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The Oregon Administrative Rules contain OARs filed through June 15, 2014
 
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DEPARTMENT OF ENVIRONMENTAL QUALITY

 

DIVISION 48

CERTIFICATION OF COMPLIANCE WITH WATER QUALITY REQUIREMENTS AND STANDARDS

340-048-0005

Purpose

The purpose of these rules is to describe procedures for processing applications for certification pursuant to Section 401 of the Clean Water Act, 33 USC sec. 1341, and ORS 468B.035 through 468B.047.

Stat. Auth.: ORS 468
Stats. Implemented: ORS 468b.035 & 33 USC 1341
Hist.: DEQ 18-1985, f. & ef. 12-3-85; DEQ 1-1987, f. & ef. 1-30-87; DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0010

Definitions

As used in these rules:

(1) "Certification" means a written determination by the Director that an activity subject to Section 401 of the Clean Water Act will comply with applicable provisions of Sections 301, 302, 303, 306, and 307 of the Clean Water Act, 33 U.S.C. sec. 1311, 1312, 1313, 1316, and 1317, including water quality standards established pursuant to Section 303 as set forth in OAR chapter 340 division 041, and with other water quality requirements set forth in this division. ”Certification” also includes any requirements set forth as conditions of a certification pursuant to Subsection 401(d) of the Clean Water Act to ensure compliance with Sections 301, 302, 306, and 307 of the Clean Water Act, with water quality standards established pursuant to Section 303 of the Clean Water Act as set forth in OAR chapter 340, division 041, and with any other appropriate requirement of state law.

(2) "Clean Water Act" means the Federal Water Pollution Control Act of 1972, Public Law 92-500, as amended.

(3) "Coast Guard" means the U.S. Coast Guard.

(4) "Commission" means the Oregon Environmental Quality Commission.

(5) "Corps" means the U.S. Army Corps of Engineers.

(6) "Department" or "DEQ" means the Oregon Department of Environmental Quality.

(7) "Director" means the Director of the Department of Environmental Quality or the Director's delegate.

(8) “HART” means a Hydroelectric Application Review Team convened pursuant to ORS 543A.075 or 543A.400(4)(b) for the purpose of coordinating state agency actions regarding the federal relicensing and, where applicable, state reauthorization of water rights for an existing hydroelectric project.

(9) "Person" means the United States and agencies thereof, a state and agencies thereof, Tribe and agencies thereof, individual, public or private corporation, political subdivision, local government, partnership, association, firm, trust, estate, or any other legal entity.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035
Stats. Implemented: ORS 468B.035 - 468B.047 & 33 USC 1341
Hist.: DEQ 18-1985, f. & ef. 12-3-85; DEQ 5-1997(Temp), f. & cert. ef. 3-3-97; DEQ 1-1998, f. & cert. ef. 3-3-98; DEQ 19-2000, f. & cert. ef. 12-15-00; DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0015

When Certification Required

Pursuant to Section 401 of the Clean Water Act, an applicant for a federal license or permit to conduct any activity that may result in any discharge to navigable waters, including but not limited to the construction, operation, or decommissioning of facilities, must provide the federal licensing or permitting agency a certification from the department.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035
Stats. Implemented: ORS 468B.035 - 468B.047 & 33 USC 1341
Hist.: DEQ 18-1985, f. & ef. 12-3-85; DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0020

Application for Certification

(1) Applications for certification must be filed with the department, except for applications filed with the Corps pursuant to OAR 340-048-0032.

