Overview of Section 401 Certification and Focusing on Wetlands
This overview describes State and authorized 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 decisions about wetlands and other aquatic resources. The overview specifically focuses on how States and Tribes can use their water quality standards in Section 401 certifications to protect wetlands. States and Tribes can review and approve, condition, or deny any Federal permits or licenses that may result in a discharge to waters of United States within their borders, including wetlands. The major Federal licenses and permits subject to Section 401 are Section 402 and 404 permits (in non-delegated 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, either explicitly or through the passage of time. States and Tribes make their decisions to deny, certify, or condition permits or licenses primarily by ensuring the activity will comply with applicable water quality standards. In addition, States and Tribes look at whether the activity will violate effluent limitations, new source performance standards, toxic pollutants restrictions and other water resource requirements of State or Tribal law.
- Handbook for more information on Section 401 certification
- Wetland water quality standards overview and resources
- Clean Water Act Section 401
Applying Section 401 Certification to Protect Wetlands
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 a handbook for States and Tribes on applying Section 401 certification to protect wetlands. A year later, EPA issued guidance on developing water quality standards specifically for wetlands. In the 2000s EPA worked with the Association of State Wetlands Managers and the Environmental Law Institute to document the structure and practices of state wetlands programs including water quality certification programs. These projects also provided forums for states and tribes to share challenges and best practices. In 2010, EPA issued an interim handbook on water quality certification highlighting many practices of state and tribal certification authorities across the country and some of the major case law from the federal courts.
In 2016 EPA released templates for developing narrative wetland water quality standards. While existing water quality standards for surface waters are often applied to wetlands, wetland-specific standards can provide better protection of their different functions and vulnerabilities. Wetlands exist as ecosystems along the margins (land–sea, land–lake, land–river) and in depressional landscapes (e.g., prairie potholes in the Midwest and kettle-hole wetlands in the northern U.S.). Wetland-specific water quality standards help to provide robust protection for wetlands through water quality certification and other programs.
Does Section 401 certification add another layer of bureaucracy or cause delays?
It shouldn't. Instead, Section 401 certification allows States and Tribes to take a more active role in decisions impacting aquatic resources. In most cases, Section 401 certification review is conducted at the same time as the Federal agency review. Many States and Tribes have established joint public notice procedures to ensure this occurs. In addition, the Section 401 review allows for better consideration of State- or Tribe-specific concerns in the federal permitting process.