United States
Environmental Prate
Wetlands And
401 Certification

Opportunities And
Guidelines For States
And Eligible  Indian Tribes
                          Printed on Recycled Paper

                              Soult Ste.


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, D.C. 20460

      Phone: (202) 382-5043
                                                            Protection Agency

                          TABLE OF CONTENTS




     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



      This handbook has been developed by EPA's Office of Wetlands Protection
(OWP)  to highlight the potential of the State water quality certification process for
protecting wetlands, and  to provide information and guidance  to the States.1
Throughout this document, the term "State" includes those Indian Tribes which qualify
for treatment as States under the federal Clean Water Act (CWA) Section 518(e).2  We
encourage Tribes who  are interested in expanding their protection of wetlands and
other waters under this new provision of the CWA to examine water quality
certification as a readily available tool to begin their programs.

      One of OWP's key mandates is  to broaden EPA's wetlands protection efforts in
areas which complement our authority under the  Clean Water Act Section 404
regulatory program.  Thus, we are exploring and working  with other laws, regulations,
and nonregulatory approaches to enhance their implementation to protect wetlands. In
addition, the National Wetlands Policy Forum has recommended in its report issued in
November  1988, that States "make more aggressive use of their certification authorities
under Section 401 of the CWA, to protect their wetlands  from chemical and other  types
of alterations."3

      In light of these directives, we have examined the role of the Section 401 State
water quality certification process and are working with States to improve its application
to wetlands.  This process offers the opportunity to fulfill  many goals for wetland
protection because:

      *     It is a cooperative federal/State program and it increases the role of
             States in decisions regarding the protection  of natural resources;

      *     It gives States extremely broad authority to review proposed activities in
             and/or affecting State waters (including wetlands) and, in effect, to deny
             or place conditions on federal permits or licenses that authorize such

      *     It is an existing program which  can be vastly improved to protect
             wetlands  without major legislative initiatives;

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

      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 antidegradation 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  antidegradation policy for their wetlands.

    *     States should incorporate 401 certification for wetlands into their water
          quality management planning process. This process can integrate
          wetland resource information with different water management
          programs affecting wetlands (including coastal zone management,
          nonpoint source and wastewater 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, flowfs] 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 antidegradation policy.

      EPA directs that, where attainable, designated uses must include, at a minimum,
uses necessary to protect the goals of the CWA for the protection and  propagation of
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  existing 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 230.10(c) of
the Section 404(b)(l) Guidelines.19

       These Guidelines lay a substantial foundation for protecting wetlands and other
special aquatic si'^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]ll 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 fa 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.23

       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, fare] 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
"[f]low 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 OA.C. Section 3745-1-05(C) includes wetlands [in 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 RFIA; 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, 16 U.S.C. 1791 et seq.38

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


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 specified in Section 401(a)(3)), it is imperative for a
State review to consider all potential water quality impacts of the project, both direct
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

       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.

      The applicant is required to provide a mixing tower release structure to achieve in-
      stream compliance with Class III trout temperature (20[degrees] C) and dissolved
      oxygen (5.0 mg/liter) 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 the 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 requirements] 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 example, 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[s] 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 water 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


      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

      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

       In the case of FERC projects, West Virginia has taken additional precautions
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. The 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

       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 an  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 which have been mentioned in other parts of this
handbook.  These include provisions which require applicants for federal licenses and
permits which may result in a discharge  to apply for water quality certification;
provisions which define waters  of the State to include wetlands and which define other
pertinent terms; and provisions addressing  general permits.


      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 areas of critical State concern;  wetlands where herbaceous ground  cover
constitutes more than thirty percent of the uppermost stratum (unless seventy-five
percent is cattail); and others.  Wastewater discharges are permitted in certain wetlands
dominated by woody vegetation, certain hydrologically altered wetlands, and artificially
created wetlands; however, the State applies special effluent limitations to take account
of a wetland's ability to assimilate nitrogen and phosphorus. It also applies 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


non-wetland factors are also being analyzed.  The results will allow water quality
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
Environmental Protection Agency
401 M Street, SW
Washington, D.C.  20460
Phone: (202) 475-6745
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
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. Katharine 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 Lab
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 Board
P.O. Box 100
Sacramento, California 95801-0100
(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
(515) 281-8877

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
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

Richard Laux
Department of Natural Resources
P.O. Box 176
Jefferson City, Missouri  65102

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
Trenton, New Jersey  08625
(609) 633-7021

Robert Piel
Div. of Coastal Resources
Dept. of Env. Protection
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 58505
(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

Carolyn Weymouth
.Office of Environmental Coordination
Department of Environmental
83 Park Street
Providence, Rhode Island 02903
(401) 277-3434

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

Larry Bowers
Div. of Water Pollution Control
Dept. of Health and Env.
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) 459-6000

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
             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.

3.     The applicant has failed to demonstrate that there will not be a dissolved oxygen
      problem as a result of the impoundment.  Present information indicates the
      existing river system in the area is sensitive to diurnal, dissolved oxygen
      fluctuation. Sufficient information was not provided to allow the Department to
      conclude that dissolved  oxygen standards will be met in the pool area.
      Additionally, the  applicant failed to adequately address the issue of anticipated
      dissolved oxygen  levels below the dam.

