Section 401 of the federal Clean Water Act gives states and tribes the authority to issue Water Quality Certifications. A WQC is required for any project that needs a federal permit and may discharge into waters of the United States, which can include wetlands. The WQC provides documentation that the project will meet applicable state water quality standards. Oregon water quality standards define:
- A waterbody's designated use
- Pollutant limits that will protect each designated use of a waterbody
- Policies to ensure that existing water uses will not be degraded by pollutant discharges
DEQ's 401 program has two components, the Dredge and Fill subprogram and the Hydropower subprogram. The Dredge and Fill subprogram is relevant to housing projects.
The Dredge-Fill subprogram reviews water quality impacts for projects that need a Section 404 permit from the U.S. Army Corps of Engineers. A Section 404 permit is required when a project fills federally regulated waters, including wetlands. Any housing project that affects regulated waters may need both a Section 404 permit from the Army Corps and a DEQ 401 WQC. DEQ must issue the certification before the Corps can issue the federal permit.
Contact the 401 Program early in the design phase and after contacting the Army Corps.
This is typically when plans are about 30% complete. The application review includes a review of post-construction stormwater management from new and redeveloped impervious surfaces for the full life of that stormwater system. The 401 program also performs site inspections during and after construction.
Certification process
There are two types of certification:
- Expedited - for many projects using an Army Corps Nationwide Permit
- Standard - for projects using a Standard Individual Permit from the Corps
Applying for an expedited Water Quality Certification
- Step 1: Submit two forms through the "(401) Dredge-Fill Certification Application" template in Your DEQ Online: The Joint Permit Application or USACE Pre-Construction Notification Form, and the DEQ Request for Certification Form.
- Step 2: DEQ will review your application for completeness and assign a review fee based on your project's tier. You must pay the fee within 30 days of receiving the invoice.
Applying for a Standard Water Quality Certification
- Step 1: At least 30 days before submitting your application, submit a Pre-filing Meeting Request Form through the "(401) Dredge-Fill Supporting Materials" template in Your DEQ Online.
- Step 2: Submit two forms through the "(401) Dredge-Fill Certification Application" template in Your DEQ Online: The Joint Permit Application or Army Corps Pre-Construction Notification Form, and the DEQ Request for Certification Form.
- Step 3: DEQ will review your application for completeness and assign a review fee based on your project's tier. You must pay the fee within 30 days of receiving the invoice.
- Step 4: DEQ will issue a public notice either jointly with the Corps or independently.
A complete 401 WQC application should include:
- A federal permit application
- A DEQ 401 Request for Certification form
- An affirmative Land Use Compatibility Statement (LUCS) from local jurisdiction
- Evidence that the project will meet state water quality standards and designated beneficial uses
- A post-construction stormwater management plan for projects creating new impervious surfaces
Review fees are based on project complexity. Projects are assigned a tier from Tier 1 (least complex) to Tier 4 (most complex). DEQ has up to 180 days (six months) to review a 401 WQC application. This timeline is set by EPA's 2023 401 Rule.