for a wide variety of plants and animals. These States have taken several different 

 approaches to wetlands protection in their water quality certification process. 



1. Using Narrative Criteria 



States have applied a variety of narrative criteria to projects in or affecting 

 wetlands in the 401 certification determination. For example, Maryland's water quality 

 standards contain a narrative directive, which the agency relied upon to deny 

 certification for a non-tidal wetland fill The standard provides that "[a]ll waters of this 

 State shall be protected for the basic uses of water contact recreation, fish, other 

 aquatic life, wildlife, and water supply."^ In its denial, Maryland stated: 



Storm wcaers are relieved of much of their sediment loads via overbanJdng 

 into the adjacent wetland and a resultant decrease in nutrient and sediment 

 loading to downstream receiving waters is occurring. To permit the fill of this 

 area would eliminate these benefits and in die.future, would leave the 

 waterway susceptible to adverse increased volumes of storm waters and their 

 associated pollutants. It is our deterrrunadon that [a specified waterway] . . . 

 requires protection of these wetland areas to assure that the waters of tftis 

 State are protected for the basic uses offish, other aquatic life, wildlife and 

 water supply. 



Because wetlands vary tremendously in baci^ound levels of certain parameters 

 measured by the traditional numerical/chemical criteria applied to surface waters, some 

 States have relied on "natural water quality" criteria to protect wetlands in the 401 

 certification process. Minnesota, for instance, has taken this approach in denying 

 certification for a flood control project because of the State's "primary concern . . . that 

 the project would likely change Little Diann Lake firom an acid bog to a fresh- 

 drcumneutral water chemistry type of wetland." The agenqr was concerned that 

 "introduction of lake water into the closed add system of Little Diann Lake would 

 completely destroy the character of this natural resource." It relied on a provision of its 

 water qu£dity standards allowing the State to limit the addition of pollutants according 

 to bacl^oimd levels instead of to the levels specified by criteria for that class of waters 

 general^. The denial letter pointed out that this rule "States that the natural 

 backgrotmd level may be used instead of the specified water quality standards, where 

 reasonable justification exists for preserving the quality foimd in the State of nature." 

 According to the denial letter, because of the clear potential for impacts to the bog, the 

 State was invoking that particular provision.^ 



Tennessee has relied on broad prohibitory language in its water quality standards 

 to deny water quality certification for wetland fill projects and has been upheld in court 

 HoUis V. Tennessee Water Quality Control Board^ was brought by a 401 certification 



15 



