Oregon Department of Environmental Quality
401 Water Quality
In addition to all USACE permit conditions and regional permit conditions, the following 401 Water Quality Certification conditions apply to all Nationwide Permit categories certified or partially certified Additional 401 Water Quality Certification category specific conditions follow, which must also be complied with as applicable.
1) Turbidity: All Permittees must implement all reasonably availably technological controls and management practices to meet the standard rule of no more than a 10 percent increase in project caused turbidity above background levels. However, if all reasonably available controls and practices are implemented by a permittee, turbidity exceedances of more than 10 percent above background are allowed for limited times depending on the severity of the increase, as specified in this condition.
a. Monitoring and Compliance Requirements: Permittee must monitor and record in a daily log stream turbidity levels during work below ordinary high water, compare turbidity caused by authorization actions to background levels, and adapt activities to minimize project-caused turbidity. Required monitoring steps include:
i. Identify two monitoring locations:
A. Background location: A relatively undisturbed location, approximately 100 feet upcurrent from the disturbing activity; and,
B. Compliance location: A location downcurrent from the disturbing activity, at approximately mid-depth, within any visible plume, at the distance that corresponds to the size of the waterbody where work is taking place as listed on the table below:
WETTED STREAM WIDTH
Up to 30 feet
>30 feet to 100 feet
>100 feet to 200 feet
LAKE, POND RESERVOIR
Lesser of 100 feet or
Maximum surface dimension
ii. Determine Compliance:
A. At the start of work, measure turbidity at both locations and record in the daily log date, time, location, tidal stage (if waterbody is tidally influenced), and turbidity levels at each point and comparison. Permittee must also record in the daily log all controls and practices implemented at the start of the work.
B. During work, measure turbidity at both locations at the frequency directed in the tables below and record in the daily log date, time, location, tidal stage (if waterbody is tidally influenced), and turbidity measurements.
C. Turbidity measurements must be representative of stream turbidity when the activity is being conducted. Measurements cannot be taken during a cessation of activity.
D. If project caused turbidity is elevated above background, Permittee must implement additional controls and practices and monitor both points again as described below for either monitoring method. A description of the additional controls and the date, time, and location where they are implemented must be recorded in the daily log:
MONITORING WITH A TURBIDIMETER
ACTION REQUIRED AT 1ST
ACTION REQUIRED AT 2ND
0 to 5 NTU above background
Continue to monitor every 4 hours
Continue to monitor every 4 hours
5 to 29 NTU above background
Modify controls & continue to
Monitor every 4 hours
Stop work after 8 hours at 5-29
NTU above background
30 to 49 NTU above
Modify controls & continue to
Monitor every 2 hours
Stop work after 2 confirmed hours
At 30-49 NTU above background
50 NTU or more above
No plume observed
Continue to monitor every 4 hours
Continue to monitor every 4 hours
Plume observed within compliance distance
Modify controls & continue to
Monitor every 4 hours
Stop work after 8 hours with an observed plume within compliance
Plume observed beyond
*Note: Monitoring visually may require stopping work as soon as the visual plume exceeds the waterbody specific compliance distance. However, using a turbidimeter can allow work to continue based on more precise determination of the severity of the turbidity increase over time.
iii. Work must stop immediately for the remainder of the 24-hour period if:
A. A visible turbidity plume extends beyond the compliance distance; or,
B. Turbidity is measured at the compliance point at:
I. 50 NTU or more over background at any time;
II. 30 NTU over background for 2 hours; or
III. 5-29 NTU over background for 8 hours.
iv. Work may continue if no visible plume is observed, turbidity measured at the compliance point is no more than 0-5 NTU above
background, or additional control measures can be applied to keep the visible plume within the compliance distance, measured turbidity ranges, and durations listed in the tables above.
