The 401 Water Quality Certification program reviews and evaluates the water quality impacts of projects which require a federal permit or license to conduct any activity that may result in a discharge (including dredge and fill material) in waters of the United States under Section 401 of the Clean Water Act.
Section 401 of the CWA gives states and tribes the authority to issue state water quality certifications for projects that require a federal license or permit that may result in a discharge to waters of the US. The certification states that the discharge will comply with applicable provisions of the CWA, including state water quality standards. Oregon’s water quality standards specify the designated use of a waterbody (e.g., for water supply or recreation), pollutant limits necessary to protect the designated use (in the form of numeric or narrative criteria), and policies to ensure that existing water uses will not be degraded by pollutant discharges.
The federal permit or license cannot be issued until a 401 WQC is received.
Regulatory authority is given to states and tribes directly through Section 401 of the CWA. Oregon Revised Statutes (ORS) 468 and 468B contain the codified body of statutory law that pertains to environmental quality and water quality for DEQ. The Oregon Administrative Rules (OAR) builds upon the ORS. OAR Chapter 340 Division 48, provides information specific to the 401 WQC program. State water quality standards are outlined in OAR Chapter 340 Division 41. Projects authorized under a 401 WQC must meet these standards.
DEQ works closely with the U.S. Army Corps of Engineers. The USACE determines whether a project will be reviewed under an Individual, Regional General Permit or Nationwide Permit.
Individual Permits are for projects that have more than minimal impacts and have both general and project-specific conditions to ensure that the project can meet State water quality standards. These projects are assessed a review fee based on project complexity and anticipated review time.
Nationwide Permits are for projects that have minimal impacts and that qualify for the Nationwide 401 Water Quality Certification. There is a fee of $985 for this Nationwide certification. Projects that have new or an increase in impervious surface must submit a post-construction stormwater management plan for review and approval from DEQ prior to the start of the project. Additionally, a Land Use Compatibility Statement (LUCS) is required to be submitted.
Reducing impacts to water quality
The 401 Water Quality Certification has several tools available to ensure that a project meets state water quality standards. The Individual 401 WQC can be drafted to include conditions that require the applicant to follow certain best management practices or perform monitoring to ensure that water quality standards are met. If there are unavoidable impacts to waterways and/or wetlands, projects reviewed under both Individual and Nationwide Permits are also required to provide mitigation for the loss of water quality functions. Applicants may either submit a mitigation plan or purchase mitigation credits from an approved mitigation bank.