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Clean Water Act Section 401 Final Rule

Portland District
Published Sept. 25, 2020

PUBLIC NOTICE
Clean Water Act
Section 401 Final Rule

The U.S. Army Corps of Engineers, Portland District (Corps) is issuing this Special Public Notice to announce the Clean Water Act Section 401 Certification Rule as it applies to Department of the Army permits for activities in Oregon.

On June 1, 2020, the U.S. Environmental Protection Agency finalized the Clean Water Act Section 401 Certification Rule (40 CFR Part 121) to update and clarify the procedural requirements for water quality certification under Section 401 of the Clean Water Act. Additional information, including the full text of the Final Rule, is available on EPA’s website (www.epa.gov/cwa-401). The Final Rule became effective on September 11, 2020.

1. How does the Final Rule apply to Department of the Army permits?
Under Section 401 of the Clean Water Act, a federal agency, such as the Corps, may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a certifying authority issues a Section 401 water quality certification verifying compliance with existing water quality requirements, the certifying authority waives the certification requirement, or the federal agency determines the certification requirement has been waived. An individual water quality certification or waiver is required for Department of the Army permits that would result in the discharge of dredged or fill material unless the discharge is for an activity where a general water quality certification has already been issued.

2. Who are the certifying authorities for activities in Oregon?
The certifying authority is the agency or tribe responsible for certifying compliance with applicable water quality requirements in accordance with Section 401 of the Clean Water Act. The certifying authorities in Oregon are:

U.S. Environmental Protection Agency, Region 10. EPA is the certifying authority for activities in Indian Country. Indian County includes lands within reservation boundaries, lands held in trust by the Federal Government outside of reservation boundaries, and “In-Lieu” sites (e.g., in-lieu fishing sites along the Columbia River). EPA is also the certifying authority on lands with exclusive Federal jurisdiction (the only such lands in Oregon is the dam at Willamette Falls).

Confederated Tribes of the Umatilla Indian Reservation. The Confederated Tribes of the Umatilla Indian Reservation is the certifying authority for activities on their respective tribal lands.

Confederated Tribes of the Warm Springs Reservation of Oregon. The Confederated Tribes of the Warm Springs Reservation of Oregon is the certifying authority for activities on their respective tribal lands.

Oregon Department of Environmental Quality. The Oregon Department of Environmental Quality is the certifying authority for activities in Oregon on all other lands not identified above.

3. What are the procedural changes in the certification process that affect applications for Department of the Army permits?
The procedural changes include: (a) the requirement to submit a pre-filling meeting request to the certifying authority; (b) the content requirements of a request for water quality certification; and (c) the requirement to submit the certification request to the certifying authority and the Federal permitting or licensing authority concurrently. (Please see the Final Rule for additional procedures not discussed in this notice).

a) The regulations at 40 CFR Part 121.4 require the project proponent (i.e., permit applicant) to request a pre-filing meeting with the certifying authority at least 30 days prior to submitting a request for water quality certification. The pre-filing meeting is similar to a “pre-application” meeting, but the certifying authority is not obligated to grant or respond to the pre-filing meeting request. The Final Rule does not set a limit on how early a project proponent may submit a pre-filing meeting request, but it must be at least 30 days prior to submitting a request for water quality certification. For projects that include the discharge of dredged or fill material, permit applicants should complete the pre-filing meeting request requirement before submitting an application to the Corps for a Department of the Army permit.

b) The regulations at 40 CFR Part 121.5 list the information that must be included to request an individual water quality certification as follows:
1) Identify the project proponent(s) and a point of contact;
2) Identify the proposed project;
3) Identify the applicable federal license or permit (i.e., the Department of the Army permit);
4) Identify the location and nature of any potential discharge that may result from the proposed project and the location of receiving waters;
5) Include a description of any methods and means proposed to monitor the discharge and the equipment or measures planned to treat, control, or manage the discharge;
6) Include a list of all other federal, interstate, tribal, state, territorial, or local agency authorizations required for the proposed project, including all approvals or denials already received;
7) Include documentation that a pre-filing meeting request was submitted to the certifying authority at least 30 days prior to submitting the certification request; 8) Contain the following statement: “The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief”; and
8) Contain the following statement: “The project proponent hereby certifies that all information contained herein is true, accurate, and complete to the best of my knowledge and belief.”; and
9) Contain the following statement: “The project proponent hereby requests that the certifying authority review and take action on this CWA 401 certification request within the applicable reasonable period of time.”

Please note, the list above requires some information that is not currently included in the Joint Permit Application (JPA) and you will need to provide that additional information. Submitting only the JPA will not result in a valid request for certification. During the review process, DEQ may request additional information to determine compliance with state laws. The agencies are reviewing revision to the JPA to meet the content requirement for a certification request. The Corps will determine the reasonable period of time for the certifying authority to take action on the certification request after submittal of a valid request.

c) The regulations at 40 CFR Part 121.5 requires the project proponent to submit the request for water quality certification to the certifying authority and to the Federal permitting or licensing agency concurrently. For activities that include a discharge of dredged or fill material, project proponents should submit their permit application for a Department of the Army permit and their certification request to the Corps at the same time. For activities that include a discharge of dredged or fill material, project proponents should not submit their permit application to the Corps before completing the pre-filing meeting request requirement.

4. How do you submit a pre-filing meeting request to the certifying authority?
The pre-filing meeting request should be submitted directly to the respective certifying authority based on the location of the activity as described in Item 2 above.

Pre-filing meeting requests may be submitted by email to the Oregon Department of Environmental Quality at: 401applications@deq.state.or.us, or to the U.S. Environmental Protection Agency, Region 10 at: storm.linda@epa.gov and R10-401-certs@epa.gov. For DEQ, the subject line must include the words “Pre-filing meeting request”, as well as the project name.

Pre-filing meeting requests may be submitted to the Confederated Tribes of the Umatilla Indian Reservation at: 46411 Timine Way, Pendleton, Oregon, 97801

Pre-filing meeting requests may be submitted to the Confederated Tribes of the Warm Springs Reservation of Oregon at: Post Office Box C, Warm Springs, Oregon, 97761

5. How do you submit a certification request related to a Department of the Army permit?
The certification request must be submitted to the respective certifying authority and to the Corps concurrently. Certification requests should be submitted to the certifying authority by the method identified in Item 4 above. The certification request and application for a Department of the Army permit should be submitted to the Corps together by email at: PortlandPermits@usace.army.mil

6. What is the Corps doing to address the procedures in the Clean Water Act Section 401 Certification Rule?
The Corps recognizes there will be a transition period as project proponents, consultants and members of the regulated public become familiar with the requirements of the Final Rule. Applications for Department of the Army permits for activities that require water quality certification submitted on or after September 11, 2020, will be subject to the 30-day pre-filing meeting request and certification request process, which may affect the timeline for an applicant to obtain a valid Department of the Army permit. The Corps encourages all permit applicants to complete the pre-filing meeting request requirement prior to submitting a permit application to the Corps.

The Corps is actively coordinating with the certifying authority agencies to address our procedures related to the Final Rule. As commented above, the agencies are evaluating revisions to the JPA to meet the content requirements for a certification request.

For additional information on the certification process, please contact the respective certifying authority as identified in Item 2 above.

For additional information on the Corps’ Regulatory Program, including information on how to apply for a permit from the Portland District, please see our website at: www.nwp.usace.army.mil/Missions/Regulatory