applicant who proposed to place fill along the southeastern shoreline of a natural 

 swamp lake. The court upheld the denial of 401 certification, explaining: 



Reelfoot Lake is classified for fish and aquatic life, recreation, and livestock 

 watering and wildlife uses. The [Water Quality] Board has established 

 various standards for the waters in each class^ation. Among other things, 

 these standards pertain to dissolved oxygen, pH, temperature, toxic substances, 

 and other poUutants. The Permit Hearing Panel found the petitioner's 

 activity will violate the "other pollutants" standard in each classification. 

 CoUectivefy, these ["other pollutants^] standards provide that other pollutants 

 shall not be added to the water that will be detrimental to fish or aquatic 

 life, to recreation, and to livestock watering and wildlife. 



The court found that while there was no evidence that the project in and of 

 itself would Idll" Reelfoot Lake, there was evidence that the shoreline was important to 

 recreation because tourists visit Reelfoot to view its natural beauty and the lacustrine 

 wetlands function as a spawning ground for fish and produce food for both fish and 

 wildlife. It foimd that although the evidence in the record did not quantify the damage 

 to fish and aquatic life, recreation, and wildlife that would result fitim the proposed fill, 

 the opinion of the State's expert that the activity would be detrimental to these uses 

 was sufficient to uphold the denial of certification. 



Kentucky has also relied on narrative criteria. It denied an application to place 

 spoil from tmderground mine construction in a wetland area because wetlands are 

 protected firom poUution as 'Waters of the Commonwealth" and because placing spoil 

 or any fill material (pollutants imder KRS 224:005(28)) in a wetland specifically violated 

 at least two water quality criteria. One of Kentucl^'s criteria, applicable to all surface 

 waters, provides that the waters "shall not be aestheticalfy or otherwise degraded by 

 substances that . . . [i]njure, [are] toxic to or produce adverse physiological or behavioral 

 responses in humans, animals, fish and other aquatic life." 



The other criterion, applicable to warm water aquatic habitat, provides that 

 "[fjlow shall not be altered to a deff-ee which will adversely ajfect the aquatic 

 community."^ This second criterion which addresses hydrological changes is a 

 particularly important but often overlooked component to include in water quality 

 standards to help maintain wetland quality. Changes in flow can severely alter the 

 plant and animal species composition of a wetland, and destroy the entire wetland 

 system if the change is great enough. 



Ohio has adopted 401 certification regulations applicable to wetlands (and other 

 waters) that, together with internal review guidelines, result m an approach to the 401 

 certification decision similar to that of the 404(b)(1) Guidelines. Its 401 certification 

 regulations first direct that no certification may be issued unless the applicant has 



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