Clean Water Act Explainer: Section 401

Law Office of Frank Hammond • November 8, 2024

The Clean Water Act (CWA) was established by the Congress and acts as the federal baseline for water quality standards in the United States and state authority regarding environmental protection. 


According to the Environmental Protection Agency, Section 401 of the Clean Water Act outlines key requirements for states and authorized tribes to protect the water quality of federally regulated waters through federally issued permits.


At Law Office of Frank Hammond, our attorney is experienced in helping industry and large organizations understand their responsibilities for maintaining water quality and complying with the regulations laid out in Section 401 of the Clean Water Act.

Overview of Section 401

Under Section 401 of the Clean Water Act, the federal government is not permitted to issue a permit to any business, organization, or industry that aims to engage in any activity that would potentially result in discharge (including dredge and fill material) into any waters within the United States. 


The aim of this section is to make sure projects conducted by these organizations or businesses comply with state and federal water quality standards, thereby protecting local water resources.


Businesses and organizations must comply with Section 401 of the CWA as these regulations aim to protect the environment and promote sustainable development. Failure to comply with this section can result in legal consequences, including costly fines and potential project delays.

Understanding Section 401 Water Quality Certifications

Section 401 of the CWA grants states and authorized tribes the authority to issue state water quality certifications (WQCs) for any projects that require a federal license or permit that may result in a discharge to waters of the US. This authorization granted by the federal government aims to protect vital water resources that have supported healthy individuals and thriving communities for the past 50 years.


According to the Oregon Department of Environmental Quality, the certification states that the "discharge will comply with applicable provisions of the CWA, including state water quality standards". In Oregon, the water quality standards specify:


  • The specific purpose of a water body (such as drinking water or recreation) 
  • Pollution limits needed to protect a water body's designated purpose (using clear standards)  
  • Policies to ensure current water uses are not harmed by pollution discharge


Based on the evaluation of these standards, individual states have the authority to approve, conditionally approve, or deny certifications. A business, organization, or industry body will be unable to obtain a federal permit or license from the state or the EPA until they receive a 401 WQC.

Types of Permits that Require Section 401 Certification

Any project conducted by an organization or industry body is required to obtain a Section 401 water quality certification before they can obtain the necessary permits for their proposed activity. According to the Oregon Department of Environmental Quality, eligible permits are divided into three types:


  • Individual permits: For projects with significant impacts that must meet state water quality standards. A review fee will be charged based on the project's complexity and expected review time. If a project creates new or increases impervious surfaces, a post-construction stormwater management plan must be submitted to the Oregon DEQ for approval. A Land Use Compatibility Statement is also required.
  • Regional general permits: RGPs are created for projects with repeated activities that affect a specific geographic area. Each RGP has specific terms and conditions that must be met for the project actions to be verified. You can find the current RGPs on the USACE Portland District website.
  • Nationwide permits: For projects with minimal impacts that qualify for the Nationwide 401 Water Quality Certification. These projects require a fee of $985. If your project involves new or increased impervious surfaces, you must submit both a post-construction stormwater management plan to the DEQ for review and approval and a Land Use Compatibility Statement.


It's essential for businesses, organizations, and industry bodies to understand which projects require a water quality certification as the type of permit their project requires. An experienced environmental law attorney can provide you with the insight you need to make informed decisions.

How to Qualify for a Water Quality Certification in Oregon

To obtain a water quality certification in Oregon, organizations and industry bodies must first submit an application to the DEQ. In Oregon, the DEQ administers the NPDES program and the state’s regulations are stricter than those of EPA. An attorney is needed to work through the intersection of the two programs.


The application will be evaluated based on its compliance with the current state and federal water quality standards. The factors that are typically considered include:


  • Water quality standards: This involves reviewing any potential pollutants the project might introduce into water bodies and assessing their impact on aquatic ecosystems.
  • Designated uses: Projects should not compromise water bodies' designated uses, including drinking, fishing, and recreational purposes.
  • Mitigation measures: Applicants may be required to propose mitigation strategies to offset any adverse effects their project could cause. This could involve habitat restoration or innovative technologies to reduce pollution.


The DEQ may also require additional information or modifications to the project proposal before approving the certification. Once approved, the organization or industry body can then proceed with obtaining their necessary permits from either the state or the EPA.


It's important to note that the process for obtaining a water quality certification can be complex and time-consuming. It's essential to consult an experienced environmental law attorney who can guide you through the process and make sure you comply with all necessary standards and regulations.

Consult an Experienced Attorney

Section 401 of the Clean Water Act plays a crucial role in protecting water quality within the United States by granting states and authorized tribes authority over issuing water quality certifications for federally regulated projects. Compliance with these regulations is essential for promoting sustainable development and maintaining healthy communities. 