(2) An application filed with the department must contain, at a minimum, the following information:

(a) The legal name and address of the activity’s owner or operator;

(b) The legal name and address of the owner’s or operator's authorized representative, if any;

(c) A description of the activity’s location sufficient to locate and distinguish existing and proposed facilities and other features relevant to the water quality effects of the activity;

(d) The names and addresses of contiguous property owners;

(e) A complete written description of the activity, including maps, diagrams, and other necessary information;

(f) The names of affected waterways, lakes, or other water bodies;

(g) Copies of and, as appropriate, cross-references to environmental information submitted to the federal licensing or permitting agency and other environmental information and evaluations as necessary to demonstrate that the activity will comply with applicable provisions of Sections 301, 302, 303, 306, and 307 of the Clean Water Act, including water quality standards set forth in OAR chapter 340, division 041, and other appropriate requirements of state law;

(h) A copy of any public notice and supporting information issued by the federal licensing or permitting agency for the activity;

(i) An exhibit that:

(A) Includes land use compatibility findings for the activity prepared by the local planning jurisdiction;

(B) If land use compatibility findings have not been obtained, identifies the specific provisions of the local land use plan and implementing regulations applicable to the activity and describes the relationship between the activity and each of the land use provisions identified in paragraph (A) of this subsection; and

(C) Discusses the potential direct and indirect relationship to water quality of each finding or land use provision;

(j) An exhibit that identifies and describes other requirements of state law applicable to the activity that have any relationship to water quality, including but not limited to requirements under ORS chapter 454 regarding onsite disposal of sewage, ORS chapter 466 regarding spills of petroleum and hazardous substances, ORS chapter 496 regarding fish and wildlife, and ORS chapter 390 regarding recreation and scenic waterways;

(k) For new hydroelectric projects requiring certification, in addition to the information required under subsections (a) through (j) of this section, an exhibit that:

(A) Describes current water quality potentially affected by the proposed project, describes the impact of the proposed project to water quality, evaluates whether the proposed project will cause or contribute to violations of water quality standards adopted pursuant to OAR chapter 340 division 041, and identifies steps to be undertaken by the applicant to prevent violation of water quality standards;

(B) Identifies applicable standards of ORS 543.017, rules adopted by the Water Resources Commission implementing such standards, and rules or standards adopted by other state and local agencies that are consistent with ORS 543.017;

(C) Describes the relationship between the proposed project and each standard or rule identified in accordance with paragraph (B) of this subsection; and

(D) Discusses the potential direct and indirect relationship to water quality of each standard or rule.

(l) For existing hydroelectric projects requiring both certification and reauthorization of water rights, in addition to the information required under subsections (a) through (j) of this section, an exhibit that:

(A) Describes current water quality potentially affected by the existing project or activity, describes the impact of the existing project or activity to water quality, evaluates whether the existing project or activity causes or contributes to violations of water quality standards adopted pursuant to OAR chapter 340 division 041, and identifies steps to be undertaken by the applicant to mitigate or eliminate violation of water quality standards;

(B) Identifies applicable standards under ORS 543A.025(2) through (4), rules adopted by the Water Resources Commission implementing such standards, and rules or standards adopted by other state and local agencies that are consistent with such standards;

(C) Describes the relationship between the project and each of the standards or rules identified in accordance with paragraph (B) of this subsection; and

(D) Discusses the potential direct and indirect relationship to water quality of each standard or rule.

(3) The department may request any additional information necessary to complete an application or to assist the department in evaluating an activity’s impacts on water quality. An applicant’s failure to complete an application or provide requested additional information within the time specified by the department is grounds for denial of certification if the failure prevents the department from processing the application within the time allowed by law.

(4) Except for applications coordinated with the Corps as described in OAR 340-048-0032, the department must notify the applicant by certified mail of the date the application is determined to be complete. The application is deemed complete if the department’s preliminary review indicates that the information required by section (2) of this rule is provided and that the exhibit required by subsection (2)(i) contains findings of the local planning jurisdiction. If findings of the local planning jurisdiction are not included, the department must forward the exhibit submitted under subsection (2)(i) to the local planning jurisdiction for review and comment. The application is deemed complete when the local planning jurisdiction provides comments to the department, or when 60 days have elapsed, whichever occurs first. If no comment is received from the local planning jurisdiction within the 60 day period, the department must continue to seek information from the planning jurisdiction and proceed with evaluation of the application for certification.

