[Federal Register Volume 87, Number 111 (Thursday, June 9, 2022)]
[Proposed Rules]
[Pages 35318-35381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12209]
[[Page 35317]]
Vol. 87
Thursday,
No. 111
June 9, 2022
Part III
Environmental Protection Agency
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40 CFR Parts 121, 122 and 124
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Clean Water Act Section 401 Water Quality Certification Improvement
Rule; Proposed Rule
Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 /
Proposed Rules
[[Page 35318]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 121, 122 and 124
[EPA-HQ-OW-2022-0128; FRL-6976.1-01-OW]
RIN 2040-AG12
Clean Water Act Section 401 Water Quality Certification
Improvement Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Following a careful reconsideration of the water quality
certification rule promulgated in 2020, the Environmental Protection
Agency (EPA or the Agency) is publishing for public comment a proposed
rule revising and replacing the Agency's 2020 regulatory requirements
for water quality certification under Clean Water Act (CWA) section
401. This proposed rule would update the existing regulations to be
more consistent with the statutory text of the 1972 CWA; to clarify,
reinforce, and provide a measure of consistency with respect to
elements of section 401 certification practice that have evolved over
the 50 years since the 1971 Rule was promulgated; and to support an
efficient and predictable certification process that is consistent with
the water quality protection and cooperative federalism principles
central to CWA section 401. This proposal is consistent with the
Executive order signed on January 20, 2021, ``Protecting Public Health
and the Environment and Restoring Science to Tackle the Climate
Crisis,'' which directed the Agency to review the water quality
certification rule EPA promulgated in 2020. The Agency is also
proposing conforming amendments to the water quality certification
regulations for EPA-issued National Pollutant Discharge Elimination
System permits.
DATES: Comments must be received on or before August 8, 2022. Please
refer to the SUPPLEMENTARY INFORMATION section for additional
information on the public hearing.
ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2022-0128, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
comments.
Email: [email protected]. Include Docket ID No. EPA-HQ-OW-
2022-0128 in the subject line of the message.
Hand Delivery/Courier: EPA Docket Center, WJC West
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004.
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m.,
Monday-Friday (except Federal Holidays).
Instructions: All submissions received must include the Docket ID
No. EPA-HQ-OW-2022-0128 for this rulemaking. Comments received may be
posted without change to https://www.regulations.gov/, including any
personal information provided. For detailed instructions on sending
comments and additional information on the rulemaking process, see the
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION
section of this document.
FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Oceans, Wetlands, and
Communities Division, Office of Water (4504-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: 202-564-3351; email address: [email protected].
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Public Participation
A. Written Comments
B. Virtual Public Hearing
III. General Information
A. What action is the Agency taking?
B. What is the Agency's authority for taking this action?
C. What are the incremental costs and benefits of this action?
IV. Background
A. Development of Section 401
B. Overview of CWA Section 401 Requirements
C. Prior Rulemaking Efforts Addressing Section 401
D. Summary of Stakeholder Outreach
V. Proposed Rule
A. When Section 401 Certification Is Required
B. Pre-Filing Meeting Request
C. Request for Certification
D. Reasonable Period of Time
E. Scope of Certification
F. Certification Decisions
G. Federal Agency Review
H. EPA's Roles Under Section 401
I. Modifications
J. Enforcement and Inspections
K. Neighboring Jurisdictions
L. Treatment in a Similar Manner as a State Under Section 401
M. Implementation Considerations
VI. Economic Analysis
VII. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review
B. Paperwork Reduction Act (PRA)
C. Regulatory Flexibility Act (RFA)
D. Unfunded Mandates Reform Act (UMRA)
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
I. National Technology Transfer and Advancement Act
J. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations
I. Executive Summary
Clean Water Act (CWA) section 401 provides states \1\ and
authorized tribes \2\ with a powerful tool to protect the quality of
their waters from adverse impacts resulting from the construction and
operation of federally licensed or permitted projects. Under CWA
section 401, a Federal agency may not issue a license or permit to
conduct any activity that may result in any discharge into a ``water of
the United States'' \3\ unless the state or authorized tribe where the
discharge would originate either issues a CWA section 401 water quality
certification ``that any such discharge will comply with the applicable
provisions of Sections 301, 302, 303, 306, and 307'' of the CWA, or
waives certification. 33 U.S.C. 1341(a)(1). When granting a CWA section
401 certification, states and authorized tribes are directed by CWA
section 401(d) to include conditions, including ``effluent limitations
and other limitations, and monitoring requirements'' necessary to
assure that the applicant for a Federal license or
[[Page 35319]]
permit will comply with CWA sections 301, 302, 306, and 307, and with
``any other appropriate requirement of State law.'' Id. at 1341(d).
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\1\ The CWA defines ``state'' as ``a State, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands,
and the Trust Territory of the Pacific Islands.'' 33 U.S.C. 1362(3).
\2\ The term ``authorized tribes'' refers to tribes that have
been approved for ``treatment in a manner similar to a State''
status for CWA section 401. See 33 U.S.C. 1377(e).
\3\ The CWA, including section 401, uses the term ``navigable
waters,'' which the statute defines as ``the waters of the United
States, including the territorial seas.'' 33 U.S.C. 1362(7). This
proposed rule uses the term ``waters of the United States''
throughout. EPA and the Corps recently published a proposed rule
that would define the scope of ``waters of the United States.'' See
Proposed Revised Definition of ``Waters of the United States.'' 86
FR 69372 (December 7, 2021). The agencies are currently interpreting
``waters of the United States'' consistent with the pre-2015
regulatory regime. The ``pre-2015 regulatory regime'' refers to the
agencies' pre-2015 definition of ``waters of the United States,''
implemented consistent with relevant case law and longstanding
practice, as informed by applicable guidance, training, and
experience.
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Congress originally created the state water quality certification
requirement in section 21(b) of the Water Quality Improvement Act of
1970, which amended the Federal Water Pollution Control Act (FWPCA).\4\
Congress granted states this certification authority in response to
Federal agencies' failure to achieve Congress's previously stated goal
of assuring that federally licensed or permitted activities comply with
water quality standards.\5\ Two years later, Congress revised the
Federal water quality protection framework \6\ when it enacted the
Federal Water Pollution Control Act Amendments of 1972 (commonly known
as the Clean Water Act or CWA).\7\ In those Amendments, Congress placed
the state water quality certification requirement in section 401, using
``substantially section 21(b) of existing law,'' with relevant
conforming amendments ``to assure consistency with the [ ] changed
emphasis from water quality standards to effluent limitations based on
the elimination of any discharge of pollutants.'' S. Rep. No. 92-414 at
69 (1971); see also H.R. Rep. No. 92-911 at 121 (1972) (``Section 401
is substantially section 21(b) of the existing law amended to assure
that it conforms and is consistent with the new requirements of the
Federal Water Pollution Control Act.''). Section 401's grant of
authority to states and authorized tribes to play a significant role in
the Federal licensing or permitting process is consistent with the
overall cooperative federalism framework of the CWA, which provides
states and authorized tribes with a major role in implementing the CWA,
balancing their traditional power to regulate land and water resources
within their borders with the need for a national water quality
regulation.
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\4\ Water Quality Improvement Act of 1970, Public Law 91-224, 84
Stat. 91 (April 3, 1970).
\5\ S. Rep. 91-351, at 26 (1969) (``Existing law declares it to
be the intent of Congress that all Federal departments, agencies,
and instrumentalities shall comply with water quality standards.
This declaration of intent has proved unsatisfactory. One basic
thrust of S. 7 is to require that all activity over which the
Federal Government has direct control-- . . . . federally licensed
or permitted activity--be carried out in a manner to assure
compliance with applicable water quality standards.'')
\6\ City of Milwaukee v. Illinois, 451 U.S. 304, 310, 317
(1981).
\7\ Public Law 92-500, 86 Stat. 816, as amended, Public Law 95-
217, 91 Stat. 1566, 33 U.S.C. 1251 et seq.
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EPA promulgated implementing regulations for water quality
certification in 1971 (1971 Rule) \8\ prior to enactment of the 1972
amendments to the CWA. In 1979, the Agency recognized the need to
update its water quality certification regulations, in part to be
consistent with the 1972 amendments. See 44 FR 32854, 32856 (June 7,
1979) (noting the 40 CFR part 121 regulations predated the 1972
amendments). However, the Agency declined to update the 40 CFR part 121
regulations at the time because it had not consulted with other Federal
agencies impacted by the water quality certification process, and
instead developed regulations applicable to water quality
certifications on EPA-issued National Pollutant Discharge Elimination
System (NPDES) permits. Id.; see e.g., 40 CFR 124.53 through 124.55. As
a result, the 1971 Rule did not fully reflect the current statutory
language, nor does it reflect or account for water quality
certification practices and judicial interpretations of section 401
that have evolved over the past 50 years. Following the promulgation of
the 1971 Rule, several seminal court cases have addressed fundamental
aspects of the water quality certification process, including the scope
of certification review and the appropriate timeframe for certification
decisions. States have also developed and implemented their own water
quality certification programs and practices aimed at protecting waters
within their borders. During this time, the Agency supported state and
tribal water quality certification practices and the critical role
states and tribes play in protecting their waters under section 401.\9\
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\8\ 36 FR 8563 (May 8, 1971), redesignated at 36 FR 22369, 22487
(November 25, 1971), further redesignated at 37 FR 21441 (October
11, 1972), further redesignated at 44 FR 32854, 32899 (June 7,
1979).
\9\ See Wetlands and 401 Certification: Opportunities and
Guidelines for States and Eligible Indian Tribes (April 1989)
(hereinafter, 1989 Guidance); Clean Water Act Section 401 Water
Quality Certification: A Water Quality Protection Tool for States
and Tribes (May 2010) (hereinafter, 2010 Handbook) (rescinded).
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EPA revised the 1971 Rule in 2020.\10\ The 2020 Rule did not update
the regulations applicable to water quality certifications on EPA-
issued NPDES permits but noted that the Agency would ``make any
necessary conforming regulatory changes in a subsequent rulemaking.''
85 FR 42219. The 2020 Rule represented a substantive departure from
some of the Agency's and certifying authorities' core prior
interpretations and practices with respect to water quality
certification. Moreover, the 2020 Rule deviated sharply from the
cooperative federalism framework central to section 401 and the CWA.
While the 2020 Rule did reaffirm some of the Agency's and the courts'
prior interpretations, e.g., the need for a potential point source
discharge into a water of the United States to trigger the section 401
water quality certification requirement, the 2020 Rule rejected nearly
twenty-five years of Agency practice and Supreme Court precedent
regarding the appropriate scope of certification review, i.e.,
rejecting ``activity as a whole'' for the narrower ``discharge-only''
approach. Additionally, the 2020 Rule introduced new procedural
requirements that caused disruption to state and tribal certification
programs that had evolved over the last half century. In this proposal,
the Agency is returning to some of those important core principles,
such as an ``activity as a whole'' approach to the scope of
certification review and greater deference to the role of states and
tribes in the certification process, while retaining (and adding)
elements that provide transparency and predictability for all
stakeholders.
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\10\ Clean Water Act Section 401 Certification Rule, 85 FR 42210
(July 13, 2020) (hereinafter, 2020 Rule). For further discussion on
the 2020 Rule, including legal challenges, please see Section IV.C
of this preamble.
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On January 20, 2021, President Biden signed Executive Order 13990
directing Federal agencies to review actions taken in the prior four
years that are, or may be, inconsistent with the policies stated in the
order (including, but not limited to, bolstering resilience to climate
change impacts and prioritizing environmental justice \11\). Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis, Executive Order 13990, 86 FR 7037 (published January
25, 2021, signed January 20, 2021). Pursuant to this Executive order,
EPA reviewed the 2020 Rule. EPA identified substantial concerns with a
number of its provisions that were at odds with section 401's
cooperative federalism approach to ensuring that states and tribes are
empowered to protect their water quality. See Notice of Intention to
Reconsider and Revise the Clean Water Act Section 401 Certification
Rule, 86 FR 29541, 29542 (June 2, 2021) (identifying the Agency's
concerns with the 2020 Rule). As a result, the Agency announced its
intention to revise the 2020 Rule so that it is (1) well-informed
[[Page 35320]]
by stakeholder input, (2) better aligned with the cooperative
federalism principles that have been central to the effective
implementation of the CWA, and (3) responsive to the environmental
protection and other objectives outlined in Executive Order 13990. Id.
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\11\ EPA has defined environmental justice as the ``fair
treatment and meaningful involvement of all people regardless of
race, color, national origin, or income with respect to the
development, implementation and enforcement of environmental laws,
regulations and policies.'' See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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Five months after EPA's announcement of its intent to reconsider
and revise the 2020 Rule, on October 21, 2021, a Federal district court
remanded and, while EPA had moved for a remand without vacatur,\12\
vacated the 2020 Rule. In Re Clean Water Act Rulemaking, No. 3:20-cv-
04636-WHA, 2021 WL 4924844 (N.D. Cal. October 21, 2021). The court
found that vacatur was appropriate ``in light of the lack of reasoned
decision-making and apparent errors in the rule's scope of
certification, indications that the rule contravenes the structure and
purpose of the Clean Water Act, and that EPA itself has signaled that
it could not or would not adopt the same rule upon remand.'' Slip op.
at 14-15. The effect of the court's vacatur was to reinstate the 1971
Rule, effective October 21, 2021. Defendant-intervenors appealed the
vacatur order to the U.S. Court of Appeals for the Ninth Circuit. On
April 6, 2022, the U.S. Supreme Court granted the defendant-
intervenors' application for a stay of the vacatur pending the Ninth
Circuit appeal. Louisiana v. Am. Rivers, No. 21A539 (S. Ct. April 6,
2022).\13\ The effect of the Court's stay is that the 2020 Rule once
again applies to section 401 certifications until EPA finalizes this
proposed rulemaking.
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\12\ See EPA's Motion for Remand Without Vacatur, No. 3:20-cv-
04636-WHA (July 1, 2021).
\13\ The Court's stay order does not alter EPA's legal
conclusions discussed in this proposed rule. The request for a stay
concerned only the appropriateness of the district court's vacatur
of a promulgated rule before a decision on the merits. The stay
request did not raise any issues related to the substance of CWA
section 401 certification or the merits of the 2020 Rule. See
Louisiana Application for Stay Pending Appeal in Louisiana v. Am.
