Section 401 Removal/Fill Certification - Process

For most projects, submittal of the Joint Permit Application to the US Army Corps of Engineers (USACE) also begins the 401 Water Quality Certification (WQC) process. The pathways for the 401 WQC process are described below. Most projects follow Path A. Up to 150 projects annually follow Path C. Projects which don't require a Joint Permit Application to USACE, but still require a 401 WQC, follow Path B. 

Certification Process 401 Processing Pathways Minimum Information Required Additional 401 Resources

Certification Process

	1.	Request a Pre-Application Meeting with All Pertinent Agencies A pre-application meeting is recommended at the conceptual design stage for novel or complex projects needing removal/fill permits. Time permitting, DEQ will attend to advise applicants on water quality impact reduction, and to respond to process and application questions. Agencies to invite may include: US Army Corps of Engineers (USACE); Oregon Department of State Lands (DSL); Oregon DEQ; National Marine Fisheries Service (NMFS); US Fish and Wildlife Service (USFWS); Oregon Department of Fish and Wildlife (ODFW); Oregon Department of Land Conservation and Development (DLCD); Oregon Water Resources Department (OWRD).
	2.	Submit Joint Permit Application materials to USACE and DSL Joint Permit Application materials and instructions can be found at the USACE and DSL websites. DEQ 401 Guidance is available on DEQ's website. DEQ 401 staff are available, by email or phone, during the detailed design phase of project to answer application and process questions.
	3.	USACE determines the permit type, which determines the 401 WQC pathway Nationwide Permit (NWP) or Regional General Permit (RGP) - Expedited USACE process. Most categories have existing NWP 401 WQC. Individual Permit - USACE publishes a public notice and an Individual 401 WQC must be obtained from DEQ.

[top]

401  Processing Pathways

PATH A		OR	PATH B		OR	PATH C
Nationwide or Regional General Permit 401 Certified			1) Nationwide or Regional General Permit Denied 401 WQC or 2) Other Federal Permit/Action			Individual Permit
4.	If certified under existing 401 (NWP or RGP) If project involves any impervious surface (NWP category #3, 14, 15, 29, 36, 39, 42), submit Post-Construction Stormwater Management Plan (SWMP) to DEQ for approval. If any other certified NWP category, or when no impervious surface is involved, no further action is needed.		4.	NWP category which is denied 401 WQC or when no USACE permit is needed: Submit full application information to DEQ.		4.	Submit full application information to DEQ. USACE publishes 30 day public notice
			5.	DEQ reviews water quality impact information and may request additional information.		5.	DEQ reviews water quality impact information, comments within 30 days, and may request additional information.
			6.	Fee is assessed.		6.	Fee is assessed.
			7.	DEQ conducts 401 Water Quality Certification Evaluation		7.	DEQ conducts 401 Water Quality Certification Evaluation. Public comments are evaluated and incorporated into review.
			8.	DEQ  makes  Findings and prepares a Draft 401 Water Quality Certification decision which is posted for a 35 day public notice.		8.	DEQ makes findings and a 401 Water Quality Certification decision is drafted.
			9.	Public comments are evaluated and incorporated into 401 Water Quality Certification decision.		9.	401 Water Quality Certification decision is sent to USACE and applicant.
			10.	401 Water Quality Certification is finalized and sent to USACE and applicant.

[top]

Minimum Information Required

All projects require submittal of all of the following types of information:

1. Basic Application
2. Water Quality Specific
3. Project Type Specific
4. Mitigation Proposal

Basic Application Information

• Legal name and address of activity owner or operator
• Legal name and address of owner or operators authorized representative
• Names and addresses of contiguous property owners
• Description of existing, and proposed activity's water quality impacts
• Complete written description of activity, including maps, diagrams and other information
• Names of affected waterways, lakes, or other water bodies
• Land Use Compatibility Statement (LUCS)

Submittal of the Joint Permit Application directly to DEQ covers the above information requirements.

LUCS information can be completed using Block 7 of the Joint Permit Application or by submitting DEQ's LUCS Form.

The basic application information is required in all applications per OAR 340-048-0020.