(5) For hydroelectric projects requiring certification, in addition to complying with requirements under these rules applicable to application for certification, the applicant must submit to the department a draft application for certification no later than one year before the applicant files a final application with the Federal Energy Regulatory Commission for a license for the hydroelectric project, unless the department and the applicant agree to a different time for submission of the draft certification application. The draft certification application must contain the information described in section (2) of this rule that is available at the time required for submission of the draft application.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035
Stats. Implemented: 33 USC 1341 & ORS 468B.035 - 468B.047, 543A.095
Hist.: DEQ 18-1985, f. & ef. 12-3-85; DEQ 1-1987, f. & ef. 1-30-87; DEQ 5-1997(Temp), f. & cert. ef. 3-3-97; DEQ 1-1998, f. & cert. ef. 3-3-98; DEQ 19-2000, f. & cert. ef. 12-15-00; DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0027

Public Participation

(1) Except as provided in sections (2) and (3) of this rule, the department must provide written public notice of any proposed certification decision to potentially interested persons and adjacent property owners identified in the application. The notice must describe public participation opportunities, request comments, and identify the proposed certification decision and any related documents as available for public inspection and copying. The department must provide at least 35 days for submission of written comments. If, within 20 days of the public notice, 10 or more persons or an organization representing 10 or more members request a public hearing on the proposed certification decision, the department must provide a hearing within the 35-day public comment period or as soon thereafter as reasonably practicable. The department may also provide a public hearing on a proposed certification decision or provide informational meetings regarding a certification application as it deems appropriate. The Director must consider all comments received in making the final certification decision.

(2) For certification applications subject to coordination with the Corps, public participation will be provided as set forth in OAR 340-048-0032.

(3) For certification applications subject to coordination with a HART, public participation will be provided as set forth in OAR 340-048-0037.

(4) Upon request, the department must add the name of any person or group to the list of recipients of written public notice regarding an activity.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035
Stats. Implemented: ORS 468B.035 - 468B.047
Hist.: DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0032

Dredge and Fill

The department will coordinate with the Corps in the processing of certification applications for activities requiring permits from the Corps pursuant to Section 404 of the Clean Water Act, as follows:

(1) An application to the Corps for a permit constitutes an application for certification, provided that the department may request additional information as described in OAR 340-048-0020(2).

(2) The Corps provides public notice of and opportunity to comment on the applications, including the application for certification, provided that the department, in its discretion, may provide additional opportunity for public comment, including public hearing.

(3) The department must evaluate the certification application in accordance with OAR 340-048-0042(2) and any public comments.

(4) The Director’s certification decision must be forwarded to the applicant and the Corps.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035
Stats. Implemented: ORS 468B.035 & 33USC 1341
Hist.: DEQ 12-1999, f. & cert. ef. 8-11-99; Renumbered from 340-048-0024, DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0037

HART Coordination

(1) Certification of an existing hydroelectric project requiring federal relicensing for which a HART is convened must be coordinated through the HART in accordance with ORS 543A.100 through 543A.115. This rule applies to such coordination occurring after the department’s receipt of an application for certification. This rule does not apply to the department’s participation in the HART for a project in accordance with ORS 543A.075 through 543A.095 before the department’s receipt of an application for certification. This rule does not apply to an existing hydroelectric project requiring federal relicensing for which a HART has not been convened; that certification will be processed as otherwise provided in this division. Nothing in this rule affects the authority of the Director to act on an application for certification as necessary to avoid certification being deemed waived under the one-year period prescribed in 33 USC 1341(a)(1).

(2) Upon receipt of proposed recommendations for certification of a hydroelectric project developed by a HART in accordance with ORS 543A.105, the department must provide public notice and at least 60 days for comment on a proposed certification decision based on the HART’s recommendations. The department’s notice and comment period must run concurrently with the notice and comment period provided by the HART on a proposed unified state position under ORS 543A.105(2). The department notice must be provided in writing to interested persons, request comments within the comment period, and identify the proposed certification decision and related documents as available for public inspection and copying. If within 30 days of the public notice, 10 or more persons or an organization representing more than 10 members request a public hearing on the proposed certification, the department must provide a hearing within the 60-day public comment period or as soon thereafter as is reasonably practicable.