Rivers, No. 21A539, pp. 1, 4, 16 (March 21, 2022) (identifying ``the
core issue in this case'' to be the appropriateness of the district
court's vacatur order) (identifying the APA--not the CWA or section
401--as the statutory provision involved in the application for
stay) (starting the application for stay with the question: ``Can a
single district court vacate a rule that an agency adopted through
notice-and-comment rulemaking without first finding that the rule is
unlawful?''). Neither the Court's majority--which did not issue an
opinion explaining its stay order--nor the dissent discussed any
aspect of section 401 certification or the 2020 Rule.
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The Agency is now proposing to revise the 2020 Rule to better
reflect the cooperative federalism framework and text of the 1972
statutory amendments and provide needed clarity on issues such as scope
of certification and the reasonable period of time for a certifying
authority to act. The proposed rule would modify the regulatory text
implementing section 401 to support a more efficient, effective, and
predictable certifying authority-driven certification process
consistent with the water quality protection and other policy goals of
Executive Order 13990. The Agency is also proposing conforming
amendments to the water quality certification regulations for EPA-
issued NPDES permits.
II. Public Participation
A. Written Comments
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2022-
0128, at https://www.regulations.gov (our preferred method), or the
other methods identified in the ADDRESSES section above. Once
submitted, comments cannot be edited or removed from the docket. EPA
may publish any comment received to its public docket. Do not submit to
EPA's docket at https://www.regulations.gov any information you
consider to be Confidential Business Information (CBI) or other
information whose disclosure is restricted by statute. Multimedia
submissions (audio, video, etc.) must be accompanied by a written
comment. The written comment is considered the official comment and
should include discussion of all points you wish to make. EPA will
generally not consider comments or comment contents located outside of
the primary submission (i.e., on the web, cloud, or other file sharing
system). For additional submission methods, the full EPA public comment
policy, information about CBI or multimedia submissions, and general
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
B. Virtual Public Hearing
Please note that because of current Centers for Disease Control and
Prevention (CDC) recommendations, as well as state and local orders for
social distancing to limit the spread of COVID-19, EPA does not
anticipate holding in-person public meetings at this time. EPA is
hosting a virtual public hearing on Monday, July 18, 2022; the public
hearing will consist of three virtual sessions, which will be recorded
for transcription purposes.
EPA will begin pre-registering speakers for the hearing upon
publication of this document in the Federal Register. To register to
speak at or attend the virtual hearing on July 18, 2022, please use the
online registration form available at https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification. The
last day to pre-register to speak at the hearing will be July 12, 2022,
three working days before the hearing date. On July 15, 2022, EPA will
post a general agenda for the hearing that will list pre-registered
speakers in approximate order at: https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification.
EPA will make every effort to follow the schedule as closely as
possible on the day of the hearing; however, please plan for the
hearing sessions to run either ahead of schedule or behind schedule. A
public hearing session may end ahead of schedule if all interested
speakers have had the opportunity to participate and if no other
speakers come forward within 15 minutes of the last speaker.
Each commenter will have five minutes to give their name and
affiliation, and provide oral testimony. EPA encourages commenters to
provide the Agency with a copy of their oral testimony electronically
by emailing it to [email protected]. EPA also recommends submitting the
text of your oral comments as written comments to the rulemaking
docket.
EPA may ask clarifying questions during the oral presentations but
will not respond to the presentations at that time. Written statements
and supporting information submitted during the comment period will be
considered with the same weight as oral comments and supporting
information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will
be posted online at https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification. While EPA expects the hearing
to go forward as set forth above, please monitor our website or contact
[email protected] to determine if there are any updates. EPA does not
intend to publish a document in the Federal Register announcing
updates.
If you require the services of a translator or special
accommodations such as audio description, please pre-register for the
hearing with [email protected] and describe your needs by July 5, 2022.
EPA may not be able to arrange accommodations without advanced notice.
III. General Information
A. What action is the Agency taking?
In this action, the Agency is publishing a proposed rule to replace
its currently effective water quality
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certification regulations at 40 CFR part 121.
B. What is the Agency's authority for taking this action?
The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including but not limited to
sections 101(d), 304(h), 401, 402, and 501(a).
C. What are the incremental costs and benefits of this action?
The Agency prepared the Economic Analysis for the Proposed ``Clean
Water Act Section 401 Water Quality Certification Improvement Rule''
(``Economic Analysis for the Proposed Rule''), available in the
rulemaking docket, for informational purposes to analyze the potential
costs and benefits associated with this proposed action. The analysis
is summarized in section VI in this preamble. The Economic Analysis for
the Proposed Rule is qualitative because of significant limitations and
uncertainties associated with estimating the incremental costs and
benefits of the proposed rule; see section VI of this preamble for
further discussion.
IV. Background
A. Development of Section 401
In 1965, Congress amended the Federal Water Pollution Control Act
(FWPCA) to require states, or, where a state failed to act, the newly
created Federal Water Pollution Control Administration, to promulgate
water quality standards for interstate waters within each state. Water
Quality Act of 1965, Public Law 89-234, 79 Stat. 903 (October 2, 1965).
These standards were meant ``to protect the public health or welfare,
enhance the quality of water and serve the purposes of [the] Act,''
which included ``enhanc[ing] the quality and value of our water
resources and [] establish[ing] a national policy for the prevention,
control, and abatement of water pollution.'' Id. Yet, only a few years
later, while debating potential amendments to the FWPCA, Congress
discovered that, despite that laudable national policy, states faced
obstacles to achieving these newly developed water quality standards
because of an unexpected source: Federal agencies. Instead of helping
states cooperatively achieve these Federal policy objectives, Federal
agencies were ``sometimes . . . a culprit with considerable
responsibility for the pollution problem which is present.'' 115 Cong.
Rec. 9011, 9030 (April 15, 1969). Federal agencies were issuing
licenses and permits ``without any assurance that [water quality]
standards [would] be met or even considered.'' S. Rep. No. 91-351, at 3
(August 7, 1969). As a result, states, industry groups, conservation
groups, and the public alike ``questioned the justification for
requiring compliance with water quality standards'' if Federal agencies
themselves would not comply with those standards. Id. at 7.
In response to such concerns, Congress introduced language that
would bolster state authority to protect their waters and ensure
federally licensed or permitted projects would not ``in fact become a
source of pollution'' either through ``inadequate planning or
otherwise.'' 115 Cong. Rec. 9011, 9030 (April 15, 1969). Under this new
provision, instead of relying on the Federal Government to ensure
compliance with water quality standards, states would be granted the
power to certify that there was reasonable assurance that federally
licensed or permitted activities would meet water quality standards
before such a license or permit could be issued. Ultimately, Congress
added this new provision as section 21(b) of the Water Quality
Improvement Act of 1970, Public Law 91-224, 84 Stat. 91 (April 3,
1970).
Under section 21(b)(1), applicants for Federal licenses or permits
were required to obtain state certification that there was reasonable
assurance that any federally licensed or permitted activity that may
result in any discharge into navigable waters would not violate
applicable water quality standards. Id. Additionally, section 21(b)
also provided a role for other potentially affected states, discussed
scenarios under which state certification for both Federal construction
and operation licenses or permits may be necessary, and provided an
opportunity for a Federal license or permit to be suspended for
violating applicable water quality standards. Section 21(b) embodied
the cooperative federalism principles from the 1965 amendments by
providing states with the opportunity to influence, yet not
``frustrate,'' the Federal licensing or permitting process. See 115
Cong. Rec. 28875, 28971 (October 7, 1969) (noting the idea of state
certification ``[arose] out of policy of the 1965 Act that the primary
responsibility for controlling water pollution rests with the
States''); see also H.R. Rep. No. 91-940, at 54-55 (March 24, 1970)
(Conf. Rep) (adding a timeline for state certification ``[i]n order to
insure that sheer inactivity by the State . . . will not frustrate the
Federal application'').
In 1972, Congress significantly revised the statutory water quality
protection framework.\14\ Clean Water Act, Public Law 92-500, 86 Stat.
816, as amended, Public Law 95-217, 91 Stat. 1566, 33 U.S.C. 1251 et
seq. While doing so, Congress reaffirmed ``the primary responsibilities
and rights of States to prevent, reduce, and eliminate pollution.''
\15\ To this end, the 1972 amendments included section 401, which
Congress considered to be ``substantially section 21(b) of the existing
law amended to assure that it conforms and is consistent with the new
requirements of the Federal Water Pollution Control Act.'' H.R. Rep.
No. 92-911 at 121 (1972). These ``new requirements'' of the 1972 Act
reflected a ``changed emphasis from water quality standards to effluent
limitations based on the elimination of any discharge of pollutants.''
S. Rep. No. 92-414 at 69 (1971). As a result, unlike section 21(b)
which focused only on compliance with water quality standards, section
401 required applicants for Federal licenses and permits to obtain
state certification of compliance with the newly developed provisions
focused on achieving effluent limitations. 33 U.S.C. 1341(a)(1). A few
years later, Congress amended section 401 to correct an omission from
the 1972 statute and clarify that it still intended for states to also
certify compliance with water quality standards. See H.R. Rep. No. 95-
830, at 96 (1977) (inserting section 303 in the list of applicable
provisions throughout section 401).\16\
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\14\ City of Milwaukee v. Illinois, 451 U.S. 304, 310, 317
(1981).
\15\ 33 U.S.C. 1251(b).
\16\ The conference substitute noted that ``[t]he inserting of
section 303 into the series of sections listed in section 401 is
intended to mean that a federally licensed or permitted activity,
including discharge permits under section 402, must be certified to
comply with State water quality standards adopted under section 303.
The inclusion of section 303 is intended to clarify the requirements
of section 401. It is understood that section 303 is required by the
provisions of section 301. Thus, the inclusion of section 303 in
section 401 while at the same time not including section 303 in the
other sections of the Act where sections 301, 302, 306, and 307 are
listed is in no way intended to imply that 303 is not included by
reference to 301 in those other places in the Act, such as sections
301, 309, 402, and 509 and any other point where they are listed.
Section 303 is always included by reference where section 301 is
listed.'' Id.
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Section 401 of the 1972 Act also introduced a new subsection,
subsection (d), that explicitly provided states with the ability to
include ``effluent limitations and other limitations, and monitoring
requirements'' in their certification to assure that the applicant will
comply not only with sections 301, 302, 306, and 307, but also with
``any other appropriate requirement of State law.'' Id. at 1341(d). In
subsection (d),
[[Page 35322]]
Congress also provided that any certification ``shall become a
condition on any Federal license or permit.'' Id.; see also S. Rep. No.
92-414, at 69 (1971) (``The certification provided by a State in
connection with any Federal license or permit must set forth effluent
limitations and monitoring requirements necessary to comply with the
provisions of this Act or under State law and such a certification
becomes an enforceable condition on the Federal license or permit.'').
Consistent with Congress's intent to empower states to protect their
waters from the effects of federally licensed or permitted projects,
this provision ``assure[d] that Federal licensing or permitting
agencies cannot override State water quality requirements.'' S. Rep.
No. 92-414, at 69 (1971).
B. Overview of CWA Section 401 Requirements
Under CWA section 401, a Federal agency may not issue a license or
permit to conduct any activity that may result in any discharge into a
water of the United States, unless the certifying authority where the
discharge would originate either issues a CWA section 401 water quality
certification or waives certification. 33 U.S.C. 1341(a)(1). The
applicant for the Federal license or permit that requires section 401
certification is responsible for obtaining certification or a waiver
from the certifying authority, which could be a state, territory,
authorized tribe, or EPA, depending on where the discharge originates.
To initiate the certification process, Federal license or permit
applicants must submit a ``request for certification'' to the
appropriate certifying authority. The certifying authority must act
upon the request within a ``reasonable period of time (which shall not
exceed one year).'' Id. Additionally, during the reasonable period of
time, certifying authorities must provide public notice of a
certification request, and where appropriate, hold a public hearing.
Id.
If a certifying authority determines that a discharge will comply
with the listed provisions in section 401(a)(1), it may grant or waive
certification. When granting a CWA section 401 certification,
certifying authorities must include conditions (e.g., ``effluent
limitations and other limitations, and monitoring requirements'')
pursuant to CWA section 401(d) necessary to assure that the applicant
for a Federal license or permit will comply with applicable provisions
of CWA sections 301, 302, 306, and 307, and with ``any other
appropriate requirement of State law.'' Id. at 1341(d). If a certifying
authority grants certification with conditions, that certification
shall become a condition on the Federal license or permit. Id. Once an
applicant provides a Federal agency with a certification, the Federal
agency may issue the license or permit. Id. at 1341(a)(1).
If a certifying authority is unable to provide such certification,
the certifying authority may deny or waive certification. If
certification is denied, the Federal agency cannot issue the Federal
license or permit. If certification is waived, the Federal agency may
issue the Federal license or permit. Certifying authorities may waive
certification expressly, or they may waive certification by ``fail[ing]
or refus[ing] to act on a request for certification within a reasonable
period of time.'' Either way, the Federal licensing or permitting
agency may issue the Federal license or permit. Id.
Although Congress provided section 401 certification authority to
the jurisdiction in which the discharge originates, Congress also
recognized that another state's or authorized tribe's water quality may
be affected by the discharge, and it created an opportunity for such a
state or tribe to raise objections to, and request a hearing on, the
Federal license or permit. See id. at 1341(a)(2). Section 401(a)(2)
requires the Federal agency to ``immediately notify'' EPA ``upon
receipt'' of a ``[license or permit] application and certification.''
Id. EPA in turn has 30 days from that notification to determine whether
the discharge ``may affect'' the water quality of any other state or
authorized tribe. Id. If the Agency makes a ``may affect''
determination, it must notify the other state or authorized tribe, the
Federal agency, and the applicant. The other state or authorized tribe
then has 60 days to determine whether the discharge will violate its
water quality requirements. If the other state or authorized tribe
makes such a determination within those 60 days, it must notify EPA and
the Federal agency, in writing, of its objection(s) to the issuance of
the Federal license or permit and request a public hearing. Id. The
Federal licensing or permitting agency is responsible for holding the
public hearing. At the hearing, EPA is required to submit its
evaluation and recommendations regarding the objection. Based on the
recommendations from the objecting state or authorized tribe and EPA's
own evaluation and recommendation, as well as any evidence presented at
the hearing, the Federal agency is required to condition the license or
permit ``in such manner as may be necessary to insure compliance with
applicable water quality requirements.'' Id. The license or permit may
not be issued ``if the imposition of conditions cannot ensure such
compliance.'' Id.
