of Env. Management       |
                   Division of Water Resources      ]
                   291 Promenade Street           :
                   Providence, Rhode Island 02908-5767
                   (401) 277-3961                  i  •

                   Carolyn Weymouth              ;
                   Office of Environmental Coordination
                   Department of Environmental    ;
                   83 Park Street                  \
                   Providence, Rhode Island 02903  '•
                   (401) 277-3434                  :

                   Chester E. Sansbury             j
                   Division of Water Quality        \
                   Dept. of Health and Env. Control :
                   2600 Bull Street                 ;
                   Columbia, South Carolina 29201  l
                   (803) 758-5496                  '

                   Larry Bowers                    >
                   Div. of Water Pollution Control   |
                   Dept. of Health and Env.        i  '
                   150 Ninth North Avenue
                   Nashville, Tennessee  37203       ;
                   (615) 741-7883

Robert Sileus
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 Pagel
Agency of Natural Resources
Dept. of Environmental Conservation
103 S. Main Street
Waterbury, Vermont  05676
(802) 244-6951

Steve Syz
Agency of Natural Resources
Dept. of Env. Conservation
103 S. Main Street
Waterbury, Vermont  05676
(802) 244-6951

Jean Gregory
Office of Water Resources Management
Water Control Board
P.O. Box 11143
Richmond, Virginia  23230
(804) 367-6985

Mike Carnavale
Water Quality Division
State Dept. of Env.  Quality
Herschler Building
Cheyenne, Wyoming 82202
(307) 777-7781
Mike Palko
Dept. of Ecology
Mail Stop PV-11
Olympia, Washington  98504
(206) 459-6289

John Schmidt             :
Water Resources Division
Dept. of Natural Resources
1201 Greenbrier Street
Charleston, West Virginia  25311
(304) 348-2108

Jim Rawson
Wildlife Division
Dept. of Natural Resources
P.O. Box 67
Elkins, West Virginia  26241
(304) 636-1767

Scott Hausmann
Bureau  of Water Regulation and Zoning
Dept. of Natural Resources
P.O. Box 7921
Madison, Wisconsin 53701
(608) 266-7360


                                    APPENDIX B
                              FEDERAL DEFINITIONS

The federal definition of "waters of the United States" is (40 CFR Section 232.2 (q)):

(1)    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;
(2)    All interstate waters including interstate wetlands;
(3)    All other waters such as intrastate lakes, rivers, streams (including intermittent
       streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows,
       playa lakes, or natural ponds,  the use, degradation or destruction of which would
       or could affect interstate or foreign commerce including any such waters:

       (i)     Which are 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 or
             foreign commerce;
       (iii)   Which are used or could be used for industrial purposes by industries in
             interstate commerce;*

(4)    All impoundments of waters otherwise defined as waters of the United States
       under this definition;
(5)    Tributaries of waters identified in paragraphs 1-4.
(6)    The territorial sea;
(7)    Wetlands adjacent to waters (other than waters that are themselves wetlands)
       identified in 1-6; waste treatment systems, including treatment ponds  or lagoons
       designed to meet the requirements of CWA (other than cooling ponds as defined
       in 40 CFR §  423.11(m) which also meet criteria in this definition) are not waters
       of the United States.

  (*   Note: EPA has clarified that waters of the U.S. under the  commerce connection
       in (3) above also include, for example, waters:
             Which are or would be used as habitat by birds protected by  Migratory
             Bird Treaties or  migratory birds which cross State lines;
             Which are or would be used as habitat for endangered species;
             Used to  irrigate crops sold in  interstate commerce.)

The federal definition of "wetlands" (40 CFR § 232.2(r)). Those areas that  are
inundated or saturated by surface or ground water at a  frequency and duration
sufficient to support, and that  under  normal circumstances do support, a prevalence of
vegetation typically adapted for life in saturated soil conditions.  Wetlands generally
include swamps, marshes, bogs, and similar  areas.



                                   APPENDIX C


      The dam proposed by the City of Harrisburg was to be 3,000 feet long and 17
feet high.  The dam was to consist of 32 bottom hinged flap gates.  The-dam would
have created an impoundment with a surface area of 3,800 acres, a total storage
capacity of 35,000 acre feet, and a pool elevation of 306.5 feet.  The backwater would
have extended approximately eight miles upstream on the Susquehanna River and
approximately three miles upstream on the Conodoguinet Creek.

      The project was to be a run-of-the-river facility, using the head difference
created by the dam to create electricity.  Maximum turbine flow would have been
10,000 cfs (at a nethead of 12.5) and minimum flow would have been 2,000 cfs.  Under
normal conditions, all flows up to 40,000 cfs would have passed through the turbines.

