Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: 401 Certification – Delivering a big payload for state rights, clean water and flood protection

A little railroad engine was employed about a station yard for such work as it was built for, pulling a few cars on and off the switches. One morning it was waiting for the next call when a long train of freight-cars asked a large engine in the roundhouse to take it over the hill “I can’t; that is too much a pull for me,” said the great engine built for hard work. Then the train asked another engine, and another, only to hear excuses and be refused. In desperation, the train asked the little switch engine to draw it up the grade and down on the other side. “I think I can,” puffed the little locomotive, and put itself in front of the great heavy train. As it went on the little engine kept bravely puffing faster and faster, “I think I can, I think I can, I think I can.”

The Little Engine that Could (1910)

The Clean Water Act includes Section 401, which confers significant authority to states.  It enables the state to certify, condition or deny any federal permit based on a state’s water quality standards and any other appropriate requirement of state law.  The ability of a state to “weigh in” on a federal permit is triggered by any activity that does or may result in a discharge. The discharge does not have to include a pollutant.  For example the water flowing through a dam’s hydropower turbines is a discharge under Section 401. http://water.epa.gov/lawsregs/guidance/cwa/
upload/CWA_401_Handbook_2010_Interim.pdf

While Section 401 is most frequently used in conditioning Clean Water Act Section 404 dredge and fill permits, it is also used to modify Federal Energy Regulatory Commission (FERC) licenses for hydropower projects and for point source discharge permits in the handful of states who have not been delegated the Section 402 program.  It has occasionally been applied to other federal permits such as those authorized by the Coast Guard.   The broad scope of federal permits subject to Section 401 means this program is a powerful tool that any state has available to support management of its water resources. It provides an opportunity for states to modify or deny any federal permit based on its water quality standards and any other appropriate requirement of state law. This means a state has the authority to direct federal programs to permit activities in ways that integrate clean water, protection from floods and hurricanes, and support for healthy wildlife populations to sustain wetlands and other water resources in ways that protect human health and safety.

The Association of State Wetland Managers (ASWM) has recently posted 11 case studies describing Section 401 programs in 11 states (DE, GA, ID, KY, LA, MO, NC, SC, TN, TX, WI).  http://www.aswm.org/wetland-programs/401-certification/729-resources?start=.  These states were selected for the project to highlight the variability from state to state.  It is up to a state to decide how much effort to devote to conditioning federal permits.  A given state may contribute more or less effort depending upon multiple factors.  These include but are not limited to the scope of state or tribal water quality regulations, state concerns with water issues and other resource management priorities, rates of wetland loss and other threats to water quality, land use policies, number of staff available, and public support.

In many places the U.S. Army Corps of Engineers and the state(s) have spent years working out the best methods of avoiding duplication and integrating expertise and resources.  Often this has been done in response to the business community’s request to make permitting decisions faster.  401 certification has been an important tool used to achieve this goal.  For example a state may take the lead in doing the review of permits for smaller projects while the Corps focuses on the larger, more complex ones.  Section 404 permits vary hugely in complexity.  While one permit may address a small fill for a single residence or the installation of a dock, another may include 200 separate stream crossings for a new pipeline or improved highway.

These agreements have reduced the time it takes to process permits, particularly the smaller ones, while allowing the state to ensure that activities are done in compliance with other states laws covering issues such as storm water discharges and flood protection.  The Corps has more time to address the larger range of issues associated with a permit that includes multiple fills such as compliance with the National Environmental Protection Act and the Endangered Species Act.  Absent these agreements that exist in a number of states, the workload of the Corps staff would double or even quadruple and the time required for decisions for both small and large projects would be subject to delays that corresponded to the changes in workload.

The opportunity to use Section 401 to integrate dredge and fill permits with other programs is also important.  The Corps implements one program under the Clean Water Act: Section 404.  The states implement the rest: point source discharges, nonpoint source programs, Total Maximum Daily Loads (TMDLs), water quality standards, etc.  Section 401 enables states to ensure that Section 404 is implemented consistently with the other parts of the Clean Water Act as well as any other appropriate requirement of state law. This could include state actions to address sea level rise, flood/hurricane protection, climate change adaptation, and wildlife/fishery management.  As the eastern seaboard recovers from Hurricane Irene, states have an opportunity to identify how to rebuild in ways that will make the coast safer.  401 certification provides states with the ability to ensure that federal permits in the states’ waters are modified to be consistent with that goal.

For more information about 401 certification visit ASWM’s 401 certification webpages at: http://www.aswm.org/wetland-programs/401-certification and the U.S. Environmental Protection Agency’s Water Quality and 401 Certification website at: http://water.epa.gov/lawsregs/guidance/cwa/waterquality_index.cfm

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