Section 401 also addresses when an applicant must provide separate
certifications for a facility's Federal construction license or permit
and any necessary Federal operating license or permit. Under section
401(a)(3), an applicant may rely on the same certification obtained for
the construction of a facility for any Federal operating license or
permit for the facility if (1) the Federal agency issuing the operating
license or permit notifies the certifying authority, and (2) the
certifying authority does not within 60 days thereafter notify the
Federal agency that ``there is no longer reasonable assurance that
there will be compliance with applicable provisions of sections [301,
302, 303, 306 and 307 of the CWA].'' Id.\17\
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\17\ Section 401(a)(3) identifies the bases a certifying
authority may rely upon for finding that there is no longer
reasonable assurance. These are changes after certification was
granted in: construction or operation of the facility,
characteristics of the water where the discharge occurs, or the
applicable water quality criteria or effluent limits or other
requirements. Id. at 1341(a)(3).
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Sections 401(a)(4) and (a)(5) discuss circumstances where the
certified Federal license or permit may be suspended by the Federal
agency. First, a Federal agency may suspend a license or permit where a
certifying authority determines during a pre-operation inspection of
the facility or activity that it will violate applicable water quality
requirements. Id. at 1341(a)(4). This pre-operation inspection and
possible suspension apply only where a facility or activity does not
require a separate operating license or permit. Under section 401, the
Federal agency may not suspend the license or permit unless it holds a
public hearing.\18\ Id. Once a license or permit is suspended, it must
remain suspended until the certifying authority notifies the Federal
agency that there is reasonable assurance that the facility or activity
will not violate applicable water quality requirements. Id. Second, a
Federal agency may suspend or revoke a certified license or permit if a
judgment is entered under the CWA that the facility or activity
violated applicable provisions of sections 301, 302, 303, 306, or 307
of the CWA. Id. at 1341(a)(5). Section 401 not only identifies the
roles and obligations of Federal license or permit applicants,
certifying authorities, and Federal agencies, it also provides specific
roles
[[Page 35323]]
for EPA. First, EPA may act as a certifying authority where a state or
tribe ``has no authority to give such certification.'' Id. at
1341(a)(1). Second, as discussed above, EPA is responsible for
notifying other states or authorized tribes that may be affected by a
discharge from a federally licensed or permitted activity, and where
required, for providing an evaluation and recommendation(s) on such
other state or authorized tribe's objections. Id. at 1341(a)(2).
Lastly, EPA is responsible for providing technical assistance upon
request from Federal agencies, certifying authorities, or Federal
license or permit applicants. Id. at 1341(b).
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\18\ Each Federal licensing or permitting agency may have its
own regulations regarding additional processes for suspending a
license or permit.
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C. Prior Rulemaking Efforts Addressing Section 401
In the last 50 years, EPA has undertaken two rulemaking efforts
focused solely on addressing water quality certification, one of which
preceded the 1972 enactment of the CWA. The Agency has also developed
several guidance documents on the section 401 process. This section of
the preamble discusses EPA's major rulemaking and guidance efforts over
the last 50 years, including most recently, the 2020 Rule and EPA's
review of it pursuant to Executive Order 13990.
1. 1971 Rule
In February 1971, EPA proposed regulations implementing section
401's predecessor provision, section 21(b). 36 FR 2516 (February 5,
1971). Those proposed regulations were divided into four subparts, one
of which provided ``definitions of general applicability for the
regulations and would provide for the uniform content and form of
certification.'' The other three subparts focused on EPA's roles. Id.
In May 1971, after receiving public comments, EPA finalized the water
quality certification regulations with the proposed four-part structure
at 18 CFR part 615. 36 FR 8563 (May 8, 1971).
The first subpart of the 1971 Rule (subpart A) established
requirements that applied generally to all stakeholders in the
certification process, including an identification of information that
all certifying authorities must include in a certification. According
to the 1971 Rule, a certifying authority was required to include
several components in a certification, including the name and address
of the project applicant; a statement that the certifying authority
either examined the Federal license or permit application or examined
other information from the project applicant and, based upon that
evaluation, concluded that ``there is reasonable assurance that the
activity will be conducted in a manner which will not violate
applicable water quality standards;'' any conditions that the
certifying authority deemed ``necessary or desirable for the discharge
of the activity;'' and any other information the certifying authority
deemed appropriate. 40 CFR 121.2(a) (2019). Additionally, the 1971 Rule
allowed for modifications to certifications upon agreement by the
certifying authority, the Federal licensing or permitting agency, and
EPA. Id. at Sec. 121.2(b) (2019).
The second subpart of the 1971 Rule (subpart B) established a
process for EPA to provide notification of potential water quality
affects to other potentially affected jurisdictions. Under the 1971
Rule, the Regional Administrator was required to review the Federal
license or permit application, the certification or waiver, and, where
requested by EPA, any supplemental information provided by the Federal
licensing or permitting agency.\19\ If the Regional Administrator
determined that there was ``reason to believe that a discharge may
affect the quality of the waters of any State or States other than the
State in which the discharge originates,'' the Regional Administrator
would notify each affected state within 30 days of receipt of the
application materials and certification. Id. at Sec. Sec. 121.13,
121.16 (2019). In cases where the Federal licensing or permitting
agency held a public hearing on the objection raised by an affected
jurisdiction, the Federal agency was required to forward notice of such
objection to the Regional Administrator no later than 30 days prior to
the hearing. Id. at Sec. 121.15 (2019). At the hearing, the Regional
Administrator was required to submit an evaluation and
``recommendations as to whether and under what conditions the license
or permit should be issued.'' Id.
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\19\ If the documents provided are insufficient to make the
determination, the Regional Administrator can request any
supplemental information ``as may be required to make the
determination.'' 40 CFR 121.12.
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Subpart B also provided that certifying authorities may waive the
certification requirement under two circumstances: first, when the
certifying authority sends written notification expressly waiving its
authority to act on a request for certification; and second, when the
Federal licensing or permitting agency sends written notification to
the EPA Regional Administrator that the certifying authority failed to
act on a certification request within a reasonable period of time after
receipt of such a request. Id. at Sec. 121.16 (2019). The 1971 Rule
provided that the Federal licensing or permitting agency determined
what constitutes a ``reasonable period of time,'' and that the period
shall generally be six months, but in any event, not exceed one year.
Id. at Sec. 121.16(b) (2019).
The third subpart of the 1971 Rule (subpart C) established
requirements that only applied when EPA acted as the certifying
authority, including identifying specific information that must be
included in a certification request. The project applicant was required
to submit to the EPA Regional Administrator a signed request for
certification that included a ``complete description of the discharge
involved in the activity for which certification is sought,'' which
included five items: the name and address of the project applicant, a
description of the facility or activity and of any related discharge
into waters of the United States, a description of the function and
operation of wastewater treatment equipment, dates on which the
activity and associated discharge would begin and end, and a
description of the methods to be used to monitor the quality and
characteristics of the discharge. Id. at Sec. 121.22 (2019). Once the
request was submitted to EPA, the Regional Administrator was required
to provide public notice of the request and an opportunity to comment.
The 1971 Rule specifically stated that ``[a]ll interested and affected
parties will be given reasonable opportunity to present evidence and
testimony at a public hearing on the question whether to grant or deny
certification if the Regional Administrator determined that such a
hearing is necessary or appropriate.'' Id. at Sec. 121.23 (2019). If,
after consideration of relevant information, the Regional Administrator
determines that there is ``reasonable assurance that the proposed
activity will not result in a violation of applicable water quality
standards,'' the Regional Administrator would issue the certification.
Id. at Sec. 121.24 (2019).
The fourth and final subpart of the 1971 Rule (subpart D) provided
that the Regional Administrator ``may, and upon request shall'' provide
Federal licensing and permitting agencies with information regarding
water quality standards and advise them as to the status of compliance
by dischargers with the conditions and requirements of applicable water
quality standards. Id. at Sec. 121.30 (2019).
In November 1971, EPA reorganized and transferred several
regulations, including the water quality certification regulations,
into title 40 of the Code of Federal Regulations. EPA subsequently
[[Page 35324]]
redesignated the water quality certification regulations twice in the
1970s. See 36 FR 22369, 22487 (November 25, 1971), redesignated at 37
FR 21441 (October 11, 1972), further redesignated at 44 FR 32854, 32899
(June 7, 1979). The last redesignation effort was part of a rulemaking
that extensively revised the Agency's NPDES regulations. In the revised
NPDES regulations, EPA addressed water quality certifications on EPA-
issued NPDES permits separate from the 1971 Rule. EPA acknowledged that
the 1971 Rule was ``in need of revision'' because the ``substance of
these regulations predates the 1972 amendments to the Clean Water
Act.'' 44 FR 32880. However, EPA declined to revise the 1971 Rule
because it had not consulted the other Federal agencies impacted by the
water quality certification process. Id. at 32856. Instead, the Agency
finalized regulations applicable to certification on EPA-issued NPDES
permits. Id. at 32880. These regulations, which included a default
reasonable period of time of 60 days, limitations on certification
modifications, and requirements for certification conditions, were
developed in response to practical challenges and issues arising from
certification on EPA-issued permits. Id. Ultimately, despite the
changes Congress made to the statutory text in 1972 and opportunities
it had to revisit the regulatory text during redesignation efforts in
the 1970s, EPA did not substantively change the 1971 Rule until 2020.
2. EPA Guidance on 1971 Rule
Although EPA did not pursue any rulemaking efforts until 2019, the
Agency issued three national guidance documents on the water quality
certification process set forth by the 1971 Rule. The first and second
guidance documents recognized the vital role section 401 certification
can play in protecting state and tribal water quality, sought to inform
states and tribes how to use the certification program to protect their
waters, and explained how to leverage available resources to operate or
expand their certification programs. These documents provided states
and tribes with background on the certification process, discussed the
relevant case law, and identified data sources that could inform the
certification review process. Additionally, both documents provided
tangible examples of state and tribal experiences with section 401 that
could inform other states and tribes interested in developing their
certification programs.
The first guidance document, issued in 1989, focused on how states
and tribes could use water quality certifications to protect wetlands.
Wetlands and 401 Certification: Opportunities and Guidelines for States
and Eligible Indian Tribes (April 1989) (``1989 Guidance''). While the
guidance document focused on the use of water quality certifications in
lieu of, or in addition to, state or tribal wetlands regulatory
programs, it provided helpful background information on the
certification process. It also highlighted various state programs and
water quality certification practices to demonstrate how other
certifying authorities could approach the certification process. For
example, the guidance document highlighted a certification denial
issued by the Pennsylvania Department of Environmental Resources to
illustrate that ``all of the potential effects of a proposed activity
on water quality--direct and indirect, short and long term, upstream
and downstream, construction and operation--should be part of a State's
certification review.'' Id. at 22-23. Additionally, the 1989 Guidance
discussed considerations states or tribes could examine when developing
their own section 401 implementing regulations, as well as programs and
resources states and tribes could look to for technical support when
making certification decisions. Id. at 30-37.
The second guidance document, issued in 2010, reflected the
development of case law and state and tribal program experiences over
the two decades following the 1989 Guidance. Clean Water Act Section
401 Water Quality Certification: A Water Quality Protection Tool for
States and Tribes (May 2010) (``2010 Handbook'') (rescinded). Instead
of focusing on certifications in the context of wetland protection, the
2010 Guidance focused more broadly on how the certification process
could help states and tribes achieve their water quality goals. Like
the 1989 Guidance, the 2010 Guidance discussed the certification
process, using state and tribal programs as examples, and explored
methods and means for states and tribes to leverage available funding,
staffing, and data sources to fully implement a water quality
certification program. This guidance document was rescinded on June 7,
2019, concurrent with the publication of the third guidance document.
The third guidance document was issued in 2019 pursuant to
Executive Order 13868 (now revoked). Clean Water Act Section 401
Guidance for Federal Agencies, States and Authorized Tribes (June 2019)
(``2019 Guidance'') (rescinded). The 2019 guidance document said it was
meant to ``facilitate consistent implementation of section 401 and 1971
certification regulations'' because the 2010 Handbook allegedly did not
``reflect current case law interpreting CWA section 401.'' 85 FR 42213.
The guidance document focused on three topics: timeline for
certification review and action, the scope of section 401, and the
information within the scope of a certifying authority's review. 2019
Guidance, at 1. The 2019 Guidance was rescinded on July 13, 2020,
concurrent with the publication of the final 2020 Rule.
3. Development of the 2020 Rule
In addition to directing EPA to review its 2010 Handbook and issue
new section 401 guidance, Executive Order 13868 also directed EPA to
review the 1971 Rule and (1) issue a new proposed regulation within 120
days and (2) issue a final regulation within 13 months. 84 FR 13495,
13496 (April 15, 2019). It directed the Agency to focus on various
aspects of the certification process such as the scope of review, and
determine whether ``any provisions thereof should be clarified to be
consistent with the policies described in section 2 of [the] order.''
Id. EPA released the proposed rule on August 22, 2019.\20\ EPA
promulgated a final rule on July 13, 2020. Clean Water Act Section 401
Certification Rule, 85 FR 42210 (July 13, 2020) (``2020 Rule'').
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\20\ Updating Regulations on Water Quality Certifications, 84 FR
44080 (August 22, 2019).