b. Turbidity Control Measures - The permittee must implement all reasonably available controls and practices to minimize turbidity during in-water work, which may include, but are not limited to:
i. Schedule, sequence or phase work activities so as to minimize in-water disturbance and duration of activities below ordinary high water;
ii. Install and maintain containment measures to prevent erosion of upland material to waterways and wetlands, isolate work areas from flowing waters, and prevent suspension of in-stream sediments to the maximum extent practicable;
iii. Apply control measures for all in-stream digging, including but not limited to: employing an experienced equipment operator; not dumping partial or full buckets of material back into the wetted stream; adjusting the volume, speed, or both of loads or hydraulic suction equipment; or by using a closed-lipped environmental bucket;
iv. Limit the number and location of stream crossing events. If equipment must cross a waterway, establish temporary crossing sites at an area with stable banks, where the least vegetation disturbance will occur, shortest distance across water, oriented perpendicular to the stream, and supplement with clean gravel or other temporary methods as appropriate;
v. Place excavated, disturbed, and stockpiled material so that it is isolated from the edge of waterways and wetlands and not allowed to enter waters of the state uncontrolled; and
vi. Apply other effective turbidity control techniques, such as those in Appendix D and throughout DEQ’s Oregon Sediment and Erosion Control Manual, April 2005, http://www.deq.state.or.us/wq/stormwater/docs/escmanual/appxd.pdf.
c. Reporting: Copies of daily logs for turbidity monitoring must be made available to DEQ and other regulatory agencies upon request. The log must include:
i. Background NTUs or observation, compliance point NTUs or observation, comparison of the points in NTUs or narrative, and location, time, date, and tidal stage (if applicable) for each reading or observation.
ii. A narrative discussing all exceedances, controls applied and their effectiveness, subsequent monitoring, work stoppages, and any other actions taken.
2) Stormwater Discharge Pollution Prevention: All projects that involve land disturbance or impervious surfaces must implement prevention or control measures to avoid discharge of pollutants in stormwater runoff to waters of the state.
a. For land disturbances during construction, the permittee must obtain and implement permits where required (see: http://www.deq.state.or.us/wq/stormwater/construction.htm) and follow DEQ’s Oregon Sediment and Erosion Control Manual, April 2005 (or most current version), http://www.deq.state.or.us/wq/stormwater/docs/escmanual/appxd.pdf.
b. Following construction, prevention or treatment of on-going stormwater runoff from impervious surfaces must be provided (including but not limited to NWP categories 3, 12, 14, 15, 28, 29, 31, 32, 36, 39, 42, 43, and 51). DEQ encourages prevention of discharge by managing stormwater on site through Low Impact Development principles and other prevention techniques. Assistance in developing an approvable stormwater management plan is available in DEQ’s Stormwater Management Plan Submission Guidelines for Removal/Fill Permit Applications Which Involve Impervious Surfaces, January 2012 (or most current version), available at: http://www.deq.state.or.us/wq/sec401cert/docs/stormwaterGuidlines.pdf.
c. In lieu of a complete stormwater management plan, the applicant may submit:
i. Documentation of acceptance of the stormwater into a DEQ permitted National Pollutant Discharge Elimination Strategy (NPDES) Phase I or II Municipal Separate Storm Sewer System (MS4); or
ii. Reference to implementation of a programmatic process developed to achieve these expectations, and acknowledged by DEQ as adequately addressing pollution control or reduction through basin-wide post-construction stormwater management practices.
3) Vegetation Protection and Restoration: Riparian, wetland, and in-water vegetation in the authorized project area must be protected from unnecessary disturbance to the maximum extent practicable through methods including:
a. Minimization of project and impact footprint;
b. Designation of staging areas and access points in open, upland areas;
c. Fencing or other barriers demarking construction areas;
d. Use of alternative equipment (e.g., spider hoe or crane); and,
e. Replacement - If authorized work results in unavoidable vegetative disturbance that has not been accounted for in planned mitigation actions; riparian, wetland and in-water vegetation must be successfully reestablished to a degree that it functions (for water quality purposes) at least as well as it did before the disturbance. The vegetation must be reestablished by the completion of authorized work.
4) Land Use Compatibility Statement: In accordance with OAR 340-048-0020(2) (i), each permittee must submit findings prepared by the local land use jurisdiction that demonstrates the activity’s compliance with the local comprehensive plan. Such findings can be submitted using Block 7 of the USACE & DSL Joint Permit Application, signed by the appropriate local official and indicating:
a. “This project is consistent with the comprehensive plan and land use regulations;” or,
b. “This project will be consistent with the comprehensive plan and land use regulations when the following local approvals are obtained,” accompanied by the obtained local approvals.
c. Rarely, such as for federal projects on federal land, “this project is not regulated by the comprehensive plan” will be acceptable.