(3) Upon completion of the public comment period, the department must evaluate the application for certification in accordance with OAR 340-048-0042(2) and (4). The Director must make a final certification decision in accordance with the recommendations submitted by the HART under ORS 543A.105(2), unless the Director finds, based on public comment or new information, that certification as recommended by the HART would not ensure that the project will comply with water quality standards set forth in OAR chapter 340, division 041 or be consistent with other appropriate requirements of state law. If the Director’s certification decision would differ from the HART recommendations, the Director must seek further recommendation from the HART before issuing a final certification decision. The Director must consider any further recommendation from the HART, then issue a final certification decision to the applicant and the HART.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035
Stats. Implemented: ORS 468B.040 - 468B.046 & 543A.100 - 543A.110
Hist.: DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0042

Certification Decision

(1) Within 90 days after an application is deemed complete by the department pursuant to OAR 340-048-0020(4), the department must provide written notice to the applicant that the certification is granted or denied or that a further specified time period is required to process the application. Any extension of time may not exceed one year from the date the application is deemed complete, except that any extension of time regarding certification of a hydroelectric project subject to licensing by the Federal Energy Regulatory Commission may not exceed one year from the date the application is received by the department.

(2) The department must evaluate whether the activity for which certification is sought will comply with applicable provisions of Sections 301, 302, 303, 306, and 307 of the Clean Water Act, water quality standards set forth in OAR chapter 340, division 041, and other appropriate requirements of state law. In making this evaluation, the department may consider, among other things:

(a) Potential alterations to water quality that would either contribute to or cause violations of water quality standards established in OAR chapter 340, division 041;

(b) Existing and potential designated beneficial uses of surface water or groundwater that might be affected by the activity;

(c) Potential water quality impacts from the activity’s use, generation, storage, or disposal of hazardous substances, waste chemicals, or sludges;

(d) Potential modifications of surface water quality or of water quantity that might affect water quality;

(e) Potential modifications of groundwater quality that might affect surface water quality;

(f) Potential water quality impacts from the construction of intake, outfall, or other structures associated with the activity;

(g) Potential water quality impacts from wastewater discharges;

(h) Potential water quality impacts from construction activities; and

(i) Compliance with plans applicable under Section 208 of the Clean Water Act.

(3) For new hydroelectric projects requiring certification, the department must evaluate, in addition to the criteria set forth in section (2) of this rule, whether the project will be consistent with:

(a) Standards set forth in ORS 543.017;

(b) Rules adopted by the Water Resources Commission implementing such standards; and

(c) Rules or standards of other state and local agencies that are consistent with the standards set forth in ORS 543.017 and that the Director determines are other appropriate requirements of state law according to 33 USC sec. 1341(d).

(4) For existing hydroelectric projects requiring certification and reauthorization of water rights, the department must evaluate, in addition to the criteria set forth in section (2) of this rule, whether the project will be consistent with:

(a) Standards set forth in ORS 543A.025(2) through (4);

(b) Rules adopted by the Water Resources Commission implementing such standards; and

(c) Rules or standards of other state or local agencies that are consistent with the standards set forth in ORS 543A.025(2) through (4) and that the Director determines are other appropriate requirements of state law according to 33 USC sec. 1341(d).

(5) Upon completion of the department’s evaluation, including consideration of public comment and, if applicable, coordination through a HART in accordance with OAR 340-048-0037, the Director must issue a decision approving or denying certification for the activity, containing:

(a) The name of the applicant;

(b) The activity’s name and federal identification number, if any;

(c) The type of activity;

(d) The name of the affected water body;

(e) The general location of the activity;

(f) Findings whether the activity will comply with the standards and requirements set forth in sections (2) through (4) of this rule, as applicable; and

(g) If certification is approved, conditions the Director determines are necessary to assure compliance with applicable standards and requirements set forth in sections (2) through (4) of this rule for the duration of the federal license or permit.