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The 2020 Rule reaffirmed that Federal agencies unilaterally set the
reasonable period of time, clarified that the certification requirement
was triggered by a federally licensed or permitted discharge into a
``water of the United States,'' and reaffirmed that certifying
authorities may explicitly waive certification. The 2020 Rule also
introduced several new features including one that allowed Federal
agencies to review certification decisions for compliance with the 2020
Rule's requirements and, if the certification decision did not comply
with these requirements, allowed Federal agencies to deem such non-
compliant certifications as waived. The 2020 Rule, citing Hoopa Valley
Tribe v. FERC, 913 F.3d 1099 (DC Cir. 2019), prohibited a certifying
authority from requesting a project applicant to withdraw and resubmit
a certification request. The 2020 Rule also rejected the scope of
certification review (``activity as a whole'') affirmed by the Supreme
Court in PUD No. 1 of Jefferson County
[[Page 35325]]
v. Washington Department of Ecology, 511 U.S. 700 (1994), in favor of a
more truncated interpretation (``discharge-only'' approach) favored by
two dissenting Justices in that case.
Following publication, the 2020 Rule was subject to legal challenge
in three Federal district courts by states, tribes, and non-
governmental organizations.\21\ On October 21, 2021, following
extensive briefing and a hearing on EPA's motion for remand without
vacatur, the U.S. District Court for the Northern District of
California remanded and vacated \22\ the 2020 Rule. In re Clean Water
Act Rulemaking, No. 3:20-cv-04636-WHA, 2021 WL 4924844 (N.D. Cal.
October 21, 2021). The court found that vacatur was appropriate ``in
light of the lack of reasoned decision-making and apparent errors in
the rule's scope of certification, indications that the rule
contravenes the structure and purpose of the Clean Water Act, and that
EPA itself has signaled that it could not or would not adopt the same
rule upon remand.'' Slip op. at 14-15, 2021 WL 4924844, at *8. The
court order required a temporary return to EPA's 1971 Rule until EPA
finalizes a new rule.\23\ This case is currently on appeal by industry
stakeholders and eight states in the U.S. Court of Appeals for the
Ninth Circuit. On March 21, 2022, industry stakeholders and eight
states filed an application for a stay of the vacatur pending appeal in
the Ninth Circuit. On April 6, 2022, the U.S. Supreme Court granted the
application for a stay of the vacatur pending resolution of the appeal
of the vacatur in the Ninth Circuit. Louisiana v. Am. Rivers, No.
21A539 (S. Ct. April 6, 2022).
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\21\ In Re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA
(N.D. Cal.); Delaware Riverkeeper et al. v. EPA, No. 2:20-cv-03412
(E.D.P.A.); S.C. Coastal Conservation League v. EPA, No. 2:20-cv-
03062 (D.S.C.).
\22\ To remand a rule means that the court returns the rule to
the Agency for further action. To vacate a rule means that the court
decides that rule is null and void.
\23\ The two other courts also remanded the 2020 Rule to EPA,
but without vacatur. Order, Delaware Riverkeeper v. EPA, No. 2:20-
cv-03412 (E.D. Pa. August 6, 2021) (determining that vacatur was not
appropriate because the court ``has not yet, and will not, make a
finding on the substantive validity of the Certification Rule'');
Order, S.C. Coastal Conservation League v. EPA, No. 2:20-cv-03062
(D.S.C. August 2, 2021) (remanding without vacating).
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4. Executive Order 13990 and Review of the 2020 Rule
On January 20, 2021, President Biden signed Executive Order 13990,
Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis (E.O.). 86 FR 7037 (published January 25,
2021, signed January 20, 2021). The E.O. provides that it's the policy
of the Administration to listen to the science; to improve public
health and protect our environment; to ensure access to clean air and
water; to limit exposure to dangerous chemicals and pesticides; to hold
polluters accountable, including those who disproportionately harm
communities of color and low-income communities; to reduce greenhouse
gas emissions; to bolster resilience to the impacts of climate change;
to restore and expand our national treasures and monuments; and to
prioritize both environmental justice and the creation of the well-
paying union jobs necessary to deliver on these goals. Id. at 7037,
Section 1. The E.O. ``directs all executive departments and agencies
(agencies) to immediately review and, as appropriate and consistent
with applicable law, take action to address the promulgation of Federal
regulations and other actions during the last 4 years that conflict
with these important national objectives, and to immediately commence
work to confront the climate crisis.'' Id. ``For any such actions
identified by the agencies, the heads of agencies shall, as appropriate
and consistent with applicable law, consider suspending, revising, or
rescinding the agency actions.'' Id., Section 2(a). The E.O. also
revoked Executive Order 13868 of April 10, 2019 (Promoting Energy
Infrastructure and Economic Growth), which initiated development of the
2020 Rule. The 2020 Rule also was specifically identified for review
under the E.O. See Fact Sheet: List of Agency Actions for Review,
available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/ (last
visited on January 27, 2022).
EPA reviewed the 2020 Rule in accordance with Executive Order
13990, and in the spring of 2021, determined that it would propose
revisions to the 2020 Rule through a new rulemaking effort. See Notice
of Intention to Reconsider and Revise the Clean Water Act Section 401
Certification Rule, 86 FR 29541 (June 2, 2021). EPA considered a number
of factors in making this determination, including but not limited to:
the text of CWA section 401; Congressional intent and the cooperative
federalism framework of CWA section 401; concerns raised by
stakeholders about the 2020 Rule, including implementation related
feedback; the principles outlined in the E.O. and issues raised in
ongoing litigation challenging the 2020 Rule. Id. In particular, the
Agency identified substantial concerns about whether portions of the
2020 Rule impinged on the cooperative federalism principles central to
CWA section 401. The Agency identified this and other concerns as they
related to different provisions of the 2020 Rule including
certification requests, the reasonable period of time, scope of
certification, certification actions and Federal agency review,
enforcement, and modifications. See id. at 29543-44.
Agencies have inherent authority to reconsider past decisions and
to revise, replace, or repeal a decision to the extent permitted by law
and supported by a reasoned explanation. FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox''); Motor Vehicle Mfrs.
Ass'n of the U.S., Inc. v. State Farm Mutual Automobile Ins. Co., 463
U.S. 29, 42 (1983); see also Encino Motorcars, LLC v. Navarro, 579 U.S.
211, 221 (2016) (``Agencies are free to change their existing policies
as long as they provide a reasoned explanation for the change.''). Such
a decision need not be based upon a change of facts or circumstances. A
revised rulemaking based ``on a reevaluation of which policy would be
better in light of the facts'' is ``well within an agency's
discretion.'' Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1038
& 1043 (DC Cir. 2012) (citing Fox, 556 U.S. at 514-15). The Agency has
reviewed the 2020 Rule and determined that the rule should be replaced.
Accordingly, EPA is now proposing to revise the 2020 Rule to be
fully consistent with the 1972 CWA amendments, the Agency's legal
authority, and the principles outlined in Executive Order 13990. This
proposed rule would revise and replace the 2020 Rule to better reflect
the 1972 CWA's statutory text, the legislative history regarding
section 401, and the broad water quality protection goals of the Act.
In addition, the proposed rule will clarify certain aspects of section
401 implementation that have evolved in response to over 50 years of
judicial interpretation and certifying authority practice, and support
an efficient and predictable water quality certification process that
is consistent with the cooperative federalism principles central to CWA
section 401.
D. Summary of Stakeholder Outreach
Following the publication of EPA's notice of intent to revise the
2020 Rule, the Agency opened a public docket to receive written pre-
proposal recommendations for a 60-day period beginning on June 2, 2021,
and concluding on August 2, 2021. The
[[Page 35326]]
Agency received nearly 3,000 recommendations from members of the
public, which can be found in the pre-proposal docket. See Docket ID
No. EPA-HQ-OW-2021-0302. The Federal Register publication requested
feedback related to key issues identified during implementation of the
2020 Rule, including but not limited to issues regarding pre-filing
meeting requests, certification requests, reasonable period of time,
scope of certification, certification actions and Federal agency
review, enforcement, modifications, neighboring jurisdictions, data and
other information, and implementation coordination. See 86 FR 29543-44.
EPA also held a series of virtual listening sessions for certifying
authorities (June 14, June 23, and June 24, 2021), project applicants
(June 15, 2021), and the public (June 15, June 23, 2021) to gain
further pre-proposal input. See id. at 29544 (announcing EPA's
intention to hold multiple webinar-based listening sessions). EPA also
met with stakeholders upon request during development of this proposed
rule. More information about the outreach and engagement conducted by
EPA during the pre-proposal input period can be found in Docket ID No.
EPA-HQ-OW-2022-0128. Additionally, EPA also met with other Federal
licensing and permitting agencies to solicit feedback on the Federal
Register publication. At the virtual listening sessions, the Agency
provided a presentation that provided background on section 401 and
prior Agency actions and sought input on the Agency's intent to revise
the 2020 Rule and the specific issues included in the Federal Register
publication described above.
The Agency heard from stakeholders representing a diverse range of
interests and positions and received a wide variety of recommendations
and suggestions during this pre-proposal outreach process. Certifying
authorities expressed concern about the limited role of states and
tribes under the 2020 Rule, and they called for increased flexibility
in implementing section 401 to fully protect their water resources.
During the project proponent listening session, project proponents
shared feedback about the need to streamline the certification process
and recommended that the new rule prevent delays in determining
certification decisions. In the general public listening sessions,
speakers from non-governmental environmental and water conservation
organizations reinforced the idea that states and tribes should be
accorded greater deference in the certification process. An overarching
theme articulated by many speakers from various stakeholder groups was
the need for EPA's new rule to provide increased guidance and clarity.
The Agency also initiated a tribal consultation and coordination
process on June 7, 2021. The Agency engaged tribes over a 90-day
consultation period during development of this proposed rule that
concluded on September 7, 2021, including two tribal consultation
kickoff webinars on June 29, 2021, and July 7, 2021. The Agency
received consultation letters from eight tribes and three tribal
organizations. The Agency did not receive any requests for consultation
during this time, although several tribes expressed an interest in
receiving additional information and ongoing engagement throughout the
rulemaking process. The Agency anticipates that consultation meetings
will be held with tribes during the rulemaking process. Several tribes
commented that the 2020 Rule impaired or undermined tribal sovereignty
and their ability to protect tribal waters. Many tribes provided input
regarding section 401 certification process improvements. Most tribes
were generally positive about a provision for a pre-filing meeting
request, however some had concerns that the 30-day wait period (before
a project proponent could request certification) is very rigid and
would like to see more flexibility in allowing certifying authorities
to waive the 30-day requirement. Some tribes believe ``the reasonable
period of time'' should start when the application is deemed complete,
not when the initial request for certification is received. Most tribes
argued that the 2020 Rule's narrowing of the scope of certification was
inconsistent with Congressional intent for tribes and states to have an
effective tool to protect the quality of waters under their
jurisdiction. A few tribal organizations expressed concern that current
implementation of section 401(a)(2) does not protect off-reservation
treaty rights from discharges. Additional information about the tribal
consultation process can be found in section VII.F in this preamble and
the Summary of Tribal Consultation and Coordination, which is available
in the docket for this proposed rule.
The Agency has considered the input it received as part of the
tribal consultation process and other opportunities for pre-proposal
recommendations. EPA welcomes feedback on this proposed rule through
the upcoming virtual public hearing and the 60-day public comment
period initiated through publication of this action. The Agency will
consider comments received during the comment period on this proposal,
and this consideration will be reflected in the final rule and
supporting documents.
V. Proposed Rule
EPA is the primary agency responsible for developing regulations
and guidance to ensure effective implementation of all CWA programs,
including section 401. See 33 U.S.C. 1251(d), 1361(a). The Agency is
proposing to revise the section 401 regulations to better align its
regulations with the cooperative federalism and water quality
protection principles enshrined in the text and legislative history of
the 1972 CWA. Additionally, the Agency is seeking to provide greater
clarity and acknowledgment of essential water quality protection
concepts from Executive Order 13990. In addition to providing a
necessary regulatory reset on significant issues such as the scope of
certification, Federal agency review, and the reasonable period of
time, the Agency proposes to update the regulatory text to foster a
more efficient and predictable certification process. As it has already
demonstrated through its extensive pre-proposal outreach, EPA intends
for this rulemaking to be well-informed by stakeholder input on all
aspects of the certification process and welcomes comment on all facets
of this proposal.
In light of the proposed revisions to part 121, EPA is also
proposing to make conforming changes to the part 124 regulations
governing CWA section 401 certifications for EPA-issued NPDES permits.
The purpose of these conforming changes is to ensure that--assuming the
proposed part 121 changes are adopted--the part 124 regulations are
consistent with the revised provisions of part 121. To that end, EPA is
proposing to make targeted deletions to specific provisions of the
regulations at 40 CFR 124.53 and 124.55 to conform those sections with
this proposal, explicitly deleting 40 CFR 124.53(b), (c), and (e), as
well as Sec. 124.55(b). EPA is also proposing to make targeted
revisions to the regulations at 40 CFR 124.53(d), 124.54(a) and (b),
124.55(a), (c), and (d), consistent with those proposed deletions and
this proposal. EPA is also proposing to make targeted conforming
revisions to the regulations at 40 CFR 122.4(b) and 122.44(d)(3). EPA
explains in further detail the reasons for each conforming change
(beyond mere technical revisions) following the preamble discussion of
the part 121 proposal that necessitates conforming revisions to part
124. EPA is seeking comment on whether the Agency has identified all
changes to the part 124 regulations that conflict or potentially
conflict with this proposal
[[Page 35327]]
and therefore need to be made to conform. This proposed part 121
regulations would apply to all Federal licenses or permits subject to
CWA section 401 certification.\24\ EPA accordingly intends for this
part 121 proposal to apply to EPA-issued NPDES permits, even where EPA
is not proposing conforming edits to part 124.
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\24\ See proposed Sec. 121.1(e), (h) (defining ``Federal
agency'' to mean ``any agency of the Federal Government to which
application is made for a license or permit that is subject to Clean
Water Act section 401,'' and similarly defining ``license or
permit'' to mean ``any license or permit issued or granted by an
agency of the Federal Government to conduct any activity which may
result in any discharge into waters of the United States'').
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EPA is also proposing to make several revisions to the definition
section in light of this proposed rulemaking. EPA is proposing to make
minor revisions to the definition of ``Administrator'', currently
located at Sec. 121.1(a), to remove the reference to authorized
representatives. Instead, the Agency is proposing to add a separate
definition for ``Regional Administrator''. See proposed Sec. 121.1(k).
The Agency is also proposing to remove the definition for
``certification'', which is currently located at Sec. 121.1(b),
because it does not believe it is necessary to define the term.