      The public notice denying 401 certification for this project stated as  follows:

1.    The construction and operation of the project will result in the significant loss of
      wetlands  and related aquatic habitat and acreage.  More specifically:

       a.     The destruction of the wetlands will have an adverse impact on the local
             river ecosystem because of the integral role wetlands play in maintaining
             that ecosystem.

       b.     The destruction of the wetlands will cause the loss of beds of emergent
             aquatic  vegetation that serve as habitat for juvenile fish. Loss of this
             habitat will adversely affect the relative abundance of juvenile and adult
             fish (especially smallmouth bass).                                   •

       c.     The wetlands which will be lost are critical habitat for, among other
             species, the yellow crowned night heron, black crowned night heron,
             marsh wren and great egret.  In addition, the yellow crowned night heron
             is a proposed State threatened species, and the marsh wren and great
             egret are candidate species of special concern.

       d.     All affected wetlands areas are important and, to the extent that the loss
             of these wetlands can be mitigated, the applicant has failed to
             demonstrate that the mitigation  proposed is adequate. To the extent that
             adequate mitigation  is possible, mitigation must include replacement in the
             river  system.

       e.     Proposed riprapping of the shoreline could further reduce wetland         ^Hr
            , acreage. The applicant has failed to demonstrate that there will not be an
             adverse water quality and related habitat impact resulting from riprapping.

       f.     Based upon information received by the Department, the applicant has
             underestimated the total wetland acreage affected.
 2.     The applicant has failed to demonstrate that there will be no adverse water
       quality impacts  from increased groundwater levels resulting from the project.
    .   The ground  water model used by the applicant is  not acceptable due to
       erroneous assumptions and the lack of a sensitivity analysis. The applicant has
       not provided sufficient information concerning the impact of increased
       groundwater levels on existing  sites of subsurface contamination, adequacy of
       subsurface sewage system replacement areas  and the impact of potential
       increased surface flooding.  Additionally, information was not provided to
       adequately assess the effect of raised groundwater on sewer system laterals.
       effectiveness of sewer rehabilitation measures and potential  for increased flows at
       the Harrisburg wastewater plant.                                     i
                                                                       .   I
3.     The applicant has failed to demonstrate that there will not be a dissolved oxygen
       problem as a result  of the impoundment. Present information indicates jthe
       existing river system in the area is sensitive to diurnal, dissolved oxygen  \
       fluctuation.  Sufficient information was not provided to allow the Department to
       conclude that dissolved oxygen standards will be met in the pool area.
       Additionally, the- applicant failed  to adequately address the issue of anticipated
       dissolved oxygen levels below the dam.                                j

4.     The proposed impoundment will  create a backwater on the  lower three  miles of
       the Conodoguinet Creek.  Water quality in the Creek is currently adversely
       affected by nutrient  problems.  The applicant has failed to demonstrate  that
       there will not be water qualit-  degradation as a result of the impoundment.
5.     The applicant has failed to demonstrate that  there will not be an adverse water
       quality impact resulting from combined sewer overflows.

6.     The applicant has failed to demonstrate that  there will not be an adverse, water
       quality impact to the 150 acre area downstream of the proposed dam and
       upstream from the existing Dock Street dam.

7.     The applicant has failed  to demonstrate that  the construction and operation of
       the proposed darn will not have an adverse impact on the aquatic resources
       upstream from the proposed impoundment.  For example, the suitability of the
       impoundment for smallmouth bass spawning relative to the frequency of turbid


      conditions during spawning was not adequately addressed and construction of the
      dam and  impoundment will result in a decrease in the diversity and density of
      the macroinvertebrate community in the impoundment area.

8.     Construction of the dam will have an adverse impact on upstream and
      downstream migration of migratory fish (especially shad). Even with the
      construction of fish passageways for upstream and downstream migration,
      significant declines in the numbers of fish successfully negotiating the obstruction
      are anticipated.

9.     The applicant has failed to demonstrate that there will not be an adverse water
      quality impact related to sedimentation within the pool area.


                                 APPENDIX D



       Maryland  certified with conditions the fill/alteration of 6.66 acres of non-tidal
 wetlands as part  of the construction of an 18 hole golf course and a, residential
 subdivision.  Approximately three-fourths of the entire site of 200 acres had been
 cleared for cattle grazing and agricultural activities in the past.  As a result, a stream on
 the east side of the property with no buffer had been severely degraded.  An
 unbuffered tractor crossing had also degraded the stream.  A palustrine forested
 wetland area on the southeast side of the property received stormwater runoff from a
 highway bordering the property and served as a flood storage and ground water
 recharge area.  Filling this area for construction of a fairway would eliminate some 4.5
 acres of wetlands. Additionally, other smaller wetland areas  on the property, principally
 around an old farm pond that was to be fashioned into four  separate ponds for water
 traps, were proposed to be altered or lost as a result of the development.

