existing uses shall be maintained and protected," The Department 

 recommends the area be restored to as near original contours as possible. 



With after-the-fact permits, just as with any other permit application, if the State 

 denies certification, the Corps is prohibited from granting a permit. If the applicant 

 refuses to restore the area and does not have a permit, the applicant is subject to a 

 potential enforcement action for restoration and substantial penalties for the 

 unpermitted discharge of pollutants by the EPA, the Corps, a citizen under the citizen 

 suit provision of the CWA, or by the State, if the activi^ violates a prohibition of State 

 law. 



If the State determines that it will get a better environmental result by 

 conditioning certification, it may choose to take that approach. The condition might 

 require mitigation for the filled area (where restoration may cause more environmental 

 harm than benefit, for instance) with restoration or creation of a potentially more 

 valuable wetland area. 



In any event, a State should not waive certification of an after-the-fiact permit 

 application simply because it is after-the-facL 



VL DEVELOPING 401 CERTIFICATION IMPLEMENTING REGULATIONS: 

 ADDITIONAL CONSIDERATIONS 



A comprehensive set of 401 certification implementing regulations would have 

 both procedural and substantive provisions which maYmiiw the State agency's control 

 over the process and which make its decisions defensible in court The veiy fact of 

 having 401 certification regulations goes a long way in providing the State agency that 

 implements 401 certification with credibility in the courts. Currently, no State has "ideal" 

 401 certification implementing regulations, and many do not have them at alL When 

 401 certification regulations are carefully considered, they can be very effective not only 

 in conserving the quality of the State's waters, but in providing the regulated sectors 

 with some predictability of State actions, and in minimizing the State's financial and 

 him:ian resource requirements as well 



Everything in this handbook relates in some way to the development of sound 

 water quality standards and 401 certification implementing regulations that will enhance 

 wetland protection. This section addresses some very basic procedural considerations of 

 401 certification implementing regulations which have not been treated elsewhere. 

 These include provisions concerning the contents of an application for certification; the 

 agenqr's timefiame for review; and the requirements placed on the applicant in the 

 certification process. 



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