United States
Envtoonnrantal Protection
Agwwy
Offka of Water (WH-556F),
Offica of Wetlands, Oceans,
and Watersheds (A-104 F)
EPA843-F-93-001 x
March 1993
WETLANDS FACT SHEET #24
401 Certification and Wetlands
Opportunity for States
Under Section 401 of the Clean Water
Act (CWA), States and eligible Indian Tribes
have the authority to review and approve, con-
dition, or deny all Federal permits or licenses
that might result in a discharge to State waters,
including wetlands. The major Federal pro-
grams subject to §401 certification are: Section
404 and 402 permits (in non-delegated States);
Federal Energy Regulatory Commission (FERC)
hydropower licenses; and Rivers and Harbors
Act Section 9 and 10 permits. States may choose
to waive their §401 certification authority.
States make their decision to deny, cer-
tify or condition permits or licenses primarily
by ensuring mat the activity will comply with
State water quality standards. In addition,
States look at whether the activity will violate
effluent limitations, new source performance
standards, toxk pollutants and other water re-
source requirements of State law or regulation.
EPA Assistance to States
Technical Guidance:
In 1988, the National Wetlands Policy
Forum recommended 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 al-
terations". In response, EPA issued guidance in
1989 to States on applying §401 certification to
protect wetlands. A year later, EPA followed
this up with guidance on developing water qual-
ity standards specifically for wetlands. Wet-
land water quality standards are important be-
cause they are the primary tool used in water
quality certification decisions.
Financial Support:
Nineteen States and one Indian Tribe
have been awarded State Wetlands Grants to
support use of Section 401 Certification to pro-
Does §401 certification add another
layer of bureaucracy or cause delays?
It shouldn't Instead, 401 certification
allows States to tflkg ? more active role in
wetland decisions. In most cases, 401
certification review is conducted at the
same time as the Federal agency review.
Many States have established joint per-
mit processing to ensure this. In addi-
tion, the 401 review allows for better
consideration of State-specific concerns.
tect wetlands. These grantees are: Arizona, Cali-
fornia, Hawaii, Idaho, Indiana, Maryland, Mas-
sachusetts, Michigan, Mille Lacs Tribe, Minne-
sota, Missouri, Nebraska, North Carolina, Or-
egon, South Carolina; Texas, Utah, Virginia,
West Virginia and Wyoming.
State Progress
Over the past several years, States have
made progress in applying §401 certification to
wetlands. Some States rely on §401 certification
as their primary mechanism to protect wetlands
in the State. In addition, most States denied or
conditioned §401 certification for some §404 na-
tionwide general permits in order to reduce
certain problematic losses in their State. In par-
ticular, many States denied certification of na-
tionwide 26 because they believe that individual
review of projects in isolated and headwater
wetlands is critical to achieving CWA goals in
their State.
EPA has asked States to develop or im-
prove their wetland water quality standards by
the end of September 1993. Wisconsin is using
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401 Certification and Wetlands.
its new standards in §401 certification decisions
on wetlands. Other States are using their §401
authority to condition some of the more than 300
dams that are coming up for relicensing by FERC
§401 certification allows States to address asso-
ciated chemical, physical and biological impacts
such as: low dissolved oxygen levels, turbidity,
inundation of habitat, stream volumes and fluc-
tuations, filling of habitat, impacts on fish
migration and loss of aquatic species due to
habitat alterations.
Wood Stork
How can water quality standards protect wetlands?
Water quality standards have three
components: designated uses; criteria to pro-
tect those uses; and an antidegradation policy.
States designate uses based on the functions
and values of their wetlands. At a minimum
these uses must meet the CWA goals to pro-
vide for the protection and propagation of
fish, shellfish, and wildlife and for recreation
in and on the water. States may also designate
uses associated with unique functions and
values of wetlands such as floodwater storage
and groundwater recharge.
States adopt criteria to protect those
uses. Criteria can be general narrative state-
ments such as "maintain natural hydrologic
conditions, including hydroperiod, hydrody^
namics, and natural water temperature varia-
tions necessary to support vegetation which
would be present naturally." Criteria may
also include specific numeric values such as a
dissolved oxygen concentration of 5.0 mg/l.
State antidegradation policies include
provisions for full protection of existing uses
(functions), maintenance of water quality of
high quality waters,anda prohibition against
lowering water quality in outstanding re-
source waters. In addition, a State's
antidegradation policy addresses fill activi-
ties in wetlands by ensuring that there is no
significant degradation due to the fill activ-
ity.
Narrative criteria in conjunction
with antidegradation policies, can provide
the basis for addressing hydrologic and
physical impacts to wetlands (not discerned
through numeric criteria) caused by
nonpoint source pollution, storm water dis-
charges, groundwater pumping, filling and
othersourcesof wetland degradation. When
combined with a strong implementation
policy, wetland water quality standards can
provide the basis for such tools as best man-
agement practices, monitoring programs,
and mitigation plans, as well as serve as the
primary basis for §401 certification deci-
sions.
For more information: contact the EPA Wetlands Hotline* at 1-800-832-7828 for copies
oft Wtftayttfff and 401 Certification. 1989; Water Quality Standards for Wetlands, 1990;
Statement of Martha G. Prothro May 1992.
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