       The Corps did not exercise its discretionary authority to require an individual
 permit and thus the project was permitted under a nationwide permit (26).  The State
 decided to grant certification,  conditioned on a number of things that it believed  would
 improve the water quality of the stream in the long run.

       The filled wetland areas had to be replaced on an acre-for-acre basis on the
property and in particular, the 4.5 acre forested palustrine wetland had to be replaced
onsite with a wetland area serving the same functions regarding stormwater runoff from
the highway.

       Some of the other conditions placed on the certification were as follows:

       1.     The applicant must obtain and cprtify compliance with a grading and
             sediment control plan approved by the [name of county] Soil Conservation

      2.     Stormwater runoff from impervious surfaces shall be controlled to prevent
             the washing of debris into the waterway.  Stormwater drainage facilities
             shall be  designed, implemented, operated and maintained in accordance
             with the requirements of the [applicable county  authority];

                                                                     \           A
3.     The applicant shall ensure that fish species are stocked .in the ponds upon   ^^
       completion of the construction phase in accordance with the requirements
       of the [fisheries division of the natural resources  department of the State];
4.     The applicant shall ensure that all mitigation areas are inspected annually
       by a wetlands scientist to  ensure that all wetlands are functioning |
       properly;                                                      ,.

5.     A vegetated buffer shall be established around the existing stream  and
       proposed ponds;                                               |   .
6.     Biological control methods for weed, insects and  other undesirable species
       are to be employed whenever possible on the greens, tees, and fairways
       located within or in close  proximity to the wetland or waterways;

7.     Fertilizers are to be used  on greens, tees, and fairways only.  From the
       second year of operation,  all applications of fertilizers at  the golf course
       shall" be in the lower range dosage rates [specified].  The use of slow
       release compounds such as sulfur-coated urea is  required.  There shall be
       no application of fertilizers within two weeks of verticutting, coring or
       spiking operations.


                         PERMITS IN WEST VIRGINIA:

1.     Permittee will investigate for water supply intakes or other activities immediately
       downstream which may be affected by suspended solids and turbidity increases
       caused by work in the watercourse.  He will give notice to operators of any such
       water supply intakes before beginning work in the watercourse in sufficient time
       to allow preparation for any change in water quality.

2.     When no feasible alternative is available,  excavation, dredging or filling in the
       watercourse will be done to the minimum extent practicable.

3.     Spoil materials from the watercourse or onshore operations, including sludge
       deposits, will not be dumped into the water course or deposited in wetlands.

4.     Permittee will employ measures to prevent or control spills from fuels, lubricants,
       or any other materials used in construction from entering the watercourse.

5.     Upon completion of earthwork operations, all fills in the watercourse or onshore
       and other areas disturbed during construction, will be seeded, riprapped, or given
       some other type of protection from subsequent soil erosion. If riprap is utilized,
       it is to be of sr-h weight and size that bank stress or slump conditions.will not
       be created due to its placement.  Fill is to be clean and of such composition that
       it will not adversely effect the biological, chemical or physical properties of the
       receiving waters.

6.     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

7.     Best Management Practices for sediment and erosion control as  described in the
       208 Construction Water Quality Management Plan are to be implemented.

8.     Green concrete will not be permitted to enter the watercourse unless contained
       by tightly sealed forms or cells.  Concrete handling equipment will not  discharge
       waste washwater into the watercourse or wetlands without adequate wastewater

9.     No instream work is permissible during the fish spawning season April through

10.   Removal of mature riparian vegetation not directly associated with project
      construction is prohibited.

11.   Instream equipment operation is to be minimized and should be accomplished
      during low flow periods.

12.   Nationwide permits are not applicable for activities on Wild and Scenic Rivers or
      study streams, streams on the Natural Streams Preservation List or the New
      River Gorge National River. These streams include New River (confluence with
      Gauley to mouth of Greenbrier); Greenbrier River (mouth to Knapps Creek),
      Birch River (mouth to Cora Brown Barge in Nicholas County),  Anthony Creek,
      Cranberry Run, Bluestone  River, Gauley River, and Meadow River.

13.   Each permittee shall follow the notice requirements contained in Section 9 of the
      Department of Natural Resources  Regulations for State Certification of
      Activities Requiring  Federal Licenses  and Permits. Chapter 20-1, Series XIX

14.   Each permittee shall, if he does not understand or is not aware of applicable
      Nationwide Permit conations, contact the Corps of Engineers prior to
      conducting any activity authorized by a nationwide permit  in order to be advised
      of applicable conditions.