5) A copy of all applicable 401 WQC conditions must be kept on the job site and readily available for reference by the permittee, their contractors, DEQ, USACE, NMFS, USFWS, DSL, ODFW, and other appropriate state and local government inspectors.
6) DEQ may modify or revoke these 401 WQC conditions, in accordance with OAR 340-048-0050, in the event that project activities are having a significant adverse impact on state water quality or beneficial uses.
Category Specific Conditions
In addition to all national and regional conditions of the USACE permit and the 401 Water Quality Certification general conditions above, the following conditions apply to the noted specific categories of authorized activities.
NWP 7 – Outfall Structures and Associated Intake Structures:
7.1) The following actions are denied certification:
a. Discharge outfalls that are not subject to an NPDES permit; and,
b. Outfalls that discharge stormwater without pollutant removal demonstrated to meet water quality standards prior to discharge to waters of the state.
7.2) If a permittee cannot obtain an NPDES permit or submit an approvable stormwater management plan per DEQ’s Guidelines (at:
http://www.deq.state.or.us/wq/sec401cert/docs/stormwaterGuidlines.pdf), the permittee must submit complete project information and water quality impacts analysis directly to DEQ in order to undergo individual 401 WQC evaluation and fulfill public participation requirements.
NWP 12 – Utility Lines:
12. 1) For proposals that include directionally-bored stream or wetland crossings:
a. All drilling equipment, drill recovery and recycling pits, and any waste or spoil produced, must be completely isolated, recovered, then recycled or disposed of to prevent entry into waters of the state. Recycling using a tank instead of drill recovery/recycling pits is preferable;
b. In the event that drilling fluids enter a water of the state, the equipment operator must stop work, immediately initiate containment measures and report the spill to the Oregon Emergency Response System (OERS) at 800-452-0311.
c. Prior to cleaning up drilling fluids spilled into waters of the state, cleanup plans must be submitted and approved by the regulatory agencies; and
d. An adequate supply of materials needed to control erosion and to contain drilling fluids must be maintained at the project construction site and deployed as necessary.
NWP 13 – Bank Stabilization:
13.1) Projects that do not include bioengineering are denied certification, unless a registered professional engineer provides a written statement that non-bioengineered solutions are the only means to protect an existing transportation-related structure.
13.2) To apply for certification for a project without bioengineering, the permittee must submit complete project information and water quality impacts analysis directly to DEQ in order to undergo individual 401 WQC evaluation and fulfill public participation requirements.
NWP 14 – Linear Transportation:
14.1) For projects that include bank stabilization, bioengineering must be a component of the project, unless a registered professional engineer provides a written statement that non-bioengineered solutions are the only means to protect an existing transportation related structure.
14.2) To apply for certification for a project without bioengineering, the permittee must submit complete project information and water quality impacts analysis directly to DEQ in order to undergo individual 401 WQC evaluation and fulfill public participation requirements.
NWP 16 - Return Water from Contained Upland Disposal Areas: Water quality criteria and guidance values for toxics, per OAR 340-041-0033, are available in Tables 20, 33A, 33B, and 33C at: http://www.deq.state.or.us/wq/standards/toxics.htm#Cur.
16.1) Return to waters of the state of water removed with contaminated dredged material that exceeds a chronic or acute toxicity water quality standard is denied certification.
16.2) Water removed with contaminated dredged material that could or does exceed chronic water quality criteria must be contained and disposed of at an appropriately sized and sealed upland facility by evaporation or infiltration.
16.3) If a Modified Elutriate Test (MET) is performed for the known contaminants of concern (CoCs) and CoC concentrations are below DEQ chronic water quality criteria, return water discharge is not limited.
a. The MET must be performed before dredging.
b. DEQ must approve the list of CoCs and analytical method prior to the permittee performing the MET.
c. DEQ must review the results and provide approval of discharge from return water, in writing, prior to dredging.
NWP 20 – Response Operations for Oil and Hazardous Waste:
20.1) Coordination with DEQ’s Emergency Response program is required. See: http://www.deq.state.or.us/lq/cu/emergency/index.htm.
