This provision explicitly outlines how the State intends to maintain and protect the 

 water quality of ORWs. Another provision which Minnesota uses to control discharges 

 to waters that flow into ORWs for their effect on ORWs is that: 



The agency shall require new or expanded discharges that flow into 

 outstanding resource value waters [to] be controlled so as to assure no 

 deterioration in the quality of the downstream outstanding resource value 

 water.^ 



V. USING 401 CERXmCATION 



A. The Pennits/Licenses Covered and the Scope of Review 



The language of Section 401(a)(1) is written very broadly with respect to the 

 activities it covers. "[A]ny activity, including, but not limited to, the construction or 

 operation of facilities, which mav result in anv discharg e" requires water quality 

 certification. 



When the Congress first enacted the water quality certification provision in 1970, 

 it spoke of the "wide variety of licenses and permits ... issued by various Federal 

 agencies," which "involve activities or operations potentially affecting water quality."^ 

 The purpose of the water quality certification requirement, the Congress said, was to 

 ensure that no license or permit would be issued "for an activity that through 

 inadequate planning or otherwise could in fact become a source of poUution."^ 



1. Federal Permits/Licenses Subject to Certificatioii 



The first consideration is which federal permits or licenses are subject to 401 

 certification. OWP has identified five federal permits and/or licenses which authorize 

 activities which may result in a discharge to the waters. These are: permits for point 

 source discharges under Section 402 and discharges of dredged and fiU material under 

 Section 404 of the Clean Water Act; permits for activities in navigable waters wliich 

 may affect navij^tion under Sections 9 and 10 of the Rivers and Harbors Act (RBA); 

 and licenses required for hydroelectric projects issued under the Federal Power Act 



There are likely other federal permits and licenses, such as permits for activities 

 on public lands, and Nuclear Regulatoiy Commission licenses, which may result in a 

 discharge and thus require 401 certification. Each State should work with EPA and the 

 federal agencies active in its State to determiiie whether 401 certification is in fact 

 applicable. 



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