n. WHAT IS WATER QUALITY CERTIFICATION AND HOW DOES IT WORK? 



States may grant or deny "certification" for a federally permitted or licensed 

 activity that may result in a discharge to the waters of the United States, if it is the 

 State where the discharge will originate. The decision to grant or deny certification is 

 based on a State's determination from data submitted by an applicant (and any other 

 information available to the State) whether the proposed activity wiU comply with the 

 requirements of certain sections of the Qean Water Act enimierated in Section 

 401(a)(1). These requirements address effluent limitations for conventional and 

 nonconventional poUutants, water quality standards, new source performance standards, 

 and toxic pollutants (Sections 301, 302, 303, 306 and 307). Also included are 

 reqiiirements of State law or regulation more stringent than those sections or their 

 federal implementing regulations. 



States adopt surface water quality standards pursuant to Section 303 of the Qean 

 Water Act and have broad authority to base those standards on the waters' use and 

 value for "public water supplies, propagation of fish and wfldlife, recreational purposes, 

 and . . . other purposes.*^ All permits must include effluent limitations at least as 

 stringent as needed to maintain established beneficial uses and to attain the quality of 

 water designated by States for their waters.^ Thus, the States' water quality standards 

 are a critical concern of the 401 certification process. 



If a State grants water quality certification to an applicant for a federal license 

 or permit, it is in effect saying that the proposed activity w^ comply with State water 

 quality standards (and the other CWA and State law provisions enumerated above). 

 The State may thus deny certification because the applicant has not demonstrated that 

 the project wfll compfy with those requirements. Or it may place whatever limitations 

 or conditions on the certification it determines are necessary to assure compliance with 

 those provisions, and with any other "appropriate" requirements of State law. 



If a State denies certification, the federal permitting or licensing agency is 

 prohibited from issuing a permit or licensee. While the procedure varies from State to 

 State, a State's decision to grant or deny certification is ordinarily subject to an 

 administrative appeal, with review in the State courts designated for appeals of agency 

 decisions. Court review is typically limited to the question of whether the State 

 agency's decision is supported by the record and is not arbitrary or capricious. The 

 courts generally presume regularity in agency procedures and defer to agency expertise 

 in their review.* 



States may also waive water quality certification, either affirmatively or 

 involimtarily. Under Section 401(a)(1), if the State fails to act on a certification request 



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