Ohio, for instance, has written a requirement for the applicant to demonstrate 

 compliance into its 401 certification implementing regulations: 



(A) The director shall not issue a Section 401 water quality certification 

 unless he determines that the a pplicant has demonstrated that the discharge 

 of dredged or fill material to waters of the state or the creation of any 

 obstruction or alteration in waters of the state wilL-^ (1) Not preveru or 

 interfere with the attainment or maintenance of applicable water quality 

 standards; (2) Not result in a violation of any applicable provision of the 

 following sections of the Federal Water Pollution Control Act [301, 302, 303, 

 306 and 307]. 



(B) Notwithstanding an appUcant's demonstration of the criteria in paragraph 

 (A) ... the director may derty an appticadon for a Section 401 water quality 

 certification if the director concludes that the discharge of dredged orfUl 

 material or obstructions or alterations in waters of the state will result in 

 adverse long or short term impact on water quality.^^ 



C Permit Fees 



A very significant concern for all States who plan to initiate or expand their 401 

 certification program is the availability of funding. Application fee requirements are a 

 potential funding source to supplement State program budgets. The State of 

 California's Regional Water Quality Control Boards require filing fees for 401 

 certification applications unless a Board determines that certification is not required. 

 The fee structiire is spelled out in the California Water Code. The money collected 

 from the fees goes into the State agency's general fund. The Regional Boards may 

 recover some portion of the fees through the budget request process. The State of 

 Ohio also has a fee structure for 401 certification applicants. In Ohio, however, fees go 

 into the State's general fund, rather than back into the State agency. Neither State 

 coUects fees sufficient to support the 401 certification program fully. Despite these 

 potential barriers, application fees could provide a much needed funding source which 

 States should explore. 



D. Basis for Certification Decisions 



The regulations should also set out the grounds on which the decision to grant or 

 deny certification will be based, the scope of the State's review, and the bases for 

 conditioning a certification. If a State has denied water quality certification for a 

 general permit or has conditioned such a permit on some requirement of State review, 

 the State's 401 certification implementing regulations might also outline the obligations 



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