(6) A certification granted pursuant to this division is valid for the applicant only and is not transferable to another person without the written approval of the department. The department may approve the transfer of a certification to a new owner or operator of the certified activity if the department is provided assurance that the new owner or operator will comply with the certification.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035
Stats. Implemented: ORS 468B.035 - 468B.047, 543.017, 543A.025 & 33 USC 1341
Hist.: DEQ 18-1985, f. & ef. 12-3-85; DEQ 1-1987, f. & ef. 1-30-87; Renumbered from 340-048-0025; DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0045

Issuance and Appeal of Certification Decision

(1) The department must provide a certification decision to the applicant by mail or personal delivery in the same manner as provided for service of notice under OAR 340-011-0097 and provide written notice by appropriate means to public commenters on the proposed certification decision. Any certification decision must include or be accompanied by a notice of the applicant’s opportunity to request a contested case hearing regarding the certification decision.

(2) An applicant dissatisfied with a certification decision, including any conditions to an approved certification, may request a contested case hearing by filing an answer and request for hearing in accordance with OAR 340-011-0107 within 20 days of mailing or personal delivery of the notice of the certification decision by the department. The hearing must be conducted in accordance with OAR chapter 340, division 011 regarding contested cases.

(3) For purposes of the one-year period prescribed in 33 USC sec. 1341, the certification decision is effective upon the Director’s issuance of the decision, notwithstanding any request for a contested case hearing by the applicant or other judicial review.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035
Stats. Implemented: ORS 468B.035 - 468B.047, 543.017, 543A.025 & 33 USC 1341
Hist.: DEQ 18-1985, f. & ef. 12-3-85; Renumbered from 340-048-0030, DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0050

Modification or Revocation of a Certificate

(1) A certification may be modified or revoked by the Director if:

(a) The federal license or permit for the activity is revoked or terminated;

(b) The federal license or permit or the federal licensing or permitting agency allows modification of the activity in a manner inconsistent with the certification;

(c) The certification application contained false or inaccurate information regarding the activity that affects or might affect compliance with water quality standards and requirements;

(d) Changes in conditions regarding the activity or affected waterways since the certification was issued affect or might affect compliance with water quality standards and requirements;

(e) Certification conditions are violated; or

(f) Water quality standards, applicable federal laws, or other appropriate requirements of state law have changed since the certification was issued.

(2) Before modification or revocation of a certification, the department must provide the certification holder and the public with written notice of the department’s intent to modify or revoke the certification and at least 30 days to submit written comment. If the certification is for a hydroelectric project, the department must also consult with the HART for the project, if any. Upon request by the certification holder, 10 or more persons, or an organization representing 10 or more members, the department must provide a public hearing on the proposed modification or revocation. After consideration of public comment and, if applicable, consultation with a HART, the Director must determine whether to modify or revoke the certification.

(3) Notice of any modification or revocation must be provided by the department to the certification holder by mail or personal delivery in the same manner as provided for service of notice under OAR 340-011-0097 and to the federal permitting or licensing agency and public commenters by appropriate means. The notice must include or be accompanied by a notice of the certification holder’s opportunity to request a contested case hearing regarding the modification or revocation.

(4) A certification holder dissatisfied with a modification or revocation may request a contested case hearing by filing an answer and request for hearing in accordance with OAR 340-011-0107 within 20 days of the department’s mailing or personal delivery of the notice. The hearing must be conducted in accordance with OAR chapter 340, division 011 regarding contested cases.

(5) The requirements in this rule governing modification or revocation of a certification do not apply to implementation of certification conditions that by their own terms require modification of an activity to ensure compliance with water quality standards and requirements (e.g., based on monitoring results, adaptive management).

(6) This rule does not apply to new certification requirements the department imposes in response to a notice that a federal agency is considering a license or permit application related to a change to a hydroelectric project or proposed hydroelectric project previously certified by the Director. In such event, the procedures and standards set forth in ORS 468B.045 apply.