**  ALASKA **
                       ••  .   .                       .'       .iO,t s.>.;
                    NATIONWIDE PERMIT 26 FROM ALASKA

       (26) Discharges of dredged or fill material into the waters listed in subparagraph
(i) and (ii) of this paragraph which do not cause the loss or substantial adverse
modification of 10 acres or more of waters of the United States, including wetlands.
For discharges which cause the loss or substantial adverse modification of 1 to 10 acres
of such waters, including wetlands, notification of the District Engineer is required in
accordance with 330.7 of this part (see Section 2 of this Public Notice).

       (i) Non-tidal rivers, streams, 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
are not part of the surface tributary system to interstate waters or navigable waters of
the United States (i.e., isolated waters).

REGIONAL CONDITION H: Work in a designated anadromous fish stream is subject
to authorization from the Alaska Department of Fish and Game.  (No change from
REGIONAL CONDITION H previously published in SPN 84-7.)


a. If, during review of the pre-discharge notification, the Corps of Engineers or the
designated State of Alaska reviewing officials determine that  the proposed activity
would  occur in  any of the following areas, the applicant will be advised that an
individual 404 permit will be  required.  Where uncertainty exists, the Corps will send
pre-discharge notification  to the designated State officials for a determination.

       1.  National Wildlife Refuges
       2.  National Parks and Preserves
       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 Preserves
       10. State Ecological Reserves and Experimental Areas
       11. State Recreation Areas


      12. Wetlands contiguous with designated anadromous fish
      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
      18. Bering Strait area:  All 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 district Coastal Management
      21. Tanana Basin Area Plan: type A-l wetlands in the
          Alaska' Rivers Cooperative State/Federal Study
      22. Susitna Area Plan:  type A-l wetlands in the Alaska
          Rivers Cooperative State/Federal Study
      23. High value headwaters and  isolated wetlands identified
          once the ongoing Wetlands  Management Plans or Guides
          listed in  b-5 (below) are  completed
      24. Alaska Natural Gas Pipeline Corridor designated type A
          and B wetlands
      25. Headwaters and isolated waters which include identified
          bald eagle, peregrine falcon, and trumpeter swan nesting
      26. ADF&G identified waterfowl use areas of statewide
      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.

 Oil and gas activities in the North Slope Borough which involve the discharge of
 dredged or fill material into waters including wetlands are not covered by the previous
 nationwide permit under 33 CFR 330.4(a) and (b) and are not covered under the
 nationwide permit 26.  These activities require individual 404 permits or other general
 permits.  These activities were previously excluded by the Corps of Engineers Special
 Public Notice 84-3 dated March 9, 1984.

 b.  Pre-discharge notification received by the Corps of Engineers for the discharge of
 dredged or fill material in the following areas will be provided to designated State
 agencies which include (1) the appropriate ADEC Regional Environmental Supervisor,
 (2) the appropriate ADF&G Regional Habitat Supervisor, (3) the appropriate DGC
 regional contact point,  and (4) the appropriate DNR regional contact (should DNR
 indicate interest in receiving notices).

       1. Headwater tributaries of designated anadromous fish
          streams and  their adjacent contiguous wetlands
       2. Open water areas of isolated wetlands greater than 10
          acres and lakes greater than 10 acres above the
       3.  North Slope  Borough wet and moist tundra areas not
          already covered by APP process
       4.  Wet and moist tundra areas outside the North Slope
       5.  High value headwaters and isolated wetlands identified
          in the following ongoing State or Federal wetland'
          management guides or plans:  Mat-Su, Kenai Borough,
          Valdez, North Star Borough Yukon Delta and Copper
          River Basin
       6.  Headwater pr isolated wetlands within  lou-; CZM district
          boundaries or the identified coastal zone boundary,
          whichever is geographically smaller (not withstanding
          the  requirements under "a." 14.20 (above))
       7.  Anchprage Area: designated Special Study areas in the
          Wetlands Management Plan
       8.  Tanana Basin Area Plan:  areas designated A-2, B-l, B-2
          in the Alaska River Cooperative State/Federal Study
       9.  Susitna Area Plan: areas designated A-2, A-3, A-4  in
          the  Alaska River Cooperative State/Federal Study

The designated officials of the State of Alaska, and the Corps will evaluate the
notifications received for the areas listed "b."  above under the provisions set forth in 33
CFR 330.7 (see Section 2 of this Public Notice) which includes an evaluation of the

environmental effects using the guidelines set forth in Section 404(b)(l) of the Clean
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), (4), (6), and (7) and (9) will be focused on during the State

The State's review of these areas under "b."  above will encompass the following:

       1.  After receiving pre-discharge notification from the Corps, the State of Alaska
shall comment verbally, and/or if time permits, in writing to the Corps District Engineer
through a single State agency concerning  the need for an individual permit review.

