Section 401 - Frequently Asked Questions

​Section 401 of the Clean Water Act requires any applicant for a federal license or permit to conduct any activity which may result in any discharge into the navigable waters to obtain a 401 WQC from the state prior to the federal license or permit being issued. This means that, even though you may have obtained a DSL permit, a USACE permit may also be required and this federal permit cannot be issued without a 401 WQC decision by DEQ.

In Oregon, USACE and DSL offer a Joint Permit Application, submitted to both agencies, so that processing can happen concurrently.  In addition, DEQ and USACE offer a single public notice process for the USACE permit and the DEQ 401 WQC. Applying and communicating with USACE, DEQ and DSL at the same time will allow better coordination among all involved agencies and result in a smoother permit process.

All applicants must submit application materials directly to the 401 Program through Your DEQ Online. The U.S. Army Corps of Engineers and the Department of State Lands often notify DEQ of the application; however, the 401 water quality review begins when DEQ receives a valid request for certification directly from the applicant. ​​

Submit all application materials through​ Your DEQ Online ​

​​As soon as you submit a Joint Permit Application to USACE and DSL, submit your application materials to DEQ through Your DEQ Online. USACE will determine if an existing 401 WQC will cover your project under a Standard Individual Permit, a Nationwide Permit, or a Regional General Permit. Please include the USACE permit number and applicant contact information with all submissions to DEQ.​

The Clean Water Act and Oregon Administrative Rules require that DEQ complete a certification decision within a reasonable period of time, (which shall not exceed one year). However, actual durations of review vary based on the complexity of the project, the quality of the information provided, design modifications, significance of water quality concerns raised during the public process, and the responsiveness of the applicant. DEQ coordinates with the U.S. Army Corps of Engineers, Department of State Lands, and other agencies prior to issuing a 401 WQC decision, typically concurrent with the USACE permit decision. 

1. ​​For Individual Permits, USACE issues a 30-day Public Notice and includes DEQ's 401 WQC public notice. The intent is to have a single process to solicit comments from the public on the potential impacts of the proposed action under the USACEs authority, as well as impacts to water quality under DEQ's authority. The process is described in OAR 340-048-0032. A public hearing may be requested and will be granted at DEQ's discretion. 
2. For projects which fit under a Nationwide permit, but in a category which has been denied 401 certification, DEQ must publish a 35-day public notice to solicit comments on the Findings and 401 WQC decision. This process is described in OAR 340-048-0027. A public hearing will be granted if 10 or more persons (or an organization representing 10 or more persons) request a hearing.
3. For projects which don't require a USACE permit, but do require a 401 (federal actions which result in a discharge), DEQ must publish a 35-day public notice to solicit comments on the Findings and 401 WQC decision. This process is described in OAR 340-048-0027. A public hearing will be granted if 10 or more persons (or an organization representing 10 or more persons) request a hearing.
   

1. ​​Identify waterway(s) affected by the proposal.
1. Include tributaries, adjacent wetlands or other waters, and groundwater
2. Determine status of the affected waterway(s)
• Integrated Report
• Approved TMDLs and implementation plans
• Groundwater Areas
• In-water work windows
2. Identify beneficial uses of affected water(s).
• Anthropogenic uses (drinking water, livestock watering, hydropower, fishing, recreation, aesthetics, etc.)
• Aquatic uses (anadromous fish spawning, rearing and migration; resident fish; aquatic life, etc.)  
3. Identify potential water quality parameters affected by proposal and potential effects to beneficial uses, and conduct an  antidegradation review.
   
• Example 1: Sediment is suspended during stream bottom disturbance for dredging.
  Increased turbidity negatively affects anadromous and resident fish.
  
