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Section 401 Certification and Wetlands
Section 401 Certification and Wetlands This fact sheet describes State
and eligible Tribal authority under Section 401 of the Clean Water Act
(CWA). It also discusses how EPA can assist States and Tribes in taking
more active roles in making wetland decisions and how States and Tribes
can use their water quality standards in Section 401 certifications to
protect wetlands. State/Tribal Authority under Section 401 Under Section
401, States and Tribes can review and approve, condition, or deny all
Federal permits or licenses that might result in a discharge to State
or Tribal waters, including wetlands. The major Federal licenses and permits
subject to Section 401 are Section 402 and 404 permits (in nondelegated
States), Federal Energy Regulatory Commission (FERC) hydropower licenses,
and Rivers and Harbors Act Section 9 and 10 permits. States and Tribes
may choose to waive their Section 401 certification authority. States
and Tribes make their decisions to deny, certify, or condition permits
or licenses primarily by ensuring the activity will comply with State
water quality standards. In addition, States and Tribes look at whether
the activity will violate effluent limitations, new source performance
standards, toxic pollutants, and other water resource requirements of
State/Tribal law or regulation.
EPA Assistance to States
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
alterations." In response, in 1989, EPA issued guidance to States
on applying Section 401 certification to protect wetlands. A year later,
EPA issued guidance on developing water quality standards specifically
for wetlands. Wetland water quality standards are important because they
are the primary tool used in water quality certification decisions. (See
the box on page 2 for details.) Twenty States and Tribes have been awarded
State Wetlands Protection Grants to support use of Section 401 Certification
to protect wetlands.
Does Section 401 certification add another
layer of bureaucracy or cause delays?
| It shouldn't. Instead, Section 401 certification
allows States to take a more active role in wetland decisions. In
most cases, Section 401 certification review is conducted at the
same time as the Federal agency review. Many States have established
joint permit processing to ensure this occurs. In addition, the
Section 401 review allows for better consideration of State-specific
concerns. |
Status of State Action
Over the past several years, States have made progress in applying
Section 401 certification to wetlands. Some States rely on Section 401
certification as their primary mechanism to protect wetlands in the
State. In addition, most States denied certification of nationwide permit
26 because they believe that individual review of projects in isolated
and headwater wetlands is critical to achieving CWA goals in their States.
EPA asked States to develop or improve their wetland water quality
standards by the end of September 1993. Wisconsin is now using its wetlands
standards in Section 401 certification decisions on wetlands. Other
States are using their Section 401 authority to condition some of the
more than 300 dams that are coming up for relicensing by FERC. Section
401 certification allows States to address associated chemical, physical
and biological impacts such as low dissolved oxygen levels, turbidity,
innundation of habitat, stream volumes and fluctuations, filling of
habitat, impacts on fish migration, and loss of aquatic species as a
result of habitat alterations.
For more information, contact the EPA Wetlands Information Hotline
(contractor operated) for copies of the following:
- Wetlands and 401 Certification, 1989
- Water Quality Standards for Wetlands, 1990
- Statement of Martha G. Prothro, May 1992
- PUD No. 1 of Jefferson County and City of Tacoma, petitioner v.
Washington Department of Ecology et. al., 114 S. Ct. 1900 (1994).
How can water quality standards protect wetlands?
| Water Qaulity standards have three primary components:
designated uses, criteria to protect 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 protect and propagate 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 ground-water recharge.
States also adopt criteria to protect those uses. Criteria
can be general narrative statements such as "maintain natural
hydrologic conditions, including hydroperiod, hydrodynamics,
and natural water temperature variations necessary to support
vegetation which would be present naturally." Criteria
may also include specific numeric values such as dissolved oxygen
concentration of 5.0 mg/l.
State antidegradation policies include provisions for full
protection of existing uses (functional), maintenance of water
quality of high-quality waters, and a prohibition against lowering
water quality in outstanding resource waters. In addition, a
State's antidegradation policy addresses fill activities
in wetlands by ensuring no significant degradation occurs as
a result of the fill activity.
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 discharges,
ground-water pumping, filling, and other sources of wetland
degradation. When combined with a strong implementation policy,
wetland water quality standards can provide the basis for such
tools as best management practices, monitoring programs, and
mitigation plans, as well as serve as the primary basis for
Section 401 certification decisions.
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