       2.  Existing fish and wildlife atlases and field knowledge shall be used to evaluate
notices.  If significant resource values are not identified for the area in question or if
insufficient resource information exists, State agencies will not request an individual
permit unless:

       (a)  An on-site field evaluation will be conducted, weather
permitting, during the extended review provided under the individual permit,  or;

       (b)  Federal  resource agencies plan a  similar field evaluation that could provide
identical information to State resource agencies.

Should either the State review or the Corps review determine that the nationwide
permit is not applicable,  an individual 404 permit will be required.

New categories may be added at a later date should either the Corps or the  State of
Alaska recognize a  need.  These changes will be made available for public review
through a public notice and comment period at the appropriate time.

This REGIONAL CONDITION shall be effective for the period of time that
nationwide permit  26 is in effect unless the  REGIONAL CONDITION is sooner
revoked by the Department of the Army with prior coordination with the State of

                                      APPENDIX E
Federal Register/^Vol. 45.  No. 249  /  Wednesday. December 24. 1980 /  Rules and Regulations  85355
                             Sutopart H-Actions To Mlnlmte*
                             Advert* Effect*

                               Note.—There are nuny actions which can
                             be undertaken in response to | 203.lO(d) to
                             minimize the advene effect! of discharges of
                             dredged or fill material Some of these.
                             grouped by tyj* of activity, are listed in this

                             {230.70 Action* concerning tne location
                             of the dMchargs).
                               The effect* of the diicharge can be
                             minimized by the choice of the disposal
                             site. Some of the ways to accomplish
                             this are by:
                               (a) Locating and confining the
                             discharge to minimize smothering of
                               (b) Designing the discharge to avoid a
                             disruption of periodic water inundation
                               (c) Selecting a disposal site that has
                             been used previously for dredged
                             material discharge:
                               (d)'Selecting a disposal site at which
                             the substrate" is composed of material
                             similar to that being discharged, such as
                             discharging sand on sand or mud on


 65356  Federal Register  /  Vol. 45. No.  249 /  Wednesday. December  24.  198O / Rules and Regulations
   If) Selecting the disposal site, the
 discharge point, and the method of
 discharge to minimize the extent of any
   (f) Designing the discharge of dredged
 or fill material to minimize or prevent
 the creation of standing bodies of water
 in .ireas of normally fluctuating wafer
 levels, and minimize or prevent the
 drainage of areas subject to  such

 § 230.71  Action* concerning the material
 to M discharged.
   The effects of a discharge  can be
 minimized by  treatment of. or
 limitations on the material itself, such
   (a) Disposal of dredged material in
 such a manner that physiochemical
 conditions are maintained and the
 potency and availability of pollutants
 are reduced.
   (b) Limiting  the solid, liquid, and
 gaseous components of material to be
 discharged at a particular site:
   (c) Adding treatment substances to
 the discharge material;
   (d) Utilizing chemical flocculants to
 enhance the deposition of suspended
 participates in diked disposal areas.

 § 230.72  Actions controlling the material
 after discharge.
   The effects of the dredged or Mil
 material after discharge may be
 controlled by:
   (a) Selecting discharge methods and
 disposal sites where the potential for
 erosion, slumping or leaching of
 materials into the surrounding aquatic
 ecosystem will be reduced. These site*
 or methods  include, but are not limited
  (1) Using containment levees, sediment
 basins, and  cover crops to reduce
   (2) Using lined containment areas to
 reduce leaching where leaching of
 chemical constituents from the
 discharged material is expected to be a
  (b) Capping  in-ptac* contaminated
 material with clean material or
 selectively discharging the most
 contaminated materialfint to be capped
 with the remaining malarial:
  (c) Maintaining and containing
 discharged material property to prevent
 point and nonpoint sources of pollution:
  (d) Timing the discharge to minimize
 impact, for instance during periods of
 unusual high water flows, wind. wave.
and tidal actions.