• Example 2: Pervious ground is converted to pavement, which results in rain picking up deposited pollutants because runoff no longer infiltrates into the ground but now discharges directly to waters.
  If uncontrolled, toxic pollutants discharged to waterways negatively impact all aquatic life, drinking water, aesthetics, etc.
• Example 3: Wetlands between a farm field and a stream are filled.
  Removal of nutrients (phosphorus and nitrogen) from field runoff by wetland vegetation is no longer possible. This allows nutrients to enter stream in excess of water quality standards and cause algae blooms, which die and decompose depleting oxygen needed by aquatic life.
4. Identify proposed measures to avoid, minimize, or mitigate water quality impacts.
• Example 1: In-water work area isolation measures will be used to minimize turbidity and control distribution.
• Example 2: A post-construction stormwater management plan has been developed which provides adequate treatment and control of runoff to remove pollutants before discharging to waters.
• Example 3: Compensatory wetland mitigation will be accomplished nearby.
5. Determine if the proposed measures are adequate, or identify conditions needed to protect water quality standards and comply with regulations.
• Example 1: Require work to occur only during the preferred in-water timing window to protect sensitive aquatic species, and only in isolation from flowing waters with application of management measures for rewatering.
• Example 2: Require implementation of the approved post-construction stormwater management plan, effectiveness monitoring, and contingency measures.
• Example 3: Require interception of field runoff and treatment to remove nutrients prior to discharge.
6. If conditions cannot be applied to the project as proposed, identify alternatives, methods, or management practices for portions of the proposal to reduce negative effects, protect water quality, and comply with regulations. 
7. If protection of water quality standards, beneficial uses, and antidegradation cannot be assured, the certification must be denied.
   Internal coordination among various DEQ programs is frequently required to make informed determinations about potential impacts and avoidance. This coordination occurs between DEQ 401 and various water quality programs (e.g., TMDL Basin Coordinators, Underground Injection Control, Stormwater, Groundwater); Land Quality (e.g., Solid Waste, Cleanup); Compliance and Enforcement; Business Office; Laboratory; and other programs.
8. The  401 WQC Evaluation and Findings Checklist summarizes the above steps as well as other considerations required by the Clean Water Act and Oregon Revised Statutes and Administrative Rules that must be met before a decision can be issued.
   

 

​Projects must demonstrate compliance with:

1. Clean Water Act and related Oregon Administrative Rules
• CWA Section 301. Applicable effluent limitations
• CWA Section 302. Water quality-related effluent limitations
• CWA Section 303. Water quality standards and implementation plans
• OAR 340-041-0001 through 0061. Narrative & numeric criteria and anti-degradation
• OAR 340-041-0101 through 0350. Basin-specific criteria
• OAR 340-042-0025 through 0080. EPA approved Total Maximum Daily Loads and TMDL implementation plans 
• CWA Section 306. National standards of performance for new sources
• CWA Section 307. Toxic and pre-treatment effluent standards
2. Oregon Revised Statutes 
• ORS 4648B.005 (10) 
• Water Quality Policies
• Water conservation
• Protect, maintain, and improve water quality for beneficial uses
• No discharge without treatment
• Prevent, abate, or control new and existing pollution
• Cooperate with other agencies to attain these goals
• Definition of waters of the state
• ORS 468B.020
• Pollution prevention:
  Pollution is not a reasonable or natural use of waters
  Prevent new pollution or abate existing pollution
  Use all available and reasonable methods necessary
  
• ORS 468B.025
• Prohibited activities:
  Don't pollute waters or place wastes where they could enter waters and don't discharge anything that would reduce water quality
  Comply with discharge permits   
  Violations are considered a public nuisance
  
3. Oregon Administrative Rules 
• OAR 340-048-0042 
• Certification decision:
  Potential alterations to water quality that would cause or contribute to violation of standards
  Affects to existing and potential beneficial uses of surface and groundwater
  Water quality impacts from activity (use, generation, storage, or disposal of wastes)
  Modifications to water quantity which may affect water quality
  Modifications to groundwater quality which may affect surface water quality
  Water quality impacts from construction of an outfall, intake or other structure
  Water quality impacts from wastewater discharge
  Water quality impacts from construction activities
  Compliance with CWA Section 208 plans (area-wide waste treatment management) 
  

​The Federal agency considering authorization of the action is responsible for determining if a discharge to waters of the US will result and then advising the applicant to obtain 401 WQC from DEQ. In most cases, this is USACE, who has authority to implement Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act. USACE 404 permits authorized discharge of fill, which is defined in discussions in the Federal Register Volume 67 Number 90, 2002. USACE will also determine whether the subject waterway or wetland is waters of the US. USACE jurisdiction also includes waterways and wetlands which are tributary to or adjacent to waters of the U.S.