Additionally, the Agency is proposing to remove the definition for
``certified project'', currently located at Sec. 121.1(d), and
``proposed project'', currently located at Sec. 121.1(k), because the
Agency is not proposing to use these terms throughout other regulatory
provisions. Other proposed revisions to regulatory definitions are
discussed throughout this preamble; the Agency welcomes any comments on
these definitions.
A. When Section 401 Certification Is Required
In this proposed rulemaking, EPA is proposing a number of
definitional and other revisions to clarify the circumstances under
which a section 401 certification is required. These proposed revisions
are consistent with the Agency's longstanding interpretation of section
401, including in the 2020 Rule, that an applicant for a Federal
license or permit to conduct any activity that may result in any point
source discharge into the navigable waters is required to obtain a
section 401 certification. Accordingly, the Agency is proposing minor
revisions to the regulatory text currently located at Sec. 121.2 to
affirm that a Federal license or permit for any potential point source
discharge into a water of the United States requires a certification or
waiver.
With respect to the definition section, EPA is proposing to clarify
the roles of the stakeholders in the certification process. First, the
Agency is proposing non-substantive modifications to the definition of
``Federal agency'' currently located at Sec. 121.1(g). Second, the
Agency is proposing to retain the term ``project proponent'' to define
the stakeholder seeking certification. While the term ``applicant'' is
used in section 401, that term does not clearly reflect and include all
the stakeholders who might seek certification. For example, Federal
agencies themselves (and not third-party applicants) seek section 401
certification on the issuance of general permits (e.g., U.S. Army Corps
of Engineers' (Corps') Nationwide Permits, EPA's Construction General
Permits). Additionally, contractors or other agents will often seek
certification on behalf of a project applicant. The term ``project
proponent'' is meant to include the applicant for a Federal license or
permit, as well as any other entity that may seek certification (e.g.,
agent of an applicant or a Federal agency, such as EPA when it is the
permitting authority for a National Pollutant Discharge Elimination
System (NPDES) permit). Lastly, the Agency is proposing non-substantive
changes to the definition of ``certifying authority'' currently located
at Sec. 121.1(e). EPA is requesting comment on these definitions and
the proposed language to clarify the circumstances under which section
401 certification is required. EPA's rationale for determining when
certification is required is discussed in further detail below.
1. Federally Licensed or Permitted Activity
Section 401 certification is required for any Federal license or
permit to conduct any activity that may result in any discharge into a
``water of the United States.'' 33 U.S.C. 1341(a)(1). The Agency is
proposing to retain the 2020 Rule's definition for a ``license or
permit'' with minor modifications.
The Agency is not proposing to provide an exclusive list of Federal
licenses and permits that may be subject to section 401. The CWA itself
does not list specific Federal licenses and permits that are subject to
section 401 certification requirements. The most common examples of
licenses or permits that may be subject to section 401 certification
are CWA section 402 NPDES permits issued by EPA in jurisdictions where
the EPA administers the NPDES permitting program; CWA section 404
permits for the discharge of dredged or fill material and Rivers and
Harbors Act sections 9 and 10 permits issued by the Army Corps of
Engineers; and hydropower and interstate natural gas pipeline licenses
issued by the Federal Energy Regulatory Commission (FERC).\25\
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\25\ The Corps also requires section 401 certification for its
civil works projects, even though there is no Federal license or
permit associated with those projects. The Corps' current
regulations require the Corps to seek section 401 certification for
dredge and fill projects involving a discharge into waters of the
United States, regardless of whether the Corps issues itself a
permit for those activities. See 33 CFR 336.1(a)(1) (``The CWA
requires the Corps to seek state water quality certification for
discharges of dredged or fill material into waters of the U.S.'');
33 CFR 335.2 (``[T]he Corps does not issue itself a CWA permit to
authorize Corps discharges of dredged material or fill material into
U.S. waters but does apply the 404(b)(1) guidelines and other
substantive requirements of the CWA and other environmental
laws.''). In these instances, EPA understands that the Corps will
follow the certification process as described in this proposal.
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Section 401 certification is not required for licenses or permits
issued by a state or tribe that has been authorized to administer a
permit program. For example, states and tribes may be authorized to
administer the section 402 NPDES permitting program \26\ or the section
404 dredge and fill permitting program.\27\ Permits issued by states or
tribes pursuant to their approved program are not subject to section
401 of the CWA as the programs operate in lieu of the Federal program,
under state or tribal authorities. The state or tribal permit is not a
``Federal'' permit for purposes of section 401. The CWA is clear that
the license or permit prompting the need for a section 401
certification must be a Federal license or permit, that is, one issued
by a Federal agency. This conclusion is supported by the legislative
history of CWA section 401, which noted that ``since permits granted by
States under section 402 are not Federal permits--but State permits--
the certification procedures are not applicable.'' H.R. Rep. No. 92-
911, at 127 (1972). Additionally, the legislative history of the CWA
amendments of 1977, discussing state assumption of section 404, also
noted that ``[t]he conferees wish to emphasize that such a State
program is one which is established under State law and which functions
in lieu of the Federal program. It is not a delegation of Federal
authority.'' H.R. Rep. No. 95-830, at 104 (1977).
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\26\ 33 U.S.C. 1342(b).
\27\ 33 U.S.C. 1344(g).
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2. Potential for a Discharge To Occur
The presence of, or potential for, a discharge is a key determinant
for when a water quality certification is required. 33 U.S.C.
1341(a)(1) (``A certification is required for ``a Federal license or
permit to conduct any activity . . . which may
[[Page 35328]]
result in any discharge into the navigable waters. . .'') (emphasis
added).
The Agency is not proposing a specific process or procedure for
project proponents, certifying authorities, and/or Federal agencies to
follow in order to determine whether or not a federally licensed or
permitted activity may result in a discharge and therefore require
section 401 certification. After 50 years of implementing section 401,
EPA's experience is that Federal agencies and certifying authorities
are well-versed in the practice of determining which Federal licenses
or permits may result in discharges. Ultimately, the project proponent
is responsible for obtaining all necessary permits and authorizations,
including a section 401 certification. If there is a potential for a
project to discharge into a ``water of the United States,'' a Federal
agency cannot issue the Federal license or permit unless a section 401
certification is granted or waived by the certifying authority. EPA
recommends that project proponents engage in early discussions with
certifying authorities and Federal agencies to determine whether their
federally licensed or permitted activity will require section 401
certification.
The Agency requests comment on whether it should propose a specific
process or procedure for project proponents, certifying authorities,
and/or Federal agencies to follow in order to determine whether or not
a federally licensed or permitted activity may result in a discharge
and therefore require section 401 certification.
3. Discharge
Consistent with the Agency's longstanding position and the 2020
Rule, EPA is proposing that a point source discharge, or potential for
one, is required to trigger section 401. See proposed Sec. 121.2.
Additionally, the Agency is clarifying that, consistent with S.D.
Warren v. Maine Board of Environmental Protection, 547 U.S. 370 (2006),
discussed below, a point source discharge triggering section 401 does
not require the addition of pollutants.
The CWA provides that ``[t]he term `discharge' when used without
qualification includes a discharge of a pollutant, and a discharge of
pollutants.'' 33 U.S.C. 1362(16). The CWA defines ``discharge of a
pollutant'' to mean ``any addition of any pollutant to navigable waters
from any point source.'' Id. at 1362(12). EPA and the Corps have long
interpreted the definition of ``discharge'' broadly to include, but not
be limited to, ``discharges of pollutants.''
This interpretation is consistent with the text of the statute as
interpreted by the U.S. Supreme Court. In S.D. Warren Co, a hydropower
dam operator asserted that its dams did not result in discharges that
would require section 401 certification because the dams only released
water that ``adds nothing to the river that was not there above the
dams.'' 547 U.S. 370, 374-75, 378 (2006). The Court stated that the
term discharge is broader than ``discharge of a pollutant'' and
``discharge of pollutants.'' Observing that the term ``discharge'' is
not specifically defined in the statute, the Court applied the ordinary
dictionary meaning, ``flowing or issuing out.'' Id. In applying this
meaning to hydroelectric dams, the Court held that releasing water
through a dam constituted a discharge for purposes of section 401 and,
thus, the CWA provided states with the ability to address water quality
impacts from these releases through the certification process. Id. at
385-86. The Court explicitly rejected the argument that an ``addition''
was necessary for a ``discharge,'' stating ``[w]e disagree that an
addition is fundamental to any discharge.'' Id. at 379 n.5.
While the Supreme Court has held that the addition of a pollutant
is not necessary for a discharge to prompt the need for a CWA section
401 certification, the Ninth Circuit has held that such certification
triggering discharges must be from point sources. Or. Natural Desert
Ass'n v. Dombeck, 172 F.3d 1092, 1093-94 (9th Cir. 1998)
(``Dombeck'').\28\ In Dombeck, the Ninth Circuit addressed the question
whether ``the term `discharge' in [section 401] includes releases from
nonpoint sources as well as releases from point sources.'' Id. At issue
in that case was whether a cattle-grazing permit issued by the U.S.
Forest Service required a section 401 certification.
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\28\ In Dombeck, the United States took the position that the
term ``discharge'' at 33 U.S.C. 1362(14) did not include nonpoint
sources because there was nothing in the definition or the
legislative history of the term that suggested it extended to
nonpoint source pollution. Brief of the United States in Or. Natural
Desert Ass'n v. Dombeck, Nos. 97-3506, 97-35112, 97-35115, at 18-21
(9th Cir. 1997). Additionally, the United States argued that section
401's legislative history did not suggest that ``discharge''
included nonpoint sources. Id. at 23-24.
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The court observed that the word ``discharge'' is used consistently
in the Act to refer to releases from point sources, whereas the term
``runoff'' is used to describe pollution flowing from nonpoint sources,
and Congress did not say ``runoff'' in section 401. Id. at 1097. The
court also found that all of the CWA sections cross-referenced in
section 401(a)(1) were related to the regulation of point sources. Id.
Regarding the inclusion of section 303, the CWA section requiring
states to adopt and EPA to approve water quality standards, the court
said that section 303 did ``not itself regulate nonpoint source
pollution'' and, therefore, ``did not sweep nonpoint sources into the
scope of [section 401].'' Id.
Following the Supreme Court's decision in S.D. Warren that the
addition of a pollutant was not needed to trigger section 401, the
Ninth Circuit reaffirmed its earlier decision that section 401 was only
triggered by a point source discharge. Or. Natural Desert Ass'n v.
USFS, 550 F.3d 778 (9th Cir. 2008). The Ninth Circuit found that
``[t]he issue in S.D. Warren was narrowly tailored to determine whether
a discharge from a point source could occur absent addition of any
pollutant to the water emitted from the dam turbines.'' Id.at 783-84;
see S.D. Warren, 547 U.S. at 376-87.\29\ The Ninth Circuit held that
``[n]either the ruling nor the reasoning in S.D. Warren is inconsistent
with this court's treatment of nonpoint sources in [section] 401 of the
Act, as explained in Dombeck. Accordingly, the principles of stare
decisis apply, and this court need not revisit the issue decided in
Dombeck.'' USFS, 550 F.3d at 785. EPA has consistently implemented the
Ninth Circuit's interpretation of section 401 as requiring the
potential for a point source discharge (with or without the addition of
pollutants) to trigger section 401. See 85 FR 42238; 2010 Handbook
(rescinded) (discussing requirement of section 401 certification when
there is a point source discharge).\30\
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\29\ The United States made a similar observation in its brief
in USFS. See Brief of the United States in ONDA v. USFS, No. 08-
35205, at 22 (9th Cir. 2008).
\30\ The United States has suggested that section 401 requires
the discharge to be from a point source in briefs filed before both
the Ninth Circuit and the Supreme Court. See, e.g., Briefs of the
United States in ONDA v. Dombeck, Nos. 97-3506, 97-35112, 97-35115
(9th Cir. 1997), ONDA v. USFS, No. 08-35205 (9th Cir. 2008), Amicus
brief of the United States in S.D. Warren Co. v. Maine Bd. of Envtl.
Prot., No. 04-1527 (January 9, 2006).
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Although the Agency is retaining the same interpretation of
``discharge'' as the 2020 Rule, to simplify the regulatory
architecture, the Agency is proposing to remove the definition of
``discharge'' currently located at Sec. 121.1(f) and instead
incorporate those definitional concepts into the regulatory text at
proposed Sec. 121.2 which discusses when certification is required.
The Agency believes this simpler approach will provide greater clarity
about the nature
[[Page 35329]]
of discharges that trigger the need for section 401 certification or
waiver.
Just as the Agency is not proposing to define the term
``discharge'' for purposes of section 401, the Agency is not proposing
a distinct definition of the term ``point source.'' Rather, the Agency
will continue to rely on the definition of point source in section
502(14) of the CWA,\31\ as interpreted by the courts.\32\ For example,
courts have concluded that bulldozers, mechanized land clearing
machinery, and similar types of equipment used for discharging dredge
or fill material are ``point sources'' for purposes of the CWA. See,
e.g., Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (5th Cir.
1983); United States v. Larkins, 657 F. Supp. 76 (W.D. Ky. 1987),
aff'd, 852 F.2d 189 (6th Cir. 1988). On the other hand, courts have
concluded that a water withdrawal is not a point source discharge and
therefore does not require a water quality certification.\33\
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\31\ The CWA defines point source as ``any discernible, confined
and discrete conveyance . . . from which pollutants are or may be
discharged.'' 33 U.S.C. 1362(14) (emphasis added).
\32\ In County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.,
the Supreme Court addressed the question whether the CWA requires a
NPDES permit under section 402 of the Act when pollutants originate
from a point source but are conveyed to navigable waters by
groundwater. 140 S. Ct. 1462 (2020). The Court held that ``the
statute requires a permit when there is a direct discharge from a
point source into navigable waters or when there is the functional
equivalent of a direct discharge.'' Id. at 1476 (emphasis in
original). The Court articulated a number of factors that may prove
relevant for purposes of section 402 permitting. Id. at 1476-77.
Consistent with the rationale of the Court's decision in County of
Maui, any point source discharge that is the functional equivalent
of a direct discharge into navigable waters would also trigger
section 401. This broad interpretation is also consistent with S.D.