§230.73  Actions affecting the method ol
  The effects of a discharge can be
minimized by the  manner in which it  is
dispersed, such as:
  (a) Where environmentally desirable.
distributing the dredged material widely
in a thin layer at the disposal site to
maintain natural substrcte contours and
  (b) Orienting a dredged or fill material
mound to minimize undesirable
obstruction to the water current or
circulation pattern, and utilizing natural
bottom contours to minimize the size of
the mound:
  (c) Using silt screens or other
appropriate methods to confine
suspended parttculate/turbidity to a
small area  where settling or removal can
  (d) Making use of currents and
circulation patterns to mix. disperse and
dilute the discharge;
  (e) Minimizing water column turbidity
by using a submerged diffuser system. A
similar effect can be accomplished by
submerging pipeline discharges or
otherwise releasing materials near the
  (f) Selecting sites or managing
discharges  to confine and minimize the
release of suspended participates to give
decreased turbidity levels and to
mnintain light penetration for organisms:
  (g) Setting limitations on the amount
of material to be discharged per unit of
time or volume of receiving water.

f 230.74 Action* related to technology.
  Discharge technology should be
adapted to the needs of each site. In
determining whether the discharge
operation sufficiently minimizes adverse
environmental impacts, the applicant
should consider
  (a) Using appropriate equipment or
machinery, including protective devices,
and the use of such equipment or
machinery in activities  related to the
discharge of dredged or Rll material:
  (b{ Employing appropriate
maintenance and operation on
equipment or machinery, including
adequate training,  staffing, and working
  (c) Using machinery and techniques
that are especially  designed to reduce
damage to wetlands. This may inctade
machines equipped with devices that
scatter rather than mound excavated
materials, machines with specially
designed wheels or tracks, and the use
of mats under  heavy machines to reduce
wetland surface compaction and rutting:
  (d) Designing access  roads and
channel spanning structures using
culverts, open channels, and diversions
that will pass both low  and high water
flows, accommodate fluctuating water
levels, and  maintain circulation and
faunal movement;
  (e) Employing appropriate machinery
and methods of transport of the material
for discharge.

5 230.75 Actions affecting plant and
animal populations.
  Minimization of adverse effects on
populations of plants and animals can
be achieved  by:
  (a) Avoiding changes in water current
and circulation patterns which would
interfere with the movement of animals:
  (b) Selecting, sites or managing
discharges to prevent or avoid creating
habitat conducive to the development of
undesirable predators or species which
have • competitive edge ecologically
over indigenous plants or animals;
  (c) Avoiding sites having unique
habitat or other value, including  habitat
of threatened or endangered species:
  (d) Using planning and construction
practices to institute habitat
development and restoration to produce
a new or modified environmental state
of higher ecological value by
displacement of some or all of the
existing environmental characteristics.
Habitat development and restoration
techniques can be used to minimize
adverse impacts and to compensate for
destroyed habitat. Use techniques that
have been demonstrated to be effective
in circumstances similar to those under
consideration wherever possible. Where
proposed development and restoration
techniques have not yet advanced to the
pilot demonstration stage, initiate their
use on a small scale to allow corrective
action if unanticipated adverse impacts
  (e) Tuning discharge to avoid
spawning or migration seasons and
other biologically critical time periods:
  -(f) Avoiding the destruction of
remnant natural sites within areas
already affected by development.

f 230.7* Actions) effecting human uee.
  Minimization of adverse effects on
human use potential may be achieved
  (a) Selecting discharge sites and
following discharge procedures to
prevent or minimize any potential
damage to the aesthetically pleasing
features of the aquatic site (e.g.
viewscapes). particularly with respect to
water quality;
  (b) Selecting disposal sites which  are
not valuable as natural aquatic areas;
  (c) Timing the discharge to avoid the
seasons or periods when human
recreational  activity associated with the
aquatic site is most important;
  (d) Following discharge procedures
which avoid or minimize the disturbance
of aesthetic features of an aquatic site or

          Federal Register  /  Vol. 45.  No. 249  /  Wednesday. December  24. 1980 / Rule, and
    [e] Selecting sites that will not be
  detrimental or increase incompatible
  human activity, or require the need for
  frequent dredge or fill maintenance
  activity in remote fish and wildlife
   (f) Locating  the disposal site outside
 of the vicinity  of a public water supply

 §230,77   Otrmr action*.
   (a) In the case of fills, controlling
 runoff and other discharges from
 activities to be conducted on the fill:
   (b) In the case of dams, designing
 water releases to accommodate the
 needs of fish and wildlife.
   (c) In dredging projects funded by
 Federal agencies other than the Corps of
 Engineers, maintain desired water
 quality of the return discharge through
 agreement with the Federal funding
 authority on scientifically defensible
 pollutant  concentration levels in
 addition to any applicable water quality
  (d) When a significant ecological
 change in the aquatic environment it
 proposed  by the discharge of dredged or
 fill material, the permitting authority
 should consider the ecosystem that will
 oe lost as well as the environmental
benefits of the new system.

     1. The state water quality certification process  is authorized by
     Section 401 of the Clean Water Act,  33 U.S.C.  §1341.