Stat. Auth.: ORS 468.035, 468.065 & 468B.035 
Stats. Implemented: ORS 183, 468B.035 - 468B.046 & 33 USC 1341 
Hist.: DEQ 18-1985, f. & ef. 12-3-85; Renumbered from 340-048-0040, DEQ 2-2004, f. & cert. ef. 4-15-04

340-048-0055

Fee Schedule for Certifications

(1) Applicability. The fees established in this rule apply to any person, including a federal agency, submitting an application for certification to DEQ.

(2) Fee Determinations. To determine the appropriate fee to process and review an application for certification, DEQ will do the following:

(a) Perform an initial review of the application and other materials submitted;

(b) Determine the estimated program costs incurred by DEQ in reviewing the proposed project based on the types of tasks expected, the amount of staff time and other expenses, and assign a tier using the criteria in Section (3);

(c) Submit an invoice or, if necessary, multiple invoices, to the applicant based on the appropriate fee schedule provided in Section (4); and

(d) As necessary, revise an assigned tier based on documentation of the expected types of tasks or program costs incurred, if appropriate, and notify the applicant of such revisions.

(3) Project Tiers. The following tier schedule describes the types of tasks expected to appropriately process and review proposed projects for certification:

(a) Tier 1 — This tier applies to those projects that incur minimal program costs and impacts to water quality. To qualify under this tier, the project must meet the following:

(A) Potential for minimal impacts to water quality;

(B) Low level of public participation;

(C) No more than standard coordination with federal state or local agencies required;

(D) Stormwater management plan review not required or will be addressed through the National Pollutant Discharge Elimination System permitting process;

(E) Limited technical assistance needed; or,

(F) Within the scope of a United States Army Corps of Engineers Nationwide 404 category requiring a DEQ 401 certification and involving only a stormwater management plan or sediment evaluation review component;

(G) Within the scope of the proposed application, the project has been modified or altered that the DEQ 401 review and certification requires re-issuance, including DEQ public notice.

(b) Tier 2A — This tier applies to those projects that incur a higher than minimal amount of program costs and impacts to water quality. To qualify under this tier, the project must meet some of the following:

(A) Potential for greater than minimal impacts to water quality;

(B) Basic level of public participation required, including but not limited to response to comment;

(C) No more than standard coordination with federal state or local agencies required;

(D) Limited stormwater management plan review or technical assistance to a reviewing permitted entity or agent required;

(E) Limited technical assistance needed; or

(F) Sediment characterization, if required, finds sediment and new surface suitable for in-water exposure.

(c) Tier 2B — This tier applies to those projects that incur higher program costs due to greater potential impacts on water quality. To qualify for this tier, the project must meet a majority of the following:

(A) Potential for greater water quality impacts if the waterway is identified on DEQ’s 303(d) list or is covered by a total maximum daily load, or multiple waters of the state are affected;

(B) High level of public participation required with potential for one or more public meetings or hearings;

(C) More than standard coordination with multiple federal, state or local agencies required, including but not limited to one or more meetings or pre-application site visit;

(D) Complex stormwater management plan review and coordination required;

(E) Moderate and on-going level of technical assistance needed;

(F) Large or complex compensatory mitigation review required;

(G) Sediment characterization, if required, finds sediment or new surface unsuitable for in-water exposure, so that coordination with the DEQ Solid Waste or Environmental Cleanup programs is necessary; or

(H) Preparation of a full evaluation and findings report needed.

(d) Tier 3 — This tier applies to those projects that incur very high program costs because a large area is affected, a high degree of complexity is involved or greater potential water quality impacts may result. To qualify for this tier, the project must meet a majority of the following:

(A) Potential for greater water quality impacts if the waterway is identified on DEQ’s 303(d) list or covered by a total maximum daily load, or multiple waters of the state are affected;

(B) High level of public participation required with extensive public comments and the potential for one or more public meetings or hearings;

(C) Substantially more than standard coordination with multiple federal, state or local agencies required, including but not limited to one or more meetings;

(D) Complex stormwater management plan review and coordination required;

(E) High level or iterative technical assistance required or substantive project revisions received;

(F) Large or complex compensatory mitigation review required;

(G) Site visit(s) needed to understand impacts and advise on potential alternatives;

(H) Sediment characterization finds sediment or new surface unsuitable for in-water exposure or contaminated soil is likely to be present, so that coordination with the DEQ Solid Waste or Environmental Cleanup Programs is necessary; or

(I) Preparation of a full evaluation and findings report needed.

