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Water: Outreach & Communication

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, inundation of habitat, stream volumes and fluctuations, filling of habitat, impacts on fish migration, and loss of aquatic species as a result of habitat alterations.

How can water quality standards protect wetlands?

Water Quality 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.

 

Additional Resources

About the Wetlands Program | Publications

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