Program updates
U.S. Army Corps of Engineers 2026 Nationwide Permits
On Jan. 12, 2026, the U.S. Army Corps of Engineers announced the publication of the 2026 nationwide permits in the Federal Register. 56 reissued and one new nationwide permit will take effect on March 15, 2026 and expire on March 15, 2031. The 2021 nationwide permits expire on March 14, 2026.
401 Water Quality Certification fee change
The Environmental Quality Commission adopted rules to increase water quality permit, license and certification fees by up to three percent starting Nov. 1, 2025, for fiscal year 2026, as provided in ORS 468B.051. The amount of the increase may not exceed the anticipated increase in the cost of administering the program or three percent, whichever is lower.
401 Dredge and Fill fees
Mutual Agreement and Order in lieu of a 401 Water Quality Certification
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: 401applications@deq.oregon.gov. 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.
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 $1041 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.