4.     The proposed impoundment will create a backwater on the lower three miles of
      the Conodoguinet Creek.  Water quality in the Creek is currently adversely
      affected by nutrient problems.  The applicant  has failed to demonstrate that
      there will not be water  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 dam will not have an adverse impact  on the aquatic resources
      upstream from the proposed impoundment. For example, the  suitability of the
      impoundment for smallmouth bass spawning relative to the frequency of turbid


      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 certify compliance with a grading and
             sediment control plan approved by the [name of county] Soil Conservation

      2.     Stonnwater 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];

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

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 such weight and size that bank stress or slump conditions will not
      be created due to its placement.  Fill is  to be clean and of such composition that
      it will not adversely effect the  biological, chemical or  physical properties of the
      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 conditions, contact the Corps of Engineers prior to
      conducting any activity authorized by  a nationwide permit in order to be advised
      of applicable conditions.

**  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  or isolated wetlands within local CZM district
          boundaries  or the identified coastal zone boundary,
          whichever is geographically smaller (not withstanding
          the requirements under "a."  14.20 (above))
      7.  Anchorage Area:  designated Special Study areas  in the
          Wetlands Management Plan
      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
                              Subpart H— Actions To MWmtes)
                              Advoru Etttcto

                               Note.— Th«ra tn many actions which can
                              be undertaken in rtt ponM to | 303.10(d) to
                              minimiu tht advene effects of discharge* of
                              dredged or fill material Some of thtM.
                              grouped by type of activity, are listed in this

                              1230.70  Aedoiw oooe«mJn9 the tocatfen
                                The effect* of the discharge can be
                              minimized by the choice of the disposal
                              site. Some of the ways to accomplish
                              this are by:
                                (a) Locating and confining the
                              discharge to minimize smothering of
                                (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:
                                (deselecting 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

 85356  Federal  Register / Vol. 45. No.  249 /  Wednesday. December 24. 1960  /  Rules  and Regulations
   (H Selecting the disposal lite, the
 discharge point, and the method of
 discharge to minimize the extent of uny
   If) Designing the diachargt of dredged
 or fill material to minimize or prevent
 the creation of (landing bodies of water
 in .ircas of normally fluctuating wafer
 levels, and minimize or prevent the
 drainage of areas subject to  such

 5 230.71  Action* concerning me material
 to be 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 physiochemica!
 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
 paniculate* in diked disposal areas.

 | 230.7J  Action* controlling tne material
 after discharge.
  The effects of the dredged or fill
 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 sites
 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-place contaminated
 material with clean material or
 selectively discharging the most
 contaminated material flnt to be capped
 with the remaining material;
  (c) Maintaining and containing
 discharged material properly to prevent
 point and nonpoint source* of pollution;
  (d) Timing the discharge to minimize
 impact for instance during periods of
 unusual high water flows, wind. wav*.
 and tidal actions.

 {230.79  Action* affecting the method o!
  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 lo
maintain natural substrate 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 paniculate/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 particulates 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 b*
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 device*,
and the use of such equipment or
machinery in activities related to the
discharge of dredged or fill material:
  (b) Employing appropriate
maintenance and operation oo
equipment or machinery, including
adequate training, staffing, and  working
  (c) Using machinery and technique*
that are especially designed to reduce
damage to wetlands. This may incrade
machines equipped with devices that
scatter rather than mound excavated
materials, machines with specially
designed wheel* or tracks, and the us*
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 diversion*
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.

f.230.7S Action* affecting plant and
animal population*.
  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 a 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
technique* can be used to minimize
adverse impact* 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
technique* 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 snd
other biologically critical time periods:
  40 Avoiding the destruction of
remnant natural sit** within areas
already affected by development.

fzM.71 AesJomarfacttng human us*.
  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 (*.g-
viewscapes). particularly with respect to
water quality:
  (b) Selecting disposal site* which are
not  valuable a* natural aquatic areas:
  (c) Timing the discharge to avoid the
season* or period* 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 / Rules  and Regulations  85357
  (et Selecting sites that will not be
detrimental or increase incompatible
human activity, or require the need for
frequent dredge or Mil maintenance
activity in remote fish and wildlife
  (0 Locating the disposal site outside
of the vicinity of a public water  supply

§230.77 Other 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 is
proposed by the discharge of dredged or
fill material, the permitting authority
should consider the ecosystem that will
be 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 appropriate regulatory authority
over surface waters of the reservation; and 4) it is reasonably
expected to be capable of administering the relevant Clean Water
Act program.  EPA is currently developing regulations to
implement Section 518(e) for programs including Section 401
certification which will provide further explanation of the
process tribes must go through to achieve state status.  In
addition, the term "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 301(b)(l)(c) of the Clean Water Act.

6. If the applicant is a federal agency, however, at least one
federal court has ruled that the state's certification decision
may be reviewed by the federal courts.

7. 33 C.F.R. §328.3  (Corps regulations); 40 C.F.R. §232.2(q)  (EPA

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)(l) 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(1)(c),

26. Ohio Admin. Code, §3745-32-05.

27. Ohio Admin. Code, §3745-l-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 this 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(0)(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).

49. 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

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
1987) .

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).

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 and 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, §17-6.

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", can be obtained from the Regulatory
Actitivities Division of the Office of Wetlands Protection  (A-
104F), EPA, 401 M Street, SW, Washington,  D.C. 20460.