NWP 22 – Removal of Vessels:
22.1) Coordination with DEQ’s Emergency Response program is required. See:
NWP 31 – Maintenance of Existing Flood Control Facilities:
31.1) Projects at existing facilities in streams with Temperature TMDLs and that propose net permanent, riparian vegetation removal are denied certification.
31.2) To apply for certification for projects where riparian vegetation removal is unavoidable and vegetation cannot be re-established, the permittee must submit complete project information and water quality impacts analysis directly to DEQ in order to undergo individual 401 WQC evaluation and fulfill public participation requirements.
NWP 38 – Cleanup of Hazardous and Toxic Waste:
38.1) For removal of contaminated material from waters, dredging method is limited to diver assisted hydraulic suction, hydraulic suction, closed-lipped environmental bucket, or excavation in the dry.
a. For in-water isolation measures, the permittee is referred to Appendix D of DEQ’s Oregon Erosion and Sediment Control Manual, April 2005 (or most current version), at: http://www.deq.state.or.us/wq/stormwater/docs/escmanual/appxd.pdf.
38.2) Discharge to waters resulting from dewatering during dredging or release of return water from an upland facility is prohibited except as provided below.
a. All water removed with sediment must be contained and disposed of at an appropriately sized and sealed upland facility by evaporation or infiltration; or,
b. A Modified Elutriate Test (MET) may be performed for the known CoCs and if CoC concentrations are below DEQ chronic water quality criteria, return water discharge is not limited.
i. The MET must be performed before dredging.
ii.DEQ must approve the list of CoCs and analytical method prior to the permittee performing the MET.
iii. DEQ must review the results and provide approval of discharge from dewatering and return water in writing prior to dredging.
38.3) Dredged material must be disposed of in compliance with DEQ Rules governing Hazardous Waste (see: http://www.deq.state.or.us/lq/hw/hwmanagement.htm) or Solid Waste (see: http://www.deq.state.or.us/lq/sw/index.htm).
38.4) The new in-water surface must be managed to prevent exposure or mobilization of contaminants.
NWP 41 - Reshaping Existing Drainage Ditches:
41.1) To the extent practicable, permittees must work from only one bank in order to minimize disturbance to existing vegetation, preferably the bank with the least existing vegetation;
41.2) Following authorized work, permittee must establish in-stream and riparian vegetation on reshaped channels and side-channels using native plant species wherever practicable. Plantings must be targeted to address water quality improvement (e.g., provide shade to water to reduce temperature or provide bank stability through root systems to limit sediment inputs). Planting options may include clustering or vegetating only one side of a channel, preferably the side which provides maximum shade.
NWP 42 – Recreational Facilities:
42.1) For facilities that include turf maintenance actions, the permittee must develop and implement an Integrated Pest Management Plan (IPM) that describes pest prevention, monitoring and control techniques with a focus on prevention of chemical and nutrient inputs to waters of the state, including maintenance of adequate buffers for pesticide application near salmonid streams, or coverage under an NPDES permit, if required (information is available at: http://www.deq.state.or.us/wq/wqpermit/pesticides.htm).
NWP 43 – Stormwater Management Facilities:
43.1) Projects that propose the following elements are denied certification:
a. In-stream stormwater facilities;
b. Discharge outfalls not subject to an NPDES permit; and,
c. Proposals that do not demonstrate pollutant removal to meet water quality standards prior to discharge to waters of the state.
43.2) To apply for certification for a project with in-stream stormwater facilities, without an NPDES permit, or without submittal of an approvable stormwater management plan per DEQ’s Guidelines (at: http://www.deq.state.or.us/wq/sec401cert/docs/stormwaterGuidlines.pdf), the permittee must submit complete project information and water quality impacts analysis directly to DEQ in order to undergo individual 401 WQC evaluation and fulfill public participation requirements.
NWP 44 – Mining Activities:
44.1) Projects that do not obtain an NPDES 700-PM or Individual permit are denied certification.
44.2) To apply for certification for a project without an NPDES permit, the permittee must submit complete project information and water quality impacts analysis directly to DEQ in order to undergo individual 401 WQC evaluation and fulfill public participation requirements.
NWP 51 – Land-Based Renewable Energy Generation Facilities:
51.1) For associated utility lines with directionally-bored stream or wetland crossings proposed, condition 12.1) must be applied.