Warren, 547 U.S. at 375.
\33\ See, e.g., North Carolina v. FERC, 112 F.3d 1175, 1187
(D.C. Cir. 1997) (holding that withdrawal of water from lake does
not constitute discharge for CWA section 401 purposes).
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4. ``Into the Navigable Waters''
Section 401 says that certification is required for an activity
that ``may result in any discharge into the navigable waters.'' 33
U.S.C. 1341(a)(1). The term ``navigable waters'' is defined as ``waters
of the United States, including the territorial seas.'' 33 U.S.C.
1362(7).
The proposed rule provides that section 401 certification is
required for Federal licenses or permits where there is a potential
discharge into a water of the United States. This interpretation is
consistent with the plain language and legislative history of the CWA.
See H.R. Rep. No. 91-911, at 124 (1972) (``It should be clearly noted
that the certifications required by section 401 are for activities
which may result in any discharge into navigable waters.''). This
interpretation is also consistent with the Agency's longstanding
position and practice. See, e.g., 2010 Handbook, at 3, 5 (rescinded)
(``Since [section] 401 certification only applies where there may be a
discharge into waters of the [United States], how states or tribes
designate their own waters does not determine whether [section] 401
certification is required.'').
Potential discharges into state or tribal waters that are not
``waters of the United States'' do not trigger the requirement to
obtain section 401 certification. However, as discussed in section V.E.
in this preamble, once the certification requirement is triggered by
the prerequisite of a point source discharge into a water of the United
States, the certifying authority may choose to grant, condition, or
deny water quality certifications based on the potential impact of the
``activity as a whole'' on waters of the United States and other state
or tribal waters.
B. Pre-Filing Meeting Request
EPA is proposing to retain the requirement for a project proponent
to request a pre-filing meeting with the certifying authority at least
30 days before submitting a water quality certification request.
However, recognizing the variety of project types and complexities, the
proposed rule also provides certifying authorities with the flexibility
to waive or shorten this pre-filing meeting request requirement. This
requirement to request a pre-filing meeting will ensure that certifying
authorities have an opportunity, should they desire it, to receive
early notification and to discuss the project with the project
proponent before the statutory timeframe for review begins. The intent
of this proposed provision is to support early engagement and
coordination between certifying authorities and project proponents.
The 2020 Rule introduced the pre-filing meeting request requirement
to encourage early coordination between parties to identify needs and
concerns before the start of the reasonable period of time. EPA
interpreted the term ``request for certification'' in CWA section
401(a)(1) as being broad enough to include an implied requirement that,
as part of the submission of a request for certification, a project
proponent shall also provide the certifying authority with advance
notice that a certification request is imminent. The time (no longer
than one year) that certifying authorities are provided under the CWA
to act on a certification request (or else waive the certification
requirements of section 401(a)) provided additional justification in
this context to interpret the term ``request for certification'' to
allow EPA to require a pre-filing meeting request.
The 2020 Rule proposal originally limited the pre-filing meeting
request requirement to project proponents seeking certification in
jurisdictions where EPA acts as the certifying authority. However, in
response to stakeholder feedback on the proposed 2020 Rule, the Agency
extended the pre-filing meeting request requirement to all project
proponents. As a result, the final 2020 Rule required all project
proponents to request a pre-filing meeting at least 30 days prior to
submitting a water quality certification request. 85 FR 42241 (July 13,
2020). The 2020 Rule did not provide any mechanism for certifying
authorities to waive or otherwise alter the 30-day period between a
project proponent requesting a pre-filing meeting and subsequently
submitting a certification request. Instead, there was a mandatory 30-
day period that had to pass before the project proponent could submit a
certification request.
During pre-proposal outreach on this proposed rule, some
stakeholders found the pre-filing meeting request requirement to be
essential to an efficient certification process. Some stakeholders
shared that the pre-filing meetings were helpful in allowing certifying
authorities to inform project proponents of the specific project
information needed for an effective evaluation of the certification
request. However, some stakeholders expressed concern about the
mandatory 30-day ``waiting period'' between the pre-filing meeting
request and the certification request, particularly in emergency permit
situations. Stakeholders also noted that the 30-day mandatory period
could create delays for Federal licensing or permitting agencies. Some
stakeholders noted that most certification requests involve smaller,
less complex projects and requiring the project proponent to request a
pre-filing meeting and wait 30 days before submitting a request for
certification was unnecessarily burdensome. Stakeholders suggested that
EPA should add flexibility to the process and give certifying
authorities the ability to waive the pre-filing meeting request (e.g.,
for smaller and less complex projects and emergencies).
Pre-filing meeting requests ensure that certifying authorities can
receive early notification of and discuss the project and potential
information needs with the project proponent before the statutory
``reasonable period of time'' for certification review begins (e.g.,
allow
[[Page 35330]]
the certifying authority to collect important details about a proposed
project and its potential effects on water quality). Under this
proposal, a project proponent is required to request a pre-filing
meeting from the certifying authority in accordance with the certifying
authority's applicable submission procedures at least 30 days prior to
submitting a certification request, unless the certifying authority
waives or shortens this requirement. Similar to the approach taken
under the 2020 Rule, EPA is not proposing to define by regulation the
process or manner for project proponents to submit pre-filing meeting
requests. Rather, EPA intends the term ``applicable submission
procedures'' to mean the submission procedures deemed appropriate by
the certifying authority. EPA intends for certifying authorities to
communicate to project proponents when a pre-filing meeting request is
necessary and when a pre-filing meeting request is waived. For example,
certifying authorities could either require or waive the pre-filing
meeting request requirement for all projects or specific types of
projects. EPA recommends that certifying authorities make this
information readily available to project proponents in an easily
accessible manner to allow for a transparent and efficient process
(e.g., posting a list of project types that require a pre-filing
meeting request on the certifying authority's website).
When EPA acts as the certifying authority, EPA would generally find
the following submission procedures to be appropriate. First, EPA
recommends that project proponents submit a pre-filing meeting request
to the Agency in writing. As discussed in section V.C in this preamble,
the project proponent must submit documentation that a pre-filing
meeting was requested as a component of its certification request when
EPA is acting as the certifying authority (or where a state or tribe
does not have certification request requirements), unless a pre-filing
meeting request has been waived. In light of this requirement, EPA
recommends that pre-filing meeting requests to the Agency be submitted
in writing. Second, the Agency recommends that project proponents
include the following information, as available, in any written request
for a pre-filing meeting with EPA:
1. A statement that it is ``a request for CWA section 401
certification pre-filing meeting,''
2. The name of the project proponent and appropriate point of
contact,
3. The name of the tribe or jurisdiction for which EPA is serving
as the certifying authority,
4. The planned project location (including identification of waters
of the United States into which any potential discharges would occur),
5. A list of any necessary licenses/permits (e.g., state permits,
other Federal permits, etc.),
6. The project type and a brief description of anticipated project
construction and operation activities, and
7. The anticipated start work date.
EPA is requesting comment on whether it should define ``applicable
submission procedures'' for itself in regulatory text, or only provide
recommended procedures in the final rule preamble and future guidance.
Additionally, the Agency is requesting comment on whether it should
define ``applicable submission procedures'' in regulatory text for all
certifying authorities, and if so, what those ``applicable submission
procedures'' should include (e.g., the items listed above for pre-
filing meetings with EPA, and/or other items). The Agency also requests
comment on the proposed minimum timeline between the submission of a
pre-filing meeting request and certification request. If a requirement
to submit a pre-filing meeting request remains in the final rule and
``applicable submission procedures'' remains undefined, EPA intends to
develop its own recommended procedures for pre-filing meeting requests
and will make those procedures available to the public during the
implementation of any final rule. These recommendations will reflect
some of EPA's own procedures when the Agency is the certifying
authority, which are described, in part, above.
The Agency is also proposing to provide certifying authorities with
the flexibility to waive or shorten the pre-filing meeting request
requirement. As indicated in pre-proposal input, all projects do not
necessarily require early engagement between the project proponent and
certifying authority. For example, less complex, routine projects may
not necessitate the same level of early engagement as a large, complex
project. The Agency's view is that the proposed requirement to submit a
pre-filing meeting request is responsive to stakeholder concerns and
suggestions mentioned above about the need for early engagement between
the project proponent and a certifying authority. Additionally, the
Agency recognizes that states and tribes are in the best position to
determine whether a particular project (or class of projects) would
benefit from such early coordination. Accordingly, this proposed
requirement includes a waiver provision that reflects both cooperative
federalism principles and the reality that not every project will
benefit from a pre-filing meeting. The Agency recommends that
certifying authorities clearly communicate to project proponents their
expectations for pre-filing meetings and requests for pre-filing
meeting waivers (e.g., whether they may grant waivers, either
categorically or on an individual basis, and any procedures and
deadlines for submission of requests and the grant of waivers) so that
project proponents may clearly and efficiently engage in the
certification process. EPA is requesting comment on whether the project
proponent should have the opportunity to participate in determining the
need for a pre-filing meeting request. For example, should there be a
process for the project proponent to ask the certifying authority to
waive the pre-filing meeting request requirement?
Like other certifying authorities, EPA would have the discretion to
waive the pre-filing meeting request requirement. Generally, EPA
expects that it will provide written acknowledgement that the pre-
filing meeting request has been received within 5 days of receipt. In
its written response, the Agency will also state whether it has
determined that the pre-filing meeting will be waived or when (if less
than 30 days) the project proponent may submit the certification
request. The 2020 Rule provides that the certifying authority is not
obligated to grant or respond to a pre-filing meeting request. See 40
CFR 121.4(b). The Agency is proposing to delete this provision as
unnecessary because the proposed regulatory text at Sec. 121.4 does
not compel any action by the certifying authority. Accordingly, the
Agency does not find it necessary to expressly reiterate what the
certifying authority is not obligated to do. If a certifying authority
fails to communicate whether it wants to waive or shorten the pre-
filing meeting request requirement, then the project proponent must
wait 30 days from requesting a pre-filing meeting to submit its request
for certification. The Agency is requesting comment on whether it
should exclude any particular project types from the pre-filing meeting
request requirement and process. The Agency is also requesting comment
on whether it should specify that all certifying authorities should
respond with written acknowledgement and determination of the need for
a pre-filing meeting and timeline within 5 days of receipt of the pre-
filing meeting request, whether it should define the pre-filing meeting
waiver process in
[[Page 35331]]
regulation (either for EPA or all certifying authorities), or whether
it should maintain certifying authority flexibility in setting the
process.
The Agency is not proposing to define the pre-filing meeting
process, e.g., define meeting subject matter or meeting participants.
In the 2020 Rule, the Agency ``encouraged'' but did not require the
project proponent and the certifying authority to take certain steps
with respect to the pre-filing meeting process. See 40 CFR 121.4(c)-
(d). The Agency is proposing to remove these recommendations from the
regulatory text because (1) they were not expressed as, or intended to
be, regulatory requirements and (2) the Agency believes that certifying
authorities and project proponents are best suited to determine the
optimal pre-filing meeting process on a project-by-project, project
type, or general basis. EPA encourages project proponents and
certifying authorities to use the pre-filing meeting to discuss the
proposed project, as well as determine what information or data is
needed (if any) as part of the certification request to enable the
certifying authority to take final action on the certification request
within the reasonable period of time. During the pre-filing meeting,
project proponents could share a description of the proposed project
location and timeline, as well as discuss potential impacts from the
proposed project to waters of the United States and other water
resources. Certifying authorities could use the meeting as an
opportunity to provide information on how to submit certification
requests (e.g., discuss procedural expectations for a certification
request). Certifying authorities should also consider including the
Federal agency in the pre-filing meeting process for early
coordination. Additionally, the proposed provision provides flexibility
for the certifying authority to determine if the pre-filing meeting
request is fulfilled by any pre-application meetings or application
submissions to the Federal licensing or permitting agency. Generally,
EPA recommends that certifying authorities provide clear expectations
for pre-filing meetings to ensure they are used efficiently and
effectively. As mentioned previously, EPA intends to develop
recommended procedures for pre-filing meeting requests to make
available to the public during rule implementation.
This proposed approach provides sufficient flexibility (consistent
with the Act's cooperative federalism framework) to allow states and
tribes to decide which projects (or project categories) require the
type of early coordination reflected in a pre-filing meeting. EPA is
requesting comment on the proposed approach and whether EPA should
define the pre-filing meeting request process in more detail for other
certifying authorities (e.g., defining the contents of the pre-filing
meeting request). The Agency is also soliciting comment on an alternate
approach where the Agency would not include a pre-filing meeting
request requirement at all, which some stakeholders supported during
pre-proposal outreach.
C. Request for Certification
EPA is proposing that, once a project proponent has requested a
pre-filing meeting (unless waived by the certifying authority), the
project proponent may submit a certification request in accordance with
the certifying authority's applicable submission procedures. Section
401(a)(1) provides that the certifying authority's reasonable period of
time to act starts after a certifying authority is in ``receipt'' of a
``request for certification'' from a project proponent. 33 U.S.C.
1341(a).\34\ The statute does not define either ``request for
certification'' or ``receipt.''
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\34\ ``If the State, interstate agency, or Administrator, as the
case may be, fails or refuses to act on a request for certification,
within a reasonable period of time (which shall not exceed one year)
after receipt of such request, the certification requirements of
this subsection shall be waived with respect to such Federal
application.'' (emphasis added).
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In the 2020 Rule, the Agency defined ``certification request'' for
all certifying authorities and asserted that ambiguities in the
statutory language had led to inefficiencies in the certification
process. 40 CFR 121.5; see 85 FR 42243. In particular, the 2020 Rule
preamble provided that states and authorized tribes could not rely on
state or tribally defined ``complete applications'' to start the
certification process, but rather must rely on a certification request
as defined in EPA's regulation to initiate the process. The Agency
relied on New York State Department of Environmental Conservation v.
FERC, in which the Court of Appeals for the Second Circuit rejected New
York's argument that the section 401 process ``begins only once [the
state agency] deems an application `complete' '' and, instead, agreed
with FERC that the section 401 review process begins when the state
receives a request for certification. 884 F.3d 450, 455 (2d Cir. 2018)
(``NYSDEC''). The court found that ``[t]he plain language of Section
401 outlines a bright-line rule regarding the beginning of review'' and
reasoned that ``[i]f the statute required `complete' applications,
states could blur this bright-line rule into a subjective standard,
dictating that applications are `complete' only when state agencies
decide they have all the information they need.'' Id. at 455-56.