Water Quality Specific Information

Water quality specific information is not typically included in the Joint Permit Application, but is required for DEQ to evaluate potential impacts to water quality and beneficial uses. DEQ will request this information if the applicant has not provided it and will deny 401 WQC if the applicant fails to respond to the information request.

• Demonstration that the activity complies with applicable Clean Water Act provisions (Sections 301, 302, 303, 306 and 307), Oregon Water Quality Standards and other state law requirements
• Copies of environmental information submitted to the federal licensing or permitting agency
• Identification of waterway(s) impacted by the project including wetlands and tributary streams
• Confirm the status of waterways impacted by the project (Integrated Report)
• Identification of potential impact to water quality parameters (Water Quality Standards, 303(d) list, TMDL)
• Evaluation of potential water quality standard violation or contribution to violation
• Identification of measures to prevent or mitigate violations or contributions to violations

The water quality specific information is required in all applications per OAR 340-048-0020.

[top]

Project Specific Information

Project Type	Examples
Wetlands or Minor In-stream Projects
Residential, Commercial, Industrial, Civic Development: Wetland fill or minor stream impacts for culverts for driveways, channel realignment, bridges, etc.	Housing , Businesses, Industry, Airports, Schools
Transportation:	Roads, Bridges, Culverts, Maintenance Activities, Rest Stops, etc.
Recreation Facilities:	Boat Ramps, Residential Docks, Parks, Trails
Utility Work:	Pipelines, Sewer Lines, Cables, Communication, Wave Energy
Wetland Enhancement, Mitigation or Restoration
In-stream Projects
Dredging: Non-Commercial In-stream Sediment Removal (by USACE, public ports, or private entities)	Port berths, Marinas, Channels (including jurisdictional agricultural ditches), Houseboats and Moorages.
Commercial Sand and Gravel Removal	In-Water Extraction from Channel, Bar Scalping, Wet Pit Mining (in floodplain with egress channel or in wetlands)
Non Dredging In-Stream Work	Channel Relocation or Expansion, Fish Passage Improvement
Bank Stabilization & Erosion Control	In-stream Structures, Bank work below Ordinary High Water or Mean High Tide
Gold Mining	Suction dredging which doesnt fit under NPDES 700-PM permit
Dams	Removal, Placement
Ponds	Expansion, in Wetlands, Aquaculture
Outfalls	Industrial or Stormwater with impacts below Ordinary High Water or Mean High Tide
Resource Management or Restoration	Fish Habitat or Stream Restoration

Wetlands or Minor In-stream Projects - Along with basic information, the following may also be required:

• Post-Construction Stormwater Management Plan (SWMP): When soil and vegetation is converted to impervious surface (e.g. roofs, roads, parking lots, sidewalks, bike lanes) stormwater is no longer naturally able to infiltrate, be stored, recharge groundwater or provide base flow in streams.  Runoff from impervious surfaces is generated, picks up pollutants deposited on pavements, and carries them quickly down slope to waters of the state. SWMPs must be developed which demonstrate control of both pollution and high flows (which could cause flooding and erosion) in waters of the state. DEQs SWMP Guidelines provides a checklist of information that must be included in a submittal and resources for preparing the information.
• Integrated Pest Management (IPM): If the proposal involves widespread application of pesticides, herbicides, or fungicides near water (e.g. golf course, playing fields, parks) an Integrated Pest Management plan (IPM), which incorporates limitations on banned or restricted chemicals, is required.

In-stream Projects - Along with basic information, the following may also be required:

