the States, regardless of whether they have granted or denied certification, to adopt as 

 part of their 401 certification implementing regulations, provisions addressing these ■ • 

 concerns for general permits. 



Another way in which some States are attempting to minimize the potential 

 environmental impact of nationwide permits is by stringently conditioning their 

 certification. Alaska, for instance, placed conditions on nationwide permit 26 regarding 

 isolated waters and waters above the headwaters. One of the conditions Alaska used 

 excludes isolated or headwater wetlands of known or suspected high value. When there 

 is uncertain^ about a particular wetland, the Corps is required to send pre-discharge 

 notification to designated State officials for a determination. (See Appendix D for a 

 full description of conditions on nationwide permit 26). 



2. Section 404 After-the-Fact Permits 



The Corps of Engineers' regulations implementing Section 404 provide for the 

 acceptance of after-the-fact permit applications for unauthorized discharges except 

 under certain ciromistances. Several States have expressed concern with after-the-fact 

 permits, including the belief that once the discharges have taken place, the water 

 quality certification process is moot Because of that belief, many States report that 

 they waive certification for after-the-fact permits. Such an approach frustrates law 

 enforcement efforts generally and the water quality certification process in particular 

 because it encourages iUegal. activity. 



The evaluation of after-the-fact permit applications should be no different than 

 for normal applications. Because the burden should be on the applicant to show 

 compliance with water quality standards and other CWA reqtiirements, rather than 

 waiving certification. States could deny certification if the applicant cannot show fi-om 

 baseline data prior to its activity that the activity did not violate water quality standards. 

 If data exist to determine compliance with water quality standards, the States' analysis 

 should be no different merely because the work has already been partially performed or 

 completed. Arkansas denied after-the-fact water qtiality certification of a wetland fill as 

 follows: 



[a certain slough] is cwrentfy classified as a warmwater fishery .... 

 Draining and clearing of [its associated] wetlands will significantly alter the 

 existing use by drastically reducing or eliminating the fishery habitat and 

 spawning areas. This physical alteration of the lake will prevent it from being 

 '\vater which is suitable for the propagation of indigenous warmwater species 

 offish" which is the definition of a warmwater fishery. Thus, the . . . project 

 [violates] Section 3 (A) of the Arkansas Water Quality Standards, "Existing 

 instream water uses and the level of water quality necessary to protect the 



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