By Elizabeth A. Rosso, AttorneyThis article was originally published in the November 22, 2019 edition of the Daily Journal of Commerce Oregon.
Suppose you want to develop a parcel of land containing a wetland created by water running off the adjacent property onto your project site. Your project would fill the wetland, so the Federal Water Pollution Control Act (“Clean Water Act”) requires that you obtain a federal permit prior to undertaking the filling activity. Specifically, you need a permit from the U.S. Army Corps of Engineers (“Corps”) pursuant to Clean Water Act Section 404. Before the Corps issues the permit, the state must provide a water quality certification as required by Section 401 of the Clean Water Act.
What is the scope of the state’s authority? Or may it look further and consider impacts from other projects, such as the prior development of the adjacent property that created the wetland to be filled?
The Clean Water Act prohibits discharges of pollutants into waters of the United States unless done in accordance with a valid federal permit. In the case of discharge of dredged or fill material into waters such as wetlands, Section 404 of the Clean Water Act allows the Corps to issue permits for such activity.
When applying for a Section 404 permit, the applicant must provide “a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the applicable provisions of” various other sections of the Clean Water Act. This requirement comes from Section 401 of the Clean Water Act and is referred to as the “401 water quality certification.”
The Clean Water Act and associated case law are clear that the state has virtually unlimited power to impose conditions on its 401 water quality certification to ensure compliance with the Clean Water Act and “any other appropriate requirement of state law.” See 33 U.S.C. § 1341; PUD No. 1 of Jefferson Cty. v. Washington Dep’t of Ecology, 511 U.S. 700 (1994). Federal law also says the focus of the certification review needs to be on the activity being permitted, not the discharge, and on ensuring that the activity “will be conducted in a manner which will not violate applicable water quality standards.” Id. See also 40 CFR 121.2(a)(3).
In Oregon, water pollution control is mandated through ORS Chapter 468B. ORS 468B.020 requires the Oregon Department of Environmental Quality (“DEQ”) to take actions necessary for the prevention of new pollution and abatement of existing pollution by “[r]equiring the use of all available and reasonable methods necessary to achieve the purposes of ORS 468B.015 and to conform to the standards of water quality and purity established under ORS 468B.048.”
These water quality laws are implemented in OAR Chapter 340. OAR 340-048 sets forth procedures for filing and evaluating water quality certification applications. OAR 340-048-0015 requires certification when an applicant is applying for a federal license or permit “to conduct any activity that may result in any discharge to navigable waters.” In reviewing applications for certification, DEQ “must evaluate whether the activity for which certification is sought will comply with applicable provisions of” the Clean Water Act, “water quality standards set forth in OAR 340, division 041, and other appropriate requirements of state law.” OAR 340-048-0042(2). The specific considerations that DEQ must take into account all focus on the effect on water quality of the activity being permitted.
DEQ’s guidance documents further narrow the state’s focus to runoff from the activity being permitted. For example, DEQ’s Section 401 Water Quality Certification Post-Construction Stormwater Management Plan Submission Guidelines advises DEQ to consider all methods necessary for “the project” to meet water quality standards and evaluate whether “stormwater runoff may cause or tend to cause pollution.” The post-construction stormwater management plan need only look at “stormwater runoff generated by the water quality storm event on the CIA.” “CIA” is the Contributing Impervious Area, which is defined as “All impervious surface areas within the project boundaries plus impervious surface areas owned or managed by the same entity from which stormwater runs overland or via discrete conveyance (e.g., piped) to an area within the project boundaries.” DEQ, therefore, may evaluate run-on only when that run-on is coming from an area owned or managed by the same entity that is seeking the 401 water quality certification.
Thus, although the state has the authority to impose “all available and reasonable methods necessary” to protect water quality, its 401 certification review should look at whether the permitted activity will result in a discharge that would lower water quality. It should not evaluate the water quality impact of run-on from a completely different parcel or activity not owned or managed by the applicant. To do so would contravene DEQ’s own guidelines, which allow consideration of run-on only when it is coming from an area also owned by the applicant. The applicant must keep DEQ focused on the activity for which the permit is being sought.
Pushing the regulator to maintain that focus likely is not a realistic strategy given the costs in terms of project delay while negotiations continue. Depending on how long a 401 water quality certification application has been pending, applicants could consider asking the Corps to issue the Section 404 permit without the Section 401 certification on the basis that the state has waived certification by failing to act within the regulatory timeline. It is unclear if the Corps would agree to do so, and in any event, this only kicks the can down the road, as the state will likely insist on the same conditions prior to issuing necessary permits and approvals as the project progresses. The best strategy may be to start early – prior to purchase, when there may be room to negotiate the handling of off-site drainage as part of the sale. And if not, at least the issue will have been identified early, such that everyone knows what to expect as the project proceeds.
Elizabeth Rosso is an attorney at Jordan Ramis PC who focuses her practice on environmental law. Contact her at firstname.lastname@example.org or (503) 598-7070.
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