If you're planning a project that may require a federal license or permit, it's important to understand the certification process and work with an experienced clean water law attorney, like Frank Hammond. At our firm, we have the experience and knowledge you need to help you make informed decisions about the Clean Water Act. Contact us today to schedule a consultation.

Environmental Law for Portland Startups and Investors

By Law Office of Frank Hammond • February 7, 2025
Portland, Oregon, is often described as an area of natural beauty. Coupled with the state's commitment to developing sustainable and eco-conscious practices, business startups and investors are required to comply with environmental laws and regulations if they want to grow their businesses and succeed. Whether you're launching a new enterprise, investing in local development, or expanding an existing business, it's essential to understand Oregon's environmental laws and how they can impact your business venture to demonstrate a commitment to the values of your state's community. At Law Office of Frank Hammond , we strive to help you understand your rights and obligations for complying with federal and state environmental law.

Clean Water Act Explainer: Section 403

By Law Office of Frank Hammond • January 7, 2025
The Clean Water Act (CWA) is a federal legislation passed in 1972 that is aimed at improving and protecting water quality throughout the United States. While Section 402 deals with the National Pollutant Discharge Elimination System (NPDES), Section 403 introduces additional requirements for discharges, specifically in territorial seas, contiguous zones, and oceans. At Law Office of Frank Hammond in Portland, Oregon, we're committed to helping businesses, developers, and municipalities understand their obligations under the CWA and operate responsibly to avoid legal complications. Here, we strive to break down what Section 403 entails, how it interacts with other provisions of the Clean Water Act, and its implications for business and corporate entities.

Biodiversity and the Law

By Law Office of Frank Hammond • January 7, 2025
The term biodiversity refers to the variety of life on Earth, including all living organisms such as plants, animals, and microorganisms, as well as their genetic diversity. Biodiversity is essential for maintaining healthy ecosystems and providing numerous benefits to humans, such as clean air and water, food and medicine sources, and cultural values. However, with increasing human activities such as deforestation, pollution, overharvesting of resources, and climate change, biodiversity is facing significant threats worldwide. To protect and conserve biodiversity effectively, there are various laws and regulations in place at local, state, and national, levels.

Clean Water Act Explainer: Section 402

By Law Office of Frank Hammond • November 12, 2024
Enacted in 1972 by the Congress, the Clean Water Act (CWA) is aimed at regulating water pollution to protect and maintain the integrity of the nation's waters. The primary objective of this Act is to restore and preserve the chemical, physical, and biological properties of water bodies across the country. Section 402 of the Clean Water Act establishes the National Pollutant Discharge Elimination System (NPDES) permit program, as outlined by the EPA, which is responsible for controlling the discharge of pollutants into navigable waters and ensuring compliance with wastewater standards. At Law Office of Frank Hammond , located in Portland, Oregon, we are dedicated to helping businesses and individuals understand the provisions of the Clean Water Act, particularly in obtaining and managing NPDES permits.

6PPD-Q and You

April 23, 2024
N-(1,3-dimethylbutyl)-N'-phenyl-p-phenylenediamine or 6PPD is a chemical used in tire manufacturing to prevent them from breaking down. Friction between tires and the road causes 6PPD to be released in dust. When exposed to ozone in the air, 6PPD undergoes a chemical reaction and becomes 6PPD-quinone, or simply 6PPD-q. This new chemical then gets into waterways where it has been proven to be extremely hazardous for marine life. Marine die-offs beside roadways had been noticed before, but the pollutant responsible hadn’t been figured out. 6PPD-q was first discovered as that pollutant in December 2020 by scientists at the University of Washington-Tacoma and Washington State University. Coho salmon seem the most vulnerable to 6PPD-q, but it is toxic to other fish species like rainbow trout and chinook salmon. The discovery of 6PPD-q has caused a flurry of legal activity and regulation discussions. In 2022, the EPA launched a group to research 6PPD-q and how to prevent further fish deaths. Both California and Washington have included 6PPD-q in their chemical safety programs, and Oregon has released a primary report about ways to reduce 6PPD-q runoff. Management of tire wear runoff has been included in the draft of Washington’s stormwater permits, even though 6PPD-q has not been mentioned by name. This year, the EPA released a 6PPD-q test to better assess and manage water systems. Likewise, 6PPD-q has been the subject of multiple legal cases. The Yurok, Port Gamble S’Klallam, and Puyallup tribes petitioned the EPA to prohibit the use of 6PPD in tire manufacturing due to 6PPD-q’s effects on the salmon the tribes traditionally fish. The EPA agreed to the petition and has drawn up a plan to further research 6PPD and 6PPD-q and phase its use out of tire manufacturing. Shortly after the petition was granted, the Institute for Fisheries Resources (IFR) and the Pacific Coast Federation of Fishermen’s Associations (PCFFA) filed a joint suit against multiple tire manufacturers for their use of 6PPD, which endangers animals protected by the Endangered Species Act. Similarly, the Center for Biological Diversity sent an intent to sue letter to the California Department of Transportation, the US Department of Transportation, the Oregon Division of Federal Highway Administration, the National Marine Fisheries Services, and the Secretary of Commerce for alleged inactions related to road management, which led to 6PPD-q ending up in critical salmon habitat The legal issues surrounding 6PPD and 6PPD-q are coming fast. Those in the tire industry need to stay abreast of the issue, while some have an opportunity to invest in things like 6PPD-q cleanup and green infrastructure that will help prevent 6PPD-q from getting to the fish in the first place.