     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 '.ppropriate  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 "state" also  includes the  District of
     Columbia, the Commonwealth of Puerto Rico, the Virgin Islands,
     Guam, American Samoa, the Commonwealth of  the Northern Mariana
     Islands, and the Trust  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 issues  to  protect and manage the nation's
     wetland resources.   The goal  of  the Forum  was to  develop sound,
     broadly supported recommendations 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
     Street, NW, Washington, D.C.  20037.

     4.  33 U.S.C.  §4.1313 (c)(2)(A).

     5.  Section  30l(b)(1)(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
     may be  reviewed  by the  federal  courts.

     7.  33  C.F.R.  §328.3   (Corps  regulations);  40 C.F.R., §232 . 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.

10. Kentucky Environmental Protection Act, KRS 224.005(28).

11. Tennessee Water Quality Control Act, §69-3-103(29).

12. Massachusetts Clean Waters Act, Chapter 21, §26.

13. K.R.S. 224.005(28)(Kentucky enabling legislation defining
waters of the state); 401 K.A.R. 5:029(1)(bb)(Kentucky water
quality standards defining surface waters); Ohio Water Pollution
Control Act, §6111.01(H)(enabling legislation defining waters of
the state); Ohio Administrative Code, §3745-1-02(ODD)  (water
quality standards defining surface waters of the state) .

14. Massachusetts Clean Waters Act, Chapter 21, §26  (enabling
legislation defining waters of the state); 314 Code of Mass.
Regs. 4.01(5)(water quality standards defining surface waters).

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

16. 40 C.F.R. §131.

17. A use attainability analysis (40 C.F.R. §131.10(g)) must show
at least one of six factors in order to justify not meeting the
minimum "fishable/swimmable" designated uses or to remove such a
designated use.  The analysis must show that attaining a use is
not feasible because of: naturally occurring pollutant
concentrations; natural flow conditions or water levels that
cannot be made up by effluent discharges without violating state
water conservation requirements; human caused pollution that
cannot be remedied or that would cause more environmental damage
if corrected; hydrologic modifications, if it is not feasible to
restore the water to its original conditions or operate the
modification to attain the use; natural non-water quality
physical conditions precluding attainment of aquatic life
protection uses; or controls more stringent than those required
by §301(b) and §306 would result in substantial and widespread
economic and social impact.

18. Questions and Answers on Antidegradation (EPA, 1985).  this
document is designated as Appendix A of Chapter 2 of EPA's Water
Quality Standards Handbook.

19. The regulations implementing Section 404(b)(l) of the Clean
Water Act are known as the "(b)(1)  Guidelines" and are located at
40 C.F.R. §230.

20. 40 C.F.R. §230.l(d)

21. 40 C.F.R. §230.10(c).

22. Code of Maryland Regulations Title 10, §


23. Minnesota Rules, §7050.0170.  The rule 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 construed 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 human
     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 instances where the
     natural level is lower than the specified standard and
     reasonable justification exists for preserving the
     quality to that found in a state of nature.

24.  No. 83-1352-1  (Chancery Court, 7th Division, Davidson
County, 1984)(unpublished opinion).

25. These criteria are at 401 K.A.R. 5:031, §2(4) and  §4(l)(c),

26. Ohio Admin. Code, §3745-32-05.

27. Ohio Admin. Code, §3745-1-05(C).

28. Copies of Ohio's review guidelines are available from Ohio
EPA, 401 Coordinator, Division  of Water Quality Monitoring and
Assessment,  P.O. Box 1049, Columbus, Ohio 43266-0149.

29. 40 CFR §131.12.

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

31. Kentucky Water  Quality Standards, Title 401 K.A.R.  5:031,  §7

32. Minnesota Rules, §7050.0180,  Subpart  7.

33. 314 Code of Massachusetts Regulation, §4.04(4).

34. Minnesota Rules, §7050.0180,  Subpart  9.

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


36. 115 Cong. Rec. H9030  (April 15, 1969)(House debate); 115
Cong. Rec. S28958-59  (Oct. 7, 1969)(Senate debate).

37.  C.F.R. §323.2(d).  However, in Reid v. Marsh, a case
predating these regulations, the U.S. District Court for the
Northern Corps District of Ohio ruled that "even minimal
discharges of dredged material are not exempt from Section 404
review".  In thrs district, the Corps treats all dredging
projects under Section 404.

38. West Virginia Code, §47-5A-l (emphasis added).

39. Clean Water Act,  §401(a)(2).

40. 40 C.F.R. §230.10(a).

41. 40 C.F.R. §230.10(d).

42. Arnold Irrigation District v. Department of Environmental
Quality. 717 Pac.Rptr.2d  1274 (Or.App. 1986).

43. Marmac Corporation v. Department of Natural Resources of the
State of West Virginia, C.A. No. CA-81-1792  (Cir. Ct., Kanawha
County 1982).