• Sediment Evaluation Framework (SEF): Protocols for sediment characterization and chemical analysis has been developed by USACE, EPA, USFWS, DEQ, and others for use in Oregon.  Analysis of sediment which will be disturbed by dredging and that in the newly exposed surface is required. DEQ developed a quick summary of the process and a sampling and analysis plan outline.
• Dredging Method: How will material be removed from in water and transported?  Options include: clamshell, environmental bucket, suction, cutter head suction, hopper, bin barge, etc.
• Disposal Options: Depending on presence and levels of potential contaminants, various re-use or disposal options are available. These include: In-stream placement, confined disposal facility, upland, hazardous waste landfill, etc. If material is unsuitable for placement in-water, DEQ Solid Waste must make a determination regarding the material being clean fill or suitable for beneficial use or issue a Solid Waste Letter of Authorization (SWLA) before material can be disposed in uplands.
• Isolation Measures or other Proposed BMPs: Minimization of impacts to water quality and beneficial uses can effectively be demonstrated through isolation of work areas from the flowing stream. Appendix D of DEQs Erosion and Sediment Control Manual provides accepted isolation methods.
• Elutriate Testing Methods: If water removed with contaminated sediments will be discharged back to a waterway, it is important to know if water quality standards for toxics will be maintained.  Elutriate testing is a  process for determining what levels of chemicals will move from sediment into the water column during sediment disturbances. It is important to understand what chemicals are in the sediment and what levels may be harmful in the water column, and to collect sediment proposed for disturbance as well as water from where the sediment lies.
• Stream Alteration Potential in Response to Sediment Removal – Stream systems are highly dynamic and removal of material from stream beds, bars, and banks can have profound effects on stream condition and functions, including water quality, habitat for aquatic life and human uses of streams. It is important to understand the existing condition and transport potential of a stream and how these might change due to sediment removal. Several agencies have developed a paper on Sediment Removal Considerations specific to Oregon streams. The paper includes recommendations for project design and evaluation considerations and has been reviewed and supported by Oregon’s Independent Multidisciplinary Science Team.

[top]

Mitigation Proposal

A project must be designed first to avoid impacts to waterways and wetlands. If impacts are unavoidable, the design must then minimize impacts as much as possible. Even minimal impacts can disrupt ecosystems and eliminate water quality functions that support beneficial uses. Therefore, a proposal to mitigate all impacts must be submitted. This may be a compensatory wetland mitigation plan or a proposal to replace waterway impairments caused by the project at an equal or better functional capacity. For water quality review, the mitigation proposal must demonstrate replacement of lost water quality functions. For example, nutrient uptake by wetlands or keeping streamside temperatures cool with shading vegetation, must be replaced if wetland s are filled or streamside vegetation is removed. It is important to replace these lost functions in the immediate area of the project impacts, rather than proposing a mitigation project somewhere else.  Depending on the status of the waterway, mitigation which does not replace critical functions or is too far away, may not be acceptable.

Mitigation Resources

• EPA Compensatory Mitigation Requirements
• DSL Mitigation Options
• Federal Interagency Stream Corridor Restoration Manual
• NRCS Stream Restoration Guidance

[top]

Additional Resources

Water Quality

• Water Quality Standards EPA approved narrative and numeric criteria and beneficial uses
• Integrated Report List of impaired waterbodies in Oregon per CWA Section 303(d) and TMDLs
• Stormwater Management Plan (SWMP) PDF - Guidelines with Submission Checklist

Process

• EPA 2010 CWA 401 Handbook PDF
• 401 WQC Evaluation and Findings Checklist PDF
• EPA National Management Measures to Control Nonpoint Source Pollution from Hydromodification
• DSL State Water-related Permits User Guide

Sediment Evaluation Framework

• Sediment Evaluation Framework
• SEF Process Summary PDF
• Sampling and Analysis Plan Outline PDF

Dredged Material Re-Use and Disposal Options Resources

• EPA/USACE Beneficial Use Planning Manual PDF
• EPA/USACE Beneficial Uses of Dredged Material Website
• USACE Summary of Available Guidance and Best Practices for Determining Suitability of Dredge Material for Beneficial Uses PDF
• DEQ Beneficial Use of Solid Waste Information
• USACE Confined Disposal of Dredged Material Engineer Manual 1110-2-5027
• USACE Confined Disposal Facility (CDF) Containment Features: A Summary of Field Experience PDF
• DEQ Solid Waste Letter of Authorization
• DEQ Solid Waste Website

Integrated Pest Management

• IPM Oregon Chapter of the Golf Course Superintendents Association - Offers stewardship Guidelines
• Oregon Department of Agriculture provides a list of salmonid streams requiring buffers for application of certain chemicals
• General Integrated Pest Management Guidelines PDF - Available from Cornell University
• DEQ Toxics Reduction Strategy

[top]

[print version]