DEQ To Hold Meeting on House Bill 3220

April 9, 2024
DEQ is holding a rulemaking meeting on May 9th, 2024 at 9 am, seeking to clarify House Bill 3220. HB 3220 updates Oregon’s E-Cycles program, the state’s electronics recycling program. Amendments to HB 3220 have expanded the electronics accepted, increased the minimum number of collection sites, and added requirements for improving the state’s collection network. The May 9th meeting will focus on annual reporting and coordination requirements, financial compensation, and environmental management practices. There will be time for public comment, allowing regular folks to add their input to the rulemaking process.  The rulemaking contact is Rachel Harding, at 503-929-7125.

DEQ is open for public comments on proposed rule amendments on 2023 High Hazard Rail Tank Fee

By Jason Hammond • January 4, 2024
The Oregon Department of Environmental Quality has proposed permanent changes to OAR 340-141-0290, establishing a “per tank fee” on train cars carrying oil that enter the state. Under ORS 468B.435 (13)(c), a fee of up to $20 per car is authorized, to be paid by the owner of the crude oil; the DEQ’s proposed rule would establish a fee of $19 per car. DEQ has stated the fees would be used for railroad training exercises. DEQ is open for public comments on the proposed changes by email, post, and at a public hearing. Comments will be considered until January 22, 2024, at 4 pm. Comments can be emailed to hhrfee2023@deq.oregon.gov , and mailed to: Oregon DEQ Attn: Kyrion Gray/High Hazard Rail Planning Program 700 NE Multnomah Street, Suite 600 Portland, OR 97232-4100 The public hearing is on Tuesday, January 16, 2024, on Microsoft Teams at 10 am. Teleconference phone number: +1 503-446-4951, 100054706# Phone Conference ID: 100 054 706# Meeting ID: 220 575 203 918 Participant code: VYtUiL

How Hard Is It to Set Up a Mycoremediation Facility?

By Jason Hammond • October 24, 2023
One of the issues with recycling is the number of things that can’t be recycled traditionally – plastic, Styrofoam, and so on. The amount of waste produced by our modern lives can seem impossible. However, there’s another way to break down these materials – fungi. Mycoremediation is the process of using fungi to decontaminate polluted environments and break down things like plastics and heavy metals. Fungi have highly adaptable metabolisms and enzymes that allow them to digest a wide variety of unusual substances, from medication to petroleum. For instance, fungi can suck up heavy metal pollutants from soil and water. These metals concentrate in their fruiting bodies, which can be easily removed afterward. Depending on the pollutant being broken down, the mushroom can be removed and put in a hazardous waste facility or even be safe enough to eat. Either way, using fungi to remove pollutants is much easier than other methods of environmental remediation, which can involve labor- and time-intensive things such as complete removal of polluted soil. If fungi are used to break down solid waste, the mushrooms – even if they can’t be eaten – reduce the dangers of things such as PFAS, microplastics, or methane from landfills entering the environment. Mycoremediation has the potential to massively change how we dispose of our waste, but the process is still new and unexplored. For the potential mycoremediation entrepreneur, there’s no clear permitting path from Oregon DEQ. Instead, they must navigate the conversion technology facility permit process. 

Dealing with Trespassing Neighbors: When Legal Help Becomes Necessary

By Frank Hammond • September 21, 2023
As a lawyer who has handled many property disputes, I understand the importance of property rights and boundaries. Property disputes can be a headache, especially when your neighbor trespasses on your land. In this article, I’ll explore what you should do if you find yourself in this situation of a trespass, and why seeking legal help might be your best course of action.
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