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
- Submit an MAO application to: email@example.com. The application should include:
- Joint Permit Application
- USACE Approved Jurisdictional Determination
- Local land use approval (Section 11 of the JPA)
- Post-construction Stormwater Management Plan if impervious surface is proposed in the project design
- 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.
- 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.
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.