404 and FERC licenses, those and all other permits not specifically designated but 

 which may result in a discharge to the waters would be covered by the regulation's •. 

 language. The better approach would be to enumerate all such licenses and permits 

 that are known to the State and include a phrase for all others generically. 



2. Scope of Review Under Section 401 



An additional issue is the scope of the States' review under Section 401. 

 Congress mtended for the States to use the water quality certification process to ensure 

 that no federal license or permits would be issued that would violate State standards or 

 become a source of pollution in the future. Also, because the States' certification of a 

 construction permit or license also operates as certification for an operating permit 

 (except for in certain instances specified in Section 401(a)(3)), it is imperative for a 

 State review to consider all potential water quality impacts of the project, both direct 

 and indirect, over the life of the project 



« 



A second component of the scope of the review is when an activity requiring 401 

 certification in one State (Ic the State in which the discharge originates) will have an 

 impact on the water quality of another State.* The statute provides that after receiving 

 notice of application fix>m a federal permitting or licensing agency, EPA wiU notify any 

 States whose water quality may be affected. Such States have the right to submit their 

 objections and request a hearing. EPA may also submit its evaluation and 

 recommendations. If the use of conditions cannot insure compliance with the affected 

 State's water quality requirements, the federal permitting or licensing agencyr shall not 

 issue such permit or license. ^ 



The following example of 401 certification denial by the Pennsylvania 

 Department of Environmental Resources (DER) for a proposed FERC hydroelectric 

 project illustrates the breadth of the scope of review under Section 401 (see Appendix 

 C for full description of project and impacts addressed). The City of Harrisburg, 

 Penn^lvania proposed to construct a l^rdroelectric power project on the Susquehanna 

 River. The Pennsylvania DER considered a full range of potential impacts on the 

 aquatic system in its review. The impacts included those on State waters located at the 

 dam site, as weU as those downstream and upstream from the site. The impacts 

 considered were not just from the discharge initiating the certification review, but water 

 quality impacts from the entire project Thus, potential impacts such as flooding, 

 changes in dissolved oxygen, loss of wetlands, and changes in groundwater, both from 

 construction and future operation of the project were all considered in the State's 

 decision. 



The concerns expressed by the Pennsylvania Department of Environmental 

 Resources are not necessarily all those that a State should consider in a dam 



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