Some States have reported that for general pennits for which they have denied 

 water quality certification or on which they have imposed some condition of review,, 

 they are having diffioilties ensuring that parties performing activities pursuant to these 

 permits are applying to the State for water quality certification or otherwise fulfilling 

 the conditions placed on the certification prior to the commencement of work under 

 these permits. 



At least one State is grappling with the problem through its 401 certification 

 implementing regulations. The State of West Virginia denied certification for some 

 nationwide permits issued by the Corps and conditioned the granting of certification for 

 others. One of the conditions that West Virginia has imposed on those certifications 

 that it granted (which thus apply to all nationwide permits in the State) is compliance 

 with its 401- certification implementing regulations. The regulations in ttim require that 

 any person authorized to conduct an activity under a nationwide permit must, prior to 

 conducting any activity authorized by a Corps general permit, publish a Qass I legal 

 advertisement in a qualified newspaper in the county where the activity is proposed to 

 take place. The notice must describe the activity, advise the public of the scope of the 

 conditionally granted certification, the public's right to comment on the proposed 

 activity and its right to request a hearing. The applicant must forward a certificate of 

 publication of this notice to the State agen^ prior to conducting any such activity.^ 



The regulation further provides that any person whose property, interest in 

 property or "other constitutionally protected interest tmder [the West Virginia 

 Constitution] [is] directly affected by the Department's certification" may request a 

 hearing within 15 days of the publication of the notice given by the applicant The 

 agency will then decide whether to "uphold, modify or withdraw certification for the 

 individual activity." 



West Virginia program ofBcers have described the reasons for this procedure: 



Because of a long-standing concern . . . that untracked dredge and fill 

 activities could prove disastrous on both individual and cumulative bases, the 

 repdatioru require an authorized permittee [under federal law] to forward 

 proof of publication and a copy of the newspaper advertisement The 

 information on the notice is logged into a computer system and a site specific 

 inspection sheet is generated Inspeaors then may visit the site to determine 

 compliance with permit conditions and to evaluate cumulative impacts.^ 



Without such notice and a tracking system of activities performed under these 

 permits, such as that adopted by West Virginia, it will be difficult for a State to 

 evaluate whether or nut to grant or deny water quality certification for these permits 

 when they come up for reissuance by the Corps or to condition them in such a way as 

 to avoid adverse impacts peculiar to each of these general permits. It is advisable for 



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