In NYSDEC, the Second Circuit held that the plain language of
section 401(a)(1) provides that the reasonable period of time begins
after receipt of the request for certification, not when a certifying
authority deems the request ``complete.'' The Second Circuit did not,
however, decide the separate question of whether EPA or certifying
authorities have the authority to establish--in advance of receiving a
certification request--a list of required contents for such a request.
Accordingly, the court's holding that the reasonable period of time
begins after ``receipt'' does not preclude EPA from establishing such a
list of minimum ``request for certification'' requirements, or from
allowing certifying authorities to add requirements to EPA's list or
develop their own lists of request requirements. Because the statute
does not expressly define the term ``request for certification,'' EPA
and other certifying authorities are free to do so in a manner that
establishes--in advance of receiving the request--a discernable and
predictable set of requirements for a certification request that starts
the reasonable period of time. Establishing such a list of required
elements in advance is consistent with the rationale of NYSDEC that
criticized the state for relying on its ``subjective'' determination
that the request was ``complete.''
EPA is proposing minor revisions to the term ``receipt'' to clarify
for all stakeholders that the reasonable period of time begins to run
after a certifying authority receives a certification request as that
request is defined either by EPA or the certifying authority in
accordance with its applicable submission procedures. EPA is also
proposing to remove the language in the regulatory text at Sec.
121.5(a) that requires a project proponent to submit a certification
request to a Federal agency. Section 401(a)(1) requires a project
proponent to obtain certification or waiver from a certifying
authority, not a Federal agency. The proposed definition of ``receipt''
relies upon the certifying authority, and not the Federal agency, to
determine whether the certifying authority has received a request for
certification from a project proponent, and as discussed below, the
Agency is proposing that the certifying authority sends written
confirmation of receipt of the request for certification to the project
proponent and Federal agency. Therefore, it is unnecessary for a
project
[[Page 35332]]
proponent to submit a request for certification to the Federal agency
in addition to sending it to the certifying authority.
New to this proposal and as discussed in the next section, EPA is
proposing that every ``request for certification'' include a copy of
the relevant draft Federal license or permit. EPA intends for this new
requirement to ensure that states and tribes have the critical
information they need to make a timely and informed certification
decision. Accordingly, under this proposal a project proponent cannot
submit a request for certification to a certifying authority until
after a Federal agency has developed a draft license or permit. In an
effort to be further responsive to state and tribal input and the
cooperative federalism principles of the Act, unlike the 2020 Rule, EPA
is proposing additional contents of a ``request for certification'' in
only two circumstances: (1) When EPA acts as the certifying authority
and (2) when a state or authorized tribe has not established its own
definition of ``request for certification'' in regulation.
1. Minimum Contents of a Request for Certification
Although the proposed rule would require project proponents to
initiate engagement with a certifying authority through a pre-filing
meeting request, the timing for a certifying authority to review and
act on a request for certification for a federally licensed or
permitted project starts only when the certifying authority receives a
request for certification. EPA and stakeholders alike have recognized
the importance of ensuring that adequate information is available to
initiate and inform the certification review process, given the
relatively limited period of time a certifying authority has to review
a project under section 401 (i.e., a ``reasonable period of time'' not
to exceed one year). However, EPA recognizes that stakeholders' views
vary on whether it is possible to define exactly what information is
sufficient or necessary to start the review process.
In 1971, the Agency opted to not define what information, if any,
was sufficient to start the review process for all certifying
authorities and instead opted to define the information only for EPA
when it acts as the certifying authority. 40 CFR 121.22 (2019). As a
result, over the last approximately 50 years, many states and tribes
established their own requirements for what constitutes a request for
certification, also called a ``certification request,'' typically
defining it as a so-called ``complete application.'' See, e.g., Cal.
Code Regs. Tit. 23, sec. 3835; La. Admin. Code tit. 33, sec. IX-1507;
Ohio Admin. Code 3745-32-03. Prior Agency guidance acknowledged this
practice. See 1989 Guidance, at 31 (April 1989) (``Thus, after taking
the federal agencies' regulations into account, the State's 401
certification regulations should link the timing for review to what is
considered receipt of a complete application.''); see also 2010
Handbook (rescinded) (``States and tribes often establish their own
specific requirements for a complete application for water quality
certification. . . . The advantage of a clear description of components
of a complete [section] 401 certification application is that
applicants know what they must be prepared to provide, and applicant
and agencies alike understand when the review timeframe has begun.'').
As discussed above, the 2020 Rule defines the term ``certification
request'' and the contents of a certification request for all
certifying authorities and does not allow certifying authorities to
modify or add to these requirements. See 40 CFR 121.1(c), 121.5.
Generally, these requirements include basic project information such as
identifying the project proponent and a point of contact, and
identifying the location and nature of any potential discharge that may
result from the proposed project and the location of receiving waters.
See id. at Sec. 121.5.
In pre-proposal outreach for this rule, many certifying authorities
expressed concerns about the Agency's decision in the 2020 Rule to
provide a complete list of elements that define a certification
request. These certifying authorities noted that it is unreasonable to
impose a ``one size fits all'' definition on certification requests in
light of different state legal requirements (e.g., certification fee
requirements, antidegradation laws) or to expect states and tribes to
be able to act in a timely, informed manner without more specific
information about the proposed project. Although the 2020 Rule did not
prohibit certifying authorities from requesting additional information
after receiving a request for certification, several certifying
authorities argued that the rule's bifurcated approach (e.g., separate
lists of Federal and state requirements) created workload issues for
certifying authorities and caused confusion among project proponents.
At least one certifying authority noted that the 2020 Rule requirements
resulted in the state issuing more denials due to project proponents
not submitting information necessary for project evaluation.
Conversely, several project proponents have argued that a definitive
list of contents of a request for certification is essential to provide
clarity and consistency for project proponents and certifying
authorities.
In this rulemaking, EPA is proposing that a request for
certification must in all cases be in writing, signed, dated, and
include a copy of a draft license or permit (unless legally precluded
from obtaining such a copy) and any existing and readily available data
or information related to potential water quality impacts from the
proposed project (e.g., Environmental Impact Statement (EIS), water
quality data collected by the project proponent). Although this
proposed approach defines limited requirements for all certification
requests, the Agency is not providing an exclusive definition of
request for certification, as it did in the 2020 Rule. Rather, the
Agency is proposing to define requirements it views as necessary for an
efficient and consistent certification process. The Agency is also
proposing to remove the definition of ``certification request''
currently located at 40 CFR 121.1(c), which describes the components of
a request for certification, and instead incorporate those same
definitional elements directly into the proposed language at Sec.
121.5(a). The Agency believes incorporating the definitional elements
into the relevant regulatory section for request for certification will
provide greater clarity about the contents of a request for
certification.
Because the proposed interpretation of a ``request for
certification'' includes submission of the relevant draft Federal
license or permit for the proposed project, a project proponent would
not be able to submit a request for certification until a Federal
agency develops and provides it with a draft license or permit for the
proposed project. Section 401 does not specify when a request for
certification must be submitted in relation to the related Federal
licensing or permitting process, nor does the 1971 Rule or 2020 Rule
specify when a project proponent must submit a request for
certification. Because the text of section 401 does not define the
contents of a ``request for certification'' or specify at what point in
the Federal licensing or permitting process such a request must or may
be submitted to the certifying authority, the statute is ambiguous on
both points. As the agency charged with administering the CWA, EPA is
entitled to deference for its reasonable interpretation of the statute
that a draft license or permit must be included. See Ala. Rivers
Alliance v. FERC, 325 F.3d 290, 296-97 (D.C. Cir. 2003); NYSDEC, 884
F.3d at 453, n.33.
[[Page 35333]]
As discussed below, EPA's proposed interpretation of the term
``request for certification'' to include a draft license or permit and
any existing and readily available data or information related to
potential water quality impacts from the proposed project is reasonable
because it ensures that the certifying authority has arguably the most
important pieces of information--the water quality-related conditions
and limitations the Federal agency has preliminarily decided to include
in the draft license or permit and information informing that
preliminary decision--to evaluate and determine whether it can certify
(with or without additional conditions and limitations) that the
project will comply with all applicable Federal and state water quality
requirements. Without the ability to see and evaluate what conditions
and limitations the Federal agency has preliminarily decided to include
in its license or permit and the information informing that decision,
the certifying authority might be inclined to deny certification as a
protective measure against the unknown potential effects from the
project or, in the alternative, it may include in its certification
potentially unnecessary conditions as a hedge against what the Federal
agency may decide to include. Because the certifying authority would
have the benefit of seeing the Federal agency's preliminary conditions
during its review of the draft license and permit, including its water
quality-related limitations and requirements, and any existing and
readily available data or information related to potential water
quality impacts from the proposed project (such as an EIS), certifying
authorities should be able to complete their certification review in
less time and deliver certifications with fewer and more targeted and
effective conditions. EPA also anticipates that this proposed
requirement may reduce redundancies between the certification and
Federal licensing or permitting processes. Providing certifying
authorities with any existing and readily available data or information
related to potential water quality impacts from the proposed project,
such as studies or an EIS or Environmental Assessment (EA) or other
water quality monitoring data, may reduce the need for duplicative
studies and analyses. EPA intends for such ``existing and readily
available data or information related to potential water quality
impacts from the proposed project'' to include both data or information
that informed the Federal agency's development of the draft license or
permit as well as any other existing data or information the project
proponent may have readily available.
Under this proposal, if a project proponent is legally precluded
from obtaining a copy of a draft license or permit, the project
proponent would not be required to provide a copy. However, in this
instance, a project proponent would still be required to obtain and
produce any existing and readily available data or information related
to potential water quality impacts from the proposed project, such as a
copy of an EIS or EA.
The Agency is aware that some Federal agencies allow project
proponents to submit certification requests shortly after a license or
permit application is received and before there is a draft license or
permit. See, e.g., 18 CFR 5.23 (requiring a FERC hydropower license
applicant to provide a copy of a water quality certification or request
for certification ``no later than 60 days following the date of
issuance of the notice of acceptance and ready for environmental
analysis''); 33 CFR 325.2(b)(1) (requiring a Corps district engineer to
notify the applicant if they determine that a water quality
certification is necessary in processing an application); cf. 40 CFR
124.53(a)-(c) (providing for a request for certification to occur
either before or after EPA prepares a draft NPDES permit). The Agency
is not aware of any regulatory-based reason why Federal licensing or
permitting agencies could not manage their internal procedures so that
a certifying authority's ``reasonable period of time'' did not begin to
run until after it had received a copy of the draft license or permit.
Moreover, as discussed above, it is reasonable to start the
certification process only after a draft license or permit for the
proposed project is available. To be clear, EPA is not proposing to
require the project proponent to request certification immediately upon
development or receipt of the draft license or permit. For example, the
Corps is required to request certification on the nationwide permits
(NWPs) when they are renewed every five years. First, the Corps
proposes the draft NWPs and takes comment on the proposal, and later
finalizes the NWPs after considering public comment. Under this
proposed rule, the Corps may request certification on the NWPs after it
receives and considers public comment on the proposal but before
finalizing the NWPs. In that scenario, the Corps would provide the non-
finalized NWP to the certifying authority as the draft permit in its
request for certification to satisfy the proposed requirements. EPA
encourages project proponents to work with certifying authorities to
determine when it is appropriate to submit a request for certification
after development of the draft license or permit to allow for an
informed and efficient certifying authority review. Furthermore, EPA is
not proposing that the Federal agency must solicit public comment on
its draft license or permit or create a new regulatory process to
engage the public (e.g., notice and comment); rather, the Agency is
proposing that the Federal agency provide a draft version of its
license or permit for that specific proposed project prior to
initiating the certification process, for the limited purpose of
helping the certifying authority reach a proper decision on the request
for certification. EPA is requesting comment on whether the Federal
agency, as opposed to the project proponent, should provide a copy of
the draft license or permit to the certifying authority when it is not
otherwise already publicly available.
The Agency is not proposing to require that the project proponent
submit a final license or permit in its certification request because a
final Federal license or permit may not be issued until after a
certification or waiver is obtained by the project proponent. 33 U.S.C.
1341(a)(1) (``No license or permit shall be granted until certification
required by this section has been obtained or has been waived as
provided in the preceding sentence.'') Therefore, requiring a copy of
the final license or permit to initiate the certification process would
be inconsistent with the plain language of section 401.
The Agency is requesting comment on its proposed approach. The
Agency is also requesting comment on an alternative approach, under
which a project proponent may submit either a copy of its officially
submitted license or permit application or a copy of the draft license
or permit and any existing and readily available data or information
related to potential water quality impacts from the proposed project.
2. Additional Contents in a Request for Certification
As discussed above, the Agency is proposing that every request for
certification include a copy of the draft license or permit and any
existing and readily available data or information related to potential
water quality impacts from the proposed project. The Agency is also
proposing to identify a set of additional contents that a project
proponent must include in a request for certification when EPA acts as
the
[[Page 35334]]
certifying authority. The Agency is also proposing that the same set of
additional contents would be required in each request for certification
to a state or authorized tribe that has not established its own
definition of a ``request for certification'' under state or tribal
law. These additional contents would not apply where a state or
authorized tribe has established its own list of requirements for a
request for certification. As discussed above, this proposed approach
contrasts with the approach taken in the 2020 Rule, which defines the
contents of a certification request for all certifying authorities.
However, it is a reasonable--and more flexible--approach to defining
the term ``request'' and consistent with NYSDEC. That decision holds
that the reasonable period of time begins after receipt of a request
for certification and not when a state deems it ``complete;'' it does
not preclude EPA or other certifying authorities from defining--in
advance--those contents a certification request must contain. As
discussed below, this approach is consistent with stakeholder input and
the cooperative federalism principles central to section 401 and the
CWA.
