preservation. The courts that have touched on the issue have also indicated that 

 conditions that relate in any way to water quality maintenance are appropriate. Each 

 State will have to make these determinations for itself, of course; there are any number 

 of State and local programs that have components related to water quality preservation 

 and enhancement- 

 One issue that has arisen in two court cases is whether a State may use State 

 law requirements, other than those that are more stringent than the provisions of 

 Sections 301, 302, 303, 306 and 307 of the CWA(401(a)(l)), to deny water quality 

 certification. An Oregon State court has ruled that a State may, and indeed must, 

 include conditions on certifications reflecting State law requirements "to the extent that 

 they have any relationship to water quality." "Only to the extent that [a State law 

 requirement] has absolutely no relationship to water quality," the court said, "wotild it 

 not be an 'other appropriate requirement of State law.*"^ State agencies must act in 

 accord with State law, of course, and thus the decision to grant certification carries with 

 it the obligation to condition certification to ensure compliance with such State 

 requirements. 



This State court decision struck down a State agency's denial of certification 

 because it was based on the applicant's fafltire to certify compliance with a county's 

 comprehensive plan and land use ordinances. The court held that such "other 

 appropriate requirement[s] of State law" could not be the basis for denying certification. 

 However, the court held that the agency should determine which of the provisions of 

 the land use ordinances had any relation to the maintenance and preservation of water 

 quality. Any such provisions, the court said, could and should be the basis for 

 conditions placed on a certification. 



Another State court, however, this one in West Virginia, has upheld the State's 

 denial of certification on the basis of State law requirements unrelated to the 

 implementation of the CWA provisions enimierated in Section 401(a)(l).^^ The court 

 simply issued an order upholding the State's denial, however, and did not write an 

 opinion on the subject The questions raised by these two opinions are thon^. If 

 States may not deny certification based on State law requirements other than those 

 implementing the CWA, yet want to address related requirements of State law, they 

 must walk a thin line between their State requirements and the limitations of their 

 certification authori^ under federal law. 



One way to avoid these difficulties and to ensure that 401 certification may 

 properly be used to deny certification where the State has determined that the activity 

 cannot be conditioned in such a way as to ensure compliance with State water quality 

 related requirements, is to adopt water quality standards that include all State 

 provisions related to water quality preservation. Congress has given the States great 

 latitude to adopt water quality standards that take into consideration the waters' use for 



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