44. 33 U.S.C. §1313(c)(2)(A).

45. West Va. Admin. Code, §47-5A-9.3  (a).

46. Unpublished paper by  Dr. Paul Hill of West Virginia's
Department of Natural Resources.  Prepared for EPA-sponsored
December 1987 workshop on "The Role of Section 401 Certification
in Wetlands Protection".

47. 33 C.F.R. §325.2(b)(ii).

48. 18 C.F.R. §4.38(e)(2).

iJ. 40 C.F.R. §124.53(0) (3) .

50. Wisconsin Administrative Code, NR 299.04.

51. West Va. Admin. Code, §47-5A-4.3.

52. Id.

53. 40 C.F.R. §121.2.  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 some anomalies as a

64. See D. Burke, Technical and Programmatic Support for 401
Certification in Maryland, (Maryland Department of Natural
Resources, Water Resources Administration, December
1987)(unpublished); A. Lam, Geographic Information Systems for
River Corridor and Wetland Management in River Corridor Handbook
(N.Y.Department of Environmental Conservation)(J. Kusler and E.
Meyers eds., 1988).

     The system described by Burke is called MIPS (Map and Image
Processing System) and is capable of translating a myriad of
information to the scale specified by the user.

65. See, e.g.. [multiple authors], "Ecological Considerations in
Wetlands Treatment of Municipal Wastewaters," (Van Nostrand
Reinhold Co., New York, 1985); E. Stockdale, "The Use of Wetlands
for Stormwater Management and Nonpoint Pollution Control:  A
Review of the Literature," (Dept. of Ecology, State of Washington
1986); "Viability of Freshwater Wetlands for Urban Surface Water
Management arid Nonpoint Pollution: An Annotated Bibliography,"
prepared by The Resource Planning Section of King County,
Washington Department of Planning and Community Development
(July, 1986).

66. The Warren S. Henderson Wetlands Protection Act of 1984, Fla.
Stat. §403.91 - 403.938, required the Florida Department of
Environmental Regulation to establish specific criteria for
wetlands that receive and treat domestic wastewater treated to
secondary standards.  The rule is at Fla. Admin. Code, §17-5.

67. Maximization of sheet flow.

68. Hydrologic loading and retention rates.

69. Id.;  See also L. Schwartz, Criteria for Wastewater Discharge
to Florida Wetlands, (Florida Department of Environmental  ,
Regulation)(Dec. 1987)(unpublished report)

70.  Copies of the draft, "Use of Advance Identification
Authorities under Section 404 of the Clean Water Act: Guidance
for Regional Offices", ccin be obtained from the Regulatory
Actitivities Division of the Office of Wetlands Protection  (A-
104F), EPA, 401 M Street, SW, Washington, D.C. 20460.

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

55. Ohio Admin. Code,  §3745-32-05.

56. See, e.g.. P. Adamus, 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, Identification of Wetland Functions  and Values, in
Proceedings: National  Wetlands Assessment Symposium (Chester, VT:
Association of State Wetland Managers, 1986)(list  of twenty  five

57. See, e.g.. R. Tiner, Wetlands of the United States;  Current
Status and Recent Trends  (U.S. Govt. Printing Office
1984)(National Wetlands Inventory).  'The National  Wetlands
Inventory has mapped approximately  45 percent of the lower forty
eight states and 12 percent of Alaska. A number of regional;and
state reports may be obtained from  the National Wetlands
Inventory of the U.S.  Fish and Wildlife Service in Newton Corner,
MA.  Region 5 maps can also be ordered from the U.S. Geological
Survey's National Cartographic Information Center  in Reston,  VA(.

58. The new joint Federal Manual for Identifying and Delineating
Jurisdictional Wetlands, can be obtained from the  U.S. Government
Printing Office 1989).

59. See, e.g.. Chesapeake Bay Critical Areas Commission, Guidance
Paper No. 3, Guidelines for Protecting Non-Tidal Wetlands in the
Critical Area (Maryland Department  of Natural Resources, April

60.  For information on the Wetlands Values Data Base contact:
Data Base Administrator, U.S. Fish  and Wildlife Service, National
Energy Center, 2627 Redwing Road, Creekside One, Fort Collins,
Colorado, 80526.  Phone:  (303) 226-9411.

61. For example, Florida's Section  380 process designates "Areas
of Critical State Concern" which often include wetlands.  Florida
Statutes §380.05.

62. 40 C.F.R. §230.80  (1987).

63. 16 U.S.C. §1452(3) (1980).  See also. U.S.Army Corps of
Engineers,  Regulatory  Guidance Letter No. 10 (1986).


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