​

DEQ will assign projects to one of five tiers, and invoice based on that tier.

• Tier 1 - $1,041
• Tier 2A - $4,521
  
• Tier 2B - $12,468
• Tier 3 - $18,313
• Tier 4 - $14,440 per month

OAR 340-048-0055 contains the updated fee schedule for certifications.

Under Oregon's laws relating to certification under CWA Section 401, DEQ is required to either grant or deny certification. Under the Clean Water Act, DEQ must act on a request for Section 401 certification within one year. Typically, DEQ will deny certification if information needed to process the application for certification is not provided or not provided in a timely manner.

Projects involving fill or removal activities without a 401 certification may still be liable under Oregon Revised Statutes 468B.025 for causing pollution, placing wastes, (including soils or excavated materials) in a location where they likely to escape or be carried into waters of the state, or violating Oregon's water quality standards as set out in Oregon Administrative Rules, Chapter 340, Division 41. The water quality standard of most concern in this situation is turbidity. That standard typically limits turbidity to an increase of no more than 10 percent above background immediately above the discharge. OAR 340-041-0036. A Section 401 certificate may authorize a short term exceedance of this standard in specified situations involving dredging and construction. In the absence of such a provision in the certificate, the operation must not exceed the 10% limit.

​The applicant did not submit required Water Quality Specific Information or an approved Land Use Compatibility Statement (LUCS). An application cannot be considered complete without these.

The applicant assumed that USACE or DSL sent DEQ the application materials. Although some application information may be available from DSL or USACE, the applicant is responsible for submitting all pertinent materials to DEQ for consideration during the 401 WQC evaluation.

​​​​The 401 Program uses buffers to attain the reasonable assurances needed to ensure a project will meet state water quality standards. The buffer concept is a widespread tool used across many agencies and municipalities nationwide to aid in the protection of natural resources, and is one component of the review for a project requiring a 401 water quality certification (WQC). This concept is also incorporated into the conditions of the 401 WQC, and once issued, must be adhered to as indicated in the site plans.

The framework for this buffer is consistent with management goals of partner agencies like ODFW (see OAR 635-430-0375(12)), as well as with the DEQ Stormwater Program, which has the same 50' buffer requirement in the 1200-C Construction Stormwater Permit. Similar to the 1200-C Permit, EPA has a set of buffer requirements in Appendix G of their 2017 Construction General Permit. Additionally, Oregon's Department of Land Conservation and Development (DLCD) has developed Statewide Land Use Planning Goals, which include protecting riparian corridors. Collectively, these concepts complement the 401 Program's decision to adopt the 50' buffer as a tool for minimizing degradation, and assuring state water quality standards will be met.

The 401 Program recommends inclusion of all wetland delineations on the construction design plans, so it is clear where impacts are anticipated to occur, and avoidance will be maximized. If there are areas where a 50’ buffer is to be altered, degraded, or minimized, then compensation is necessary to retain the assurances needed to issue a certification. In these cases, providing enhanced buffers can serve as a substitute, as well as providing buffers greater than 50’ in other areas of a project, where there are fewer development constrictions.

A land use compatibility statement (LUCS) is a form providing a local government's determination of a proposed activity's compatibility with Statewide Planning Goals. A LUCS form is a required element for a 401 application for certification (OAR Chapter 340 Division 048), and is used to fulfill requirements of OAR Chapter 340 Division 018 which requires certification of water quality standards for federal permits and licenses to adhere to local land use comprehensive plans, which implement the Oregon's Statewide Planning Goals including Goal 6: Air, Water and Land Resources Quality. Projects which are incompatible with the acknowledged comprehensive plan cannot be processed, and conditional approvals requiring additional discretionary analyses are not acceptable. DEQ has developed a general LUCS which is an acceptable form for providing this documentation to the 401 Program, in addition to the relevant section of the joint permit application.​​