on the courts that may review these decisions) to consider the importance of wetlands 

 as part of the aquatic ecosystem. Third, it makes it clear that wetlands are to be 

 treated as waters in and of themselves for purposes of compliance with water quality 

 standards and not just as they relate to other surface waters. 



The third point is critical and bears further explanation. When States include 

 wetlands in the definition of stir&ce waters covered by their water qtiality standards, 

 they clarify that activities in or affecting wetlands are subject to the same analysis in the 

 certification decision as are projects affecting lakes, rivers, or streams. This is not to 

 say that a wetland project's effects on adjacent or downstream waters are not also part 

 of the water quality certification analysis. Rather, it is to say that wetlands, either 

 adjacent to 0£ isolated from other waters, are waterbodies in and of themselves and an 

 applicant for water quality certification must show that a proposed project will not 

 violate water quali^ standards in those wetlands, as well as in other waters. 



The States currently have a variety of definitions of Vaters of the State" in the 

 legislation that enables water quality standards (e.g., multi-media environmental 

 protection acts, water quality acts, and the like). Only three States currently have the 

 term Vetlands" explicitiy listed as one of the types of waters in this enabling legislation 

 (Nebraska, Rhode Island, West Virginia). These States need only to repeat that 

 definition in their water quality standards and their 401 certification implementing 

 regulations. 



While most States do not have the term Vetlands" in their enabling legislation, 

 many use the term "marshes" in a list of different types of waters to illustrate "waters of 

 the State" in their enabling legislation. Kentuclty, for example, defines waters of the 

 State as: 



. . . ar^ and all rivers, streams, creeks, lakes, ponds, impounding reservoirs, 

 springs, wells, marshes, and all other bodies of surface or underground water, 

 natural or artifkial, situated wholly orpartfy within or bordering upon the 

 Commonwealth or within its jurisdiction.^" 



When used in this way, the term "inarshes" is typically understood to be generic 

 in nature rather than being descriptive of a type of wetland, and can therefore be 

 considered as the equivalent of the term "wetlands". In these States, however, in order 

 to ensure that the term "marshes" is interpreted as the equivalent of wetlands, the best 

 approach is to include the term "wetlands" in the definition of surface waters used in 

 the State's water quality standards and in the 401 certification implementing regulations. 



There is another group of States that has neither the term "wetlands" or 

 "marshes" in the enabling legislation's definition of waters of the State. These 

 definitions typically contain langtiage that describes in some generic maimer, however, 



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