(e) Tier 4 — This tier applies to those projects that incur the highest program costs because a very large area is affected, an extremely high degree of complexity is involved, or a very high level of public participation is expected. To qualify for this tier, the project must meet all of the following:

(A) All of the applicable factors identified in Tier 3; and

(B) Coordination with the Governor’s Office in conjunction with other state agencies, tribal nations and the federal government;

(C) Review of additional documents such as National Environmental Policy Act Resource Reports, Environmental Assessments and Environmental Impact Statements.

(4) Fee Schedules. The following fees apply to tiers assigned under Sections (2) and (3):

(a) As of July 31, 2013, the following fees apply:

(A) Tier 1 — $985

(B) Tier 2A — $4,390

(C) Tier 2B — $12,105

(D) Tier 3 — $17,780

(E) Tier 4 — $14,020 per month or average monthly cost of a senior level technical staff position.

(b) In lieu of fees established by this section, DEQ may at its discretion enter into an intergovernmental agreement with another state or federal agency that provides for the payment of the estimated or actual costs of processing an application for certification.

(5) Review of Fee Determinations. An applicant may seek review of DEQ’s determination of the appropriate fee as follows:

(a) An applicant may seek review of the fee determination by submitting a written request to the DEQ regional administrator within 30 days of receipt of an invoice. The request must state the specific reasons and provide documentation that the applicant believes supports a different fee amount. Upon receiving such a request, the DEQ regional administrator must respond within 60 days of receipt and render a decision.

(b) That decision may include:

(A) Determination that a different fee tier will apply subject to making specifically identified modifications to the proposed project;

(B) Denial of a request for a different fee amount; or;

(C) The determination that the proposed project meets the criteria for a different tier.

(c) If an applicant is not satisfied by the decision of the DEQ regional administrator, the applicant is entitled to request review by the DEQ director in the same manner as described in subsections (a) and (b) above.

(d) An applicant who is dissatisfied with the review of the director retains the right to a contested case hearing as provided in ORS chapter 183, provided the applicant has sought relief through subsections (a) through (c).

(6) Certification of Hydroelectric Projects. Fees for certification of a hydroelectric project as proposed to be licensed by the Federal Energy Regulatory Commission must be paid in accordance with ORS 468.065(3). Fees for a certification related to a hydroelectric project but for a license or approval not issued by the Federal Energy Regulatory Commission are based on the actual expenses incurred by the department, including expenses of the Environmental Quality Commission, related to the certification review and decision. In consultation with the applicant, DEQ will establish a periodic basis for billing the applicant.

(7) DEQ may approve a payment schedule for fees, including the submission of multiple invoices, for multi-year projects or projects assigned as a Tier 4.

(8) DEQ must receive the payment of the full invoiced fee before issuing a certification, and a review made pursuant to subsection (5) does not suspend the requirement to pay the appropriate fee. An application for certification is considered withdrawn if the applicant fails to pay the appropriate fee within 90 days of the invoice date. An applicant may request that DEQ grant an extension of time to pay the appropriate fee to an applicant upon a showing of good cause, and DEQ will continue processing the application for certification. DEQ may refund the fee or some portion if it determines that no certification is required, that minimal program costs were not incurred, a revised tier assignment is provided or the wrong application has been filed.

Stat. Auth.: ORS 468.068 & 468B.047
Stats. Implemented: ORS 468.068
Hist.: DEQ 28-1998, f. & cert. ef. 12-22-98; Renumbered from 340-048-0200, DEQ 2-2004, f. & cert. ef. 4-15-04; DEQ 1-2013, f. & cert. ef. 1-16-13; DEQ 3-2013(Temp), f. & cert. ef. 3-25-13 thru 7-30-13; Administrative correction, 8-21-13

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