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.
DEQ expects to collaborate with federal agencies and participate in their rulemaking process to support development of a new definition of WOTUS that will include protections for vital water resources that support public health, environmental protection, agricultural activity, and economic growth. DEQ supports the agencies’ goal to seek out diverse perspectives and craft a durable definition of WOTUS based on the best available science and an inclusive foundation of engagement with all stakeholders.
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.
Your DEQ Online
DEQ has a new 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.
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.
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.
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 and RGP-6.
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.