As of July 31, DEQ has instituted a 401 water quality certification fee structure for projects requiring a Section 401 Removal/Fill Certification. Previously, DEQ based fees on the amount of material removed or filled; fees are now based more closely with staff labor costs.
Since 2004, projects below a certain removal/fill threshold and certain activities were exempt from fees. In 2009, the Oregon Legislature passed law that eliminated fee exemptions. The new fee structure will help improve customer service and increase efficiency for applicants.
While developing the new fee structure, DEQ received input from and advisory committee that included representatives from the federal government, state government, local governments, environmental groups and trade associations.
DEQ will assign projects to one of five tiers, and invoice based on that tier.
- Tier 1 - $985
- Tier 2A - $4,390
- Tier 2B - $12,105
- Tier 3 - $17,780
- Tier 4 - $14,020 per month
OAR 340-048-0055 contains the updated fee schedule for certifications.
If your project is in DEQ’s Independent or Voluntary Cleanup Program, DEQ does not charge fees for UICs. If the project is not in the Voluntary Cleanup Program, the fee is $134 per group of UICs used for injection.
Requests for water quality (Section 401) certification of permits issued by the US Army Corps of Engineers for dredged or fill materials under Clean Water Section 404 are processed in conjunction with the federal permitting process and are based on the Corps's public notice. Typically, these Section 401 certifications are issued within a matter of months, concurrently with Section 404 permit. But certification may be delayed or even denied if an applicant fails to provide additional information as requested by DEQ or fails to provide the information in a timely manner.
Under Oregon's laws relating to certification under CWA Section 401, DEQ is required to either grant or deny certification. Accordingly, it has not been typical for DEQ to actively waive certification. Under the Clean Water Act, however, the DEQ must act on a request for Section 401 certification within one year or the certification requirement is waived. Typically, DEQ will deny certification if information needed to process the application for certification is not provided or not provided in a timely manner. But on rare occasions, this statutory deadline has been inadvertently missed or other circumstances have resulted in a waiver of certification.
Applicants for certification should note that if certification is waived for any reason, a person involved in fill or removal activities may still 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 or if certification is waived, the operation must not exceed the 10% limit.
How do I know at which tier DEQ will review my project?
Generally, tier 1 projects are small and less complicated and require minimal review time. Tier 4 projects are generally large and complex projects. DEQ typically reviews one or two Tier 4 type projects per year. DEQ based tiers on estimated hours of staff review time, and several other factors including:
- Water quality impacts
- Level of required public participation
- Level of agency coordination
- Post construction stormwater management
- Level of technical assistance
- Compensatory mitigation requirements
- Sediment evaluation framework
- Alternative analysis and site visits
- Level of project documentation (evaluations and findings)
- Review of National Environmental Policy Act documentation, including an Environmental
- Assessment and/or Environmental Impact Statement
DEQ staff will perform an initial review of proposed projects during the 30-day U.S. Army Corps of Engineers/DEQ public notice period to determine the appropriate tier. DEQ will send an invoice to the applicant when DEQ receives all information necessary to assign a tier.
Sara Christensen, Water Quality Certification Coordinator