This rule is more stringent than its federal counterpart in three areas:
(1) Wetlands mitigation (3:1 vs 1:1). WV’s rule is more stringent in this area, because the State determined that manmade wetlands rarely function as well as natural ones, and they take time to mature.
(2) Barge fleeting mitigation. This area is more stringent because barge fleeting areas restrict/eliminate acres of fishable water, and propwash damages fish nesting sites.
(3) Impingement/entrainment of fish at FERC hydropower facilities. This area is more stringent, because a previous federal court ruling stated impacts to a fishery must occur before mitigation; this provision in the State rule makes it clear we are concerned about impacts to each fish.
Federal Counterpart Regulation: 33 CFR Parts 325 and 332 and 40 CFR Part 230
The scope of this rule is as follows: The purpose of this legislative rule is to carry out the responsibilities placed upon the State
by Section 401 of the Federal Clean Water Act, 33 U.S.C. §1341 and W. Va. Code §§22-1-6(d)(7) and 22-11-
7(a). Section 401 of the Clean Water Act requires that any applicant for a federal license or permit to conduct
an activity that will or may discharge into waters of the United States (as defined in the Clean Water Act) to
present the federal authority with a certification from the appropriate state agency. This rule establishes the
procedures and criteria for the application, processing and review of state water quality certifications that
require a federal permit including those from the United States Army Corps of Engineers under Section 404 of
the Clean Water Act, 33 U.S.C. §1344; Section 10 of the Rivers and Harbors Act of 1899, 33 U.S.C. §403;
and licenses issued by the Federal Energy Regulatory Commission under the Federal Power Act, 16 U.S.C.
§1791 et. seq.
