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1 (October 5, 2006)

handle is hein.crs/crsmthaagnd0001 and id is 1 raw text is: Order Code 97-488 Updated October 5, 2006 CRS Report for Congress Received through the CRS Web Clean Water Act Section 401: Background and Issues Claudia Copeland Specialist in Resources and Environmental Policy Resources, Science, and Industry Division Summary Section 401 of the Clean Water Act requires that an applicant for a federal license or permit provide a certification that any discharges from the facility will comply with the act, including water quality standard requirements. Disputes have arisen over the states' exercise of authority under Section 401. For the most part, the debate over the Section 401 certification issue has been between states and hydropower interests. A 1994 Supreme Court decision which upheld the states' authority in this area dismayed development and hydropower interest groups. The Court revisited these issues in a 2006 ruling that unanimously upheld the states' authority to condition hydropower licenses. The dispute between states and industry groups about Section 401 authority has been a legislative issue on several occasions, but Congress has not responded by modifying the provision's scope. In addition, there has been interest in clarifying whether Section 401 certification applies to nonpoint source discharges, such as rainfall runoff, as well as point source discharges from pipes or ditches. This question was raised in an Oregon lawsuit; while a federal court ruled that Section 401 does not apply to nonpoint source discharges, some interests continue to favor a broad reading of 401 that would apply to both nonpoint and point sources of pollutant discharges. Background Under the Clean Water Act (CWA), an applicant for a federal license or permit to conduct any activity that may result in a discharge to waters of the United States must provide the federal agency with a Section 401 certification. The certification, made by the state in which the discharge originates, declares that the discharge will comply with applicable provisions of the act, including water quality standards requirements. Section 401 provides states with two distinct powers: one, the power indirectly to deny federal permits or licenses by withholding certification; and two, the power to impose conditions upon federal permits by placing limitations on certification. Generally, Section 401 certification has been applied to hydropower projects seeking a license from the Congressional Research Service +. The Library of Congress

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