Indeed, it is not always dear when 401 certification should apply. For instance, 

 there remains some confusion under Sections 9 and 10 of RHA concerning which .. 

 projects may involve or result in a discharge, and thus require State certification. In 

 many cases there is an overlap between Section 404 CWA and Sections 9 and 10 RHA. 

 Where these permits overlap, 401 certification always applies. Under the Seaion 404 

 regulations, the question of whether dredging involves a discharge and is therefore 

 subject to Section 404, depends on whether there is more than "de minimis, incidental 

 sofl movement occurring during normal dredging operations".^ 



Where only a Section 9 or 10 permit is required, 401 certification would apply if 

 the activity may lead to a discharge. For example, in the case of pilings, which the 

 Corps sometimes considers subject to Section 10 only, a 401 certification would be 

 required for the Section 10 permit if structures on top of the pilings may result in a 

 discharge. 



States shoiild notify the regional office of federal permitting or licensing agencies 

 of their authority to review these permits and licenses (e.g., the Q)rps of Engineers for 

 Section 404 in nonauthorized States, and Sections 9 and 10 of the RHA; EPA for 

 Section 402 permits in nonauthorized States; and the Federal Energy Regulatory 

 Commission (FERC) for hydropower licenses). In their 401 certification implementing 

 regulations. States should also give notice to applicants for these particular federal 

 permits and licenses, and for all other permits and licenses that may result in a 

 discharge to waters of the State, of their obligation to obtain 401 certification from the 

 State. 



that: 



West Virginia's 401 certification implementing regulations, for instance, state 



1.1. Scope. . . . Section 401 of the Clean Water Aa requires that any 

 applicant for a federal license or permit to conduct an activity which wUl or 

 may discharge into waters of the United States (as defined in the Clean 

 Water Act) must present the federal authority with a certification from the 

 appropriate State agency. Federal permits and licenses issued by the federal 

 government requiring certification include permits issued by the United States 

 Army Corps of Engineers under Section 404 of the Clean Water Act, 33 

 U.S.Q 1344 and licenses issued by the Federal Energy Regulatory 

 Commission under the Federal Power Act, 16 U.S.C 1791 et seq.^ 



Because West Virginia has been authorized to administer the NPDES permitting 

 program under Section 402 of the Qean Water Act, applicants for NPDES permits do 

 not have to apply for water quality certification separately. In addition. West Virginia 

 has not specifically designated Rivers and Harbors Act permits in the above regulation. 

 However, because the regulation States that such permits or licenses include Section 



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