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

The Compleat Wetlander: Section 401 Certification – New Information for State and Tribal Wetland Program Managers

This past April the U.S. Environmental Protection Agency added a new document to its webpages titled:  Clean Water Act Section 401 – Water Quality Certification and Water Quality Protection Tool for States and Tribes. According to USEPA, “This new handbook describes Clean Water Act Section 401 certification authorities, the way different state
and tribal programs use certification, and how state and tribal certification programs leverage available resources to operate their own certification programs.”  It is not formal guidance, but it is a very useful document for states and tribes. http://www.epa.gov/wetlands/
pdf/CWA_401_Handbook_2010_Interim.pdf

The document supports and expands on the guidance provided in the 1989 document, Wetlands and 401 Certification:  Opportunities and Guidelines for States and Eligible Indian Tribes. http://aswm.org/pdf_lib/401_certification_
1989_guidance_epa.pdf
This, along with National Guidance on Water Quality Standards for Wetlands published in 1990,  http://www.epa.gov/owow/wetlands/regs/
quality.html
(also at http://aswm.org/pdf_lib/
water_quality_standards_for_wetlands.pdf
) describe development of water quality standards for wetlands and their application through Section 401.

Most states have very broad definitions of waters of the state (http://aswm.org/pdf_lib/ecos_feb_2009_definitions_of_waters_of_the_state.pdf) but only 20 states have also passed legislation authorizing permitting of dredge and fill activities in wetlands and other waters of the state. The remaining 30 states rely on Section 401 of the Clean Water Act, which authorizes states and tribes to condition federal permits to ensure the permits comply with the state and tribal standards for protecting aquatic resources.  Section 401 is used most commonly for conditioning Section 404 dredge and fill permits and Federal Emergency Regulatory Commission (FERC) energy (generally hydropower) permits, but has other applications.  For example Idaho is one of five states that have not taken over the Section 402 program and the state applies 401 certification to point source discharge permits http://www.deq.state.id.us/water/permits_forms/permitting/401_certification.cfm. The Great Lakes states use 401 certification to condition USEPA’s ballast water permits http://www.uscgnews.com/posted/443/Chart_Comparison_GL_State_BW_
Treatment_update_for_GLP_Mtg_June09.295669.pdf
.

The new publication incorporates court decisions since 1990 that reinforce and further clarify the use of 401 certification.  It describes the broad scope of appropriate requirements in state and tribal law that can be used to condition, deny, or waive certification.  It touches on resolution of disputes, enforcement and suspension of 401 certification.  This is a valuable document for states and tribes and is part of a new commitment by USEPA to provide technical and financial support for state and tribal wetland programs through the Enhancing State and Tribal Wetlands Programs Initiative http://www.epa.gov/owow/wetlands/initiative/estp.html
http://www.epa.gov/owow/wetlands/initiative/cefintro.html

Sampling of State 401 certification webpages
California: http://www.waterboards.ca.gov/water_issues/programs/cwa401/index.shtml
Kansas: http://www.kdheks.gov/nps/section401.html
Missouri: http://www.dnr.mo.gov/env/wpp/401/index.html
North Carolina: http://portal.ncdenr.org/web/wq/swp/ws/401
Texas: http://www.tceq.state.tx.us/permitting/water_quality/wq_assessment/
401certification/401certification_definition.html

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