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Section 401 Dredge and Fill Certification

Program updates

401 Final Rule - updated Nov. 27, 2023

The EPA announced the final 401 improvement rule on Sept. 14, 2023 which was published in the Federal Register, initiating the public comment period from Sept. 27, 2023 to Nov. 27, 2023. The final 2023 Rule will take effect on Nov. 27, 2023.

As of Nov. 27, 2023, all applications for a Standard Individual 401 Certification are required to submit to DEQ a pre-filing meeting request at least 30-days prior to a request for certification. The pre-filing meeting request requirement is waived for projects that quality for a Nationwide Permit with U.S. Army Corps of Engineers and do not need to submit a pre-filing meeting request to DEQ for the 401 water quality certification.

Refer to the 401 Application Process page for updates on DEQ's 401 dredge and fill application process in response to EPA's final 401 rule. The pre-filing meeting request form can be found on DEQ's 401 Resources page and should be submitted through Your DEQ Online. Please contact the 401 Program with any questions regarding these requirements or the submittal process using Your DEQ Online.

​In response to the Supreme Court ruling in Sackett v. Environmental Protection Agency, the EPA and USACE issued a final rule regarding WOTUS on Aug. 29, 2023. The conforming rule, "Revised Definition of 'Waters of the United States'; Conforming," published in the Federal Register became effective on Sept. 8, 2023. More information can be found on EPA's Waters of the United States web page.  

Longstanding state law-based protections of waters of the state remain in place and DEQ will continue to use available state-based regulatory tools to ensure protections. DEQ will continue to implement regulatory programs and issue water quality certifications for projects seeking federal CWA 404 permits.

Given the prohibition on causing pollution or discharging waste to waters of the state in ORS 468B.025, and to ensure the protection of waters of the state is consistent with the Oregon Environmental Protection Act at ORS 468.149, DEQ offers a Mutual Agreement and Order (MAO) for projects which would impact waters of the state, but no longer impact federally jurisdictional waters.

State water quality Mutual Agreement and Order process

Given the change in federal law, projects impacting only state jurisdictional wetlands and waters and undergoing a removal-fill permit review with the Oregon Department of State Lands should apply for an MAO with DEQ in lieu of a 401 water quality certification.

Oregon Administrative Rule 340-045-0062(1) adopted pursuant to ORS 468.020, states:

 “The Director may issue a mutual agreement and order (MAO) in lieu of or in addition to an NPDES permit or WPCF permit where the MAO is part of an enforcement action, for disposal of wastewater associated with the cleanup of a spill, or for an activity that does not lend itself to the normal permitting process or permit term."

Water Quality MAO application steps

  1. Submit an MAO application to: 401applications@deq.oregon.gov. The application should include:
    1. Joint Permit Application
    2. USACE Approved Jurisdictional Determination
    3. Local land use approval (Section 11 of the JPA)
    4. Post-construction Stormwater Management Plan if impervious surface is proposed in the project design

  2. Public notice: A 30-day public notice of the draft decision document will be issued. This will occur at the end of the technical review once the items below have been addressed. Any public comments related to water quality may be brought to the applicant for response. 
     
  3. DEQ staff will review project applications, applicant information and public comment to evaluate impacts and determine whether the project is consistent with water quality standards. DEQ has up to one year to issue a decision.
​​June 28, 2023
In response to the Supreme Court ruling in Sackett v. Environmental Protection Agency, the agencies are expected to issue a final rule regarding WOTUS by Sept. 1, 2023.​

September 2021
​​In response to a court order, the Environmental Protection Agency and US Army Corps of Engineers (the agencies) halted the Navigable Waters Protection Rule that was implemented in 2020. As of September 2021, the agencies are interpreting “waters of the United States” (WOTUS) consistent with the pre-2015 Clean Water Act regulatory framework, previous court guidance and implementation protocols. The agencies are in the process of developing a new regulatory definition of WOTUS. More information on the agencies’ approach for redefining WOTUS and current status of rulemaking can be found on EPA's web page.  

In response to the changing definition for WOTUS, DEQ will adapt its regulatory approaches where necessary, while continuing to use available state-based regulatory tools to ensure protections remain in place for waters of the state. DEQ will continue to implement regulatory programs and issue water quality certifications for projects seeking federal CWA 404 permits, and remains committed to improving Oregon’s water quality, and ensuring the protection of waters of the state as intended under Oregon’s existing water quality programs, and consistent with the Oregon Environmental Protection Act. 

​Aug. 9, 2022  
The EPA Administrator signed a new proposed 401 improvement rule on June 1, 2022, which was published in the Federal Register, initiating the public comment period from June 9, 2022 to Aug. 8, 2022. At this time, the 2020 Rule remains in effect and all applicants for new 401 certification are required to submit to DEQ a pre-filing meeting request at least 30-days prior to a request for certification.​

June 9, 2022
The EPA  Administrator signed a new proposed 401 rule, published in the Federal Register, initiating the public comment period which closes on Aug. 8, 2022.

April 6, 2022
The Supreme Court of the United States issued a decision reinstating the 2020 EPA 401 rule. DEQ returned to implementing all requirements and procedures of the 2020 EPA 401 Rule until further notice. As of April 7, 2022, all applicants for new 401 certification are required to submit to DEQ a pre-filing meeting request at least 30-days prior to a request for certification. Forms for both of these requests can be found on DEQ's 401 Resources page and should be submitted through Your DEQ Online. Please contact the 401 Program with any questions regarding these requirements or the submittal process using Your DEQ Online.

Oct. 21, 2021
The U.S. District Court for the Northern District of California issued an order which vacated and remanded the EPA's 2020 Clean Water Act Section 401 Certification Rule. This decision applied nationwide and required a temporary return to the EPA's 1971 rule. ​

Program overview 

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.

Permit types

​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. 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 is required to be submitted.  

Regional General Permits are developed for projects with recurring activities at a regional level that have impacts to a specific geographic area. Each RGP has specific terms and conditions, all of which must be met for project-specific actions to be verified. Current RGPs can be found on the USACE Portland District website. DEQ currently has 401 pre-approval in place for RGP-4.       

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. A WQC includes conditions that require the applicant to follow certain best management practices and perform monitoring to ensure that water quality standards are met. If there are unavoidable impacts to waterways and/or wetlands, projects are 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.

Regulatory authority

Regulatory authority is given to states and tribes directly through Section 401 of the CWA. Oregon Revised Statutes 468 and 468B contain the codified body of statutory law that pertains to environmental quality and water quality for DEQ. The Oregon Administrative Rules 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.  

Program contacts

Haley Teach
401 Program Coordinator 
503-702-9753

Amber Clark
Individual Certifications for Western Region and Eastern Region

Shelley Tattam
Individual Certifications for Northwest Region

Delia Negru
Nationwide certifications statewide
503-593-2493

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Your DEQ Online DEQ's online permitting portal

Applicants for 401 Water Quality Certifications now apply through Your DEQ Online. All application materials must be submitted through Your DEQ Online.

Visit Your DEQ Online Help page to learn more, access training materials and see the upcoming schedule of live training webinars on how to register with YDO.