The Agency agrees it is important for project proponents to have
clarity and certainty during the certification process. In order to
effectuate Congress' goals for section 401 in the limited amount of
time provided by the Act, it is reasonable that certifying authorities
should be able to define what information, in addition to a draft
license or permit and any existing and readily available data or
information related to potential water quality impacts from the
proposed project, is necessary to make an informed decision regarding
protecting their water quality from adverse effects from a federally
licensed or permitted activity. See discussion in Section IV.A in this
preamble on the legislative history of section 401. This approach will
allow certifying authorities to act on certification requests in a
timely and informed manner, while providing project proponents with
clarity regarding expectations for the certification process. Pre-
proposal input on this rulemaking revealed that defining an exclusive
list of components for certification requests for all certifying
authorities would not necessarily result in a more efficient or timely
process. As noted above, several stakeholders asserted that the 2020
Rule led to workload challenges, general confusion for project
proponents, and, in at least one state, an increase in denials. The
Agency's proposed approach here will allow for a transparent and timely
process that respects the role of state and tribal certifying
authorities under the cooperative federalism framework of section 401.
First, this proposed approach will reduce project proponent
confusion. In all instances, the proposed rule defines the term
``request for certification'' to include a copy of a draft license or
permit and any existing and readily available data or information
related to potential water quality impacts from the proposed project.
It then defines additional contents that a certification request must
include when EPA acts as a certifying authority or where a state or
authorized tribe does not define a certification request in its
regulations. Providing a defined list of additional contents for a
certification request where EPA acts as a certifying authority, or
where a state or tribe does not have a defined list in regulation, will
provide project proponents with clear expectations for starting the
process. Implicit in this requirement is an understanding that
certifying authorities that wish to define their own additional
requirements for a certification request have the authority to do so in
regulation. Additionally, this proposed approach should be familiar to
project proponents who would have followed specific requirements
established by states and tribes during the last approximately 50
years. The proposed approach also addresses project proponent concerns
about certifying authorities that, in the past, may have unexpectedly
required additional information from the project proponent to satisfy
the request for certification requirement before starting the clock on
the ``reasonable period of time.'' Under the approach EPA proposes
here, the reasonable period of time starts after receipt of a ``request
for certification,'' which is defined to mean a request that contains
the contents required by EPA's proposed regulations and any additional
state or tribal requirements.
Second, this approach will allow certifying authorities to act on
certification requests in a more efficient manner. The Agency generally
agrees with stakeholders that the Agency cannot tailor the requirements
of a certification request to fit every project or state or tribal law.
This proposed approach recognizes the importance of ensuring that
states and tribes are empowered to determine what information is
necessary to initiate the certification process. Although this proposed
rule does not preclude certifying authorities from asking for more
information once they receive a certification request and the
reasonable period of time begins, allowing states and authorized tribes
to define additional contents of a certification request may reduce the
need for such additional requests.
Although the Agency is proposing to allow states and authorized
tribes to define their own additional requirements for a certification
request, the proposed approach provides a clear backstop for those
states or authorized tribes who do not choose to define any additional
requirements in regulation. The Agency expects that those states and
authorized tribes who choose to define additional contents for a
certification request would do so clearly enough to provide project
proponents with full transparency as to what is required. As discussed
above, some certifying authorities rely on a ``complete application''
to start the certification review process. In the Agency's view, a
state requirement for submittal of a complete application, when the
contents of such complete application are clearly defined in
regulation, will not necessarily lead to a ``subjective standard.''
NYSDEC, 884 F.3d at 455-56. In fact, the Agency observes that the use
of a ``completeness'' standard for applications or similar documents is
not a novel concept in CWA implementing regulations.\35\ Both EPA and
the Corps have developed regulations setting out requirements for
``completeness'' or ``complete applications'' to initiate the
permitting process. See 40 CFR 122.21(e) (describing ``completeness''
for NPDES applications); 33 CFR 325.1(d)(10) (describing when an
application is deemed ``complete'' for section 404 permits). Neither
CWA section 402 or section 404 uses the word ``complete'' to modify the
term ``application'' in the statute, yet the agencies have reasonably
interpreted the term ``application'' in those contexts to allow for a
``completeness'' concept that provides a clear and consistent framework
for stakeholders involved in the section 402 and 404 permitting
processes. The Agency is unaware of significant issues with the use of
``complete applications'' in either the section 402 or section 404
permitting processes or a concern that it has led to a ``subjective
standard.''
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\35\ The use of ``complete'' applications is also applied in
other Federal environmental realms (e.g., the Safe Drinking Water
Act, the Clean Air Act). See, e.g., 40 CFR 144.31, 40 CFR 51.103,
appendix V to part 51.
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The Agency is requesting comment on this proposed approach,
including any examples or data about state or tribal certification
request practices, including
[[Page 35335]]
a requirement for a ``complete request,'' that may have delayed the
certification process. The Agency also requests comment on examples or
circumstances where a certifying authority has applied a subjective or
open-ended definition of ``complete application'' to certification
requests, including examples of such in certifying authority
regulations. EPA is also seeking comment on whether it should take an
alternate approach whereby the Agency would define the minimum
additional components of a certification request for all certifying
authorities and if so, what those minimum additional components should
include (e.g., the minimum additional components proposed to apply to
EPA when it acts as a certifying authority, as discussed below).
The Agency is proposing to require that a certification request
made to EPA, or to states or tribes without their own definitions of
``request for certification'' as discussed above, include five
additional components. As discussed below, these five components
contain some similarities to the 1971 Rule, with revisions to provide
further clarification and efficiency for project proponents and EPA
when it acts as a certifying authority and when a state or authorized
tribe has not established its own definition of ``request for
certification.''
As stated above, the statute does not define the contents of a
``request for certification'' to EPA, nor does the legislative history
discuss these components. The 1971 Rule required project proponents to
submit a signed certification request with ``a complete description of
the discharge involved in the activity'' to EPA when it acts as the
certifying authority. 40 CFR 121.22 (2019). Specifically, the 1971
regulation required project proponents to include five mandatory
components to provide a ``complete description of the discharge.'' Id.
The 2020 Rule precludes state or tribal definitions of what must be
included in a ``certification request.'' Instead, it provides a general
definition of ``certification request'' applicable to all certifying
authorities and two different lists of documents and information that
must be included in all certification requests: one list for individual
licenses and permits and a separate list for the issuance of a general
license or permit. 40 CFR 121.5; see also 85 FR 42285. The preamble
asserted that these were objective components that would not ``require
subjective determinations about whether the request submittal
requirements have been satisfied.'' 85 FR 42246. The nine components
for a certification request on an individual license or permit are
similar to the 1971 Rule, with additional components that required
project proponents to include documentation of a pre-filing meeting
request, a list of other project authorizations, and attestations
regarding the contents of the request and that a request was being
submitted. Id. at 42285.
Prior to the 2020 Rule, some states and authorized tribes
established their own requirements for a certification request that
included more information than the 2020 Rule. In pre-proposal outreach
for this rulemaking, several certifying authorities noted that the 2020
Rule's list of components for a certification request failed to account
for information that may be required to comply with state public notice
requirements \36\ and state antidegradation policies. As a result,
these certifying authorities asserted that the list limited their
ability to engage in robust, meaningful public engagement on
certification requests or ensure that a project would comply with EPA-
approved water quality standards.
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\36\ CWA section 401(a)(1) states that a ``State or interstate
agency shall establish procedures for public notice in the case of
all applications for certification by it.''
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As noted above, although the Agency is proposing that all requests
for certification must include a copy of the draft license or permit
and any existing and readily available data or information related to
potential water quality impacts from the proposed project, the Agency
is declining to define the additional contents of a certification
request for those states or authorized tribes who have regulations that
identify the contents of a certification request because it is
difficult to tailor the contents at a national level to fit all state
and tribal laws and regulations. However, EPA is proposing to define
additional contents of a certification request for EPA when it acts as
a certifying authority and for states or authorized tribes who do not
have regulations on the components of a certification request. EPA is
proposing that a certification request to EPA when it acts as the
certifying authority, or to a state or tribe who does not have
regulations on the components of a certification request, must also
contain the following five components, if not already included in the
draft license or permit:
1. The name and address of the project proponent;
2. The project proponent's contact information;
3. Identification of the applicable Federal license or permit,
including Federal license or permit type, project name, project
identification number, and a point of contact for the Federal agency;
4. Where available, a list of all other Federal, interstate,
tribal, state, territorial, or local agency authorizations required for
the proposed activity and current status of each authorization; and
5. Documentation that a pre-filing meeting request was submitted to
the certifying authority in accordance with applicable submission
requirements, unless a pre-filing meeting request has been waived.
Like the 1971 Rule and 2020 Rule, the Agency proposes to require
basic background information about the project proponent, including
name, address, and contact information. Consistent with the definition
for ``project proponent'' proposed at Sec. 121.1(j), this information
may include the name, address, and contact information for a project
proponent's agent or contractor, where relevant, in addition to the
primary project proponent. This additional contact information is
important for the Agency to ensure that the appropriate representatives
are aware of the certification requirements and can be contacted
throughout the certification process. The proposed rule also requires
project proponents to identify the Federal license or permit for which
they are seeking certification, including information that identifies
the license or permit type, name, and number, as well as a point of
contact at the respective Federal licensing or permitting agency.
Similar to the 2020 Rule, the Agency also proposes to require that the
project proponent provide a list of other authorizations that are
required for the proposed activity and the current status of such
authorizations, where applicable. This requirement will allow the
Agency to assess how water quality impacts may be addressed through
other Federal, state, or local authorizations and potentially reduce
redundancies or inconsistencies between the certified license or permit
and other authorizations. When the project proponent is a Federal
agency seeking certification, the Agency does not expect the Federal
agency to be able to produce such a list. Typically, when a Federal
agency seeks certification, it is seeking certification on general
licenses or permits that would be used by future project applicants.
Therefore, at the time of the request for certification, the Federal
agency is likely unable to provide any information on which
authorizations, if any, are required for such a future project. Similar
to the 2020 Rule, the Agency also proposes to
[[Page 35336]]
require a project proponent to submit documentation that the proponent
requested a pre-filing meeting, unless a pre-filing meeting request has
been waived. The documentation should be in writing, such as a copy of
the email requesting the pre-filing meeting. As discussed in section
V.B in this preamble, a certifying authority may waive the requirement
for a pre-filing meeting request. In that event, the project proponent
would not need to produce documentation of a pre-filing meeting
request.
The Agency is not proposing to retain the contents of the 2020 Rule
at Sec. 121.5(b)(4) and (5) and (8) and (9); the 1971 Rule also
contained similar contents to Sec. 121.5(b)(4) and (5). See 40 CFR
121.22(b)-(c), (e) (2019). Section 121.5(b)(4) and (5) are unnecessary
since the proposed rule requires a project proponent to provide a copy
of the draft license or permit and any existing and readily available
data or information related to potential water quality impacts from the
proposed project in its request. The Agency also finds it unnecessary
to retain the requirements at Sec. 121.5(b)(8) and (9). EPA included
the component at Sec. 121.5(b)(8) ``to create additional
accountability on the part of the project proponent to ensure that
information submitted in a certification request accurately reflects
the proposed project.'' 85 FR 42245 (July 13, 2020). EPA is unaware of
any issues or concerns that project proponents will not provide
accurate information in the request for certification without such
attestation. Furthermore, the proposed contents for a request for
certification include a copy of the draft license or permit, which
presumably incorporates accurate information about the proposed
project. Additionally, it is unnecessary for a project proponent to
provide specific language explicitly requesting certification because a
project proponent is required to submit a request for certification as
defined in this proposal. Submitting a request for certification as
defined in this proposal should be a clear indication to the certifying
authority that the project proponent is seeking certification. Although
the Agency is defining the additional components of a certification
request when it acts as a certifying authority, this does not preclude
EPA from asking for additional information after a certification
request is submitted, if the Agency determines additional information
is necessary to inform its decision-making on a request for
certification.
The Agency is proposing to require a copy of the draft license or
permit and any existing and readily available data or information
related to potential water quality impacts from the proposed project in
all requests for certification of both individual and general licenses
and permits. Additionally, the Agency is proposing to require that any
additional requirements for a request for certification apply to both
requests for individual and general licenses or permits. Unlike the
2020 Rule, the Agency is not proposing to retain a separate list of
additional requirements for general licenses and permits. See 40 CFR
121.5(c). In the 2020 Rule, EPA introduced a separate list of contents
for a request for certification on the issuance of a general license or
permit ``to account for the distinctions between issuing a general
license or permit and issuing a license or permit for a specific
project, with respect to the available information at the time of
certification.'' 85 FR 42281 (July 13, 2020). However, EPA does not
think there are any information needs beyond the proposed additional
requirements unique or specific to a general license or permit. EPA is
requesting comment on whether there are such different needs and
whether it should create a separate list of additional requirements for
general licenses or permits.
EPA is requesting comments on its proposed list of additional
components for a certification request when EPA acts as the certifying
authority, or where a state or tribe does not define such additional
requirements in regulation. Additionally, the Agency is requesting
comment on the components as they would apply to state and authorized
tribal certification requests, including where available, citations to
existing regulations or any data on the time it takes project
proponents to comply with these requirements.
The Agency also requests comment on an alternative approach where
the project proponent would be required to submit (1) a Federal license
or permit application instead of a copy of the draft license or permit,
(2) any existing and readily available data or information related to
potential water quality impacts from the proposed project, and (3) an
additional set of components. Under this alternative approach, the
project proponent would be required to submit ``proposed activity
information'' with six components, including the following:
1. A description of the proposed activity, including the purpose of
the proposed activity and the type(s) of discharge(s) that may result
from the proposed activity;
2. The specific location of any discharge(s) that may result from
the proposed activity;
3. A map and/or diagram of the proposed activity site, including
the proposed activity boundaries in relation to local streets, roads,
highways;
4. A description of current activity site conditions, including but
not limited to relevant site data, photographs that represent current
site conditions, or other relevant documentation;
5. The date(s) on which the proposed activity is planned to begin
and end and, if known, the approximate date(s) on which any
discharge(s) will take place; and
6. Any additional information to inform whether any discharge from
the proposed activity will comply with applicable water quality
requirements.
This alternative additional information would incorporate some of
the information requirements from the 1971 Rule and 2020 Rule and add
other items to reflect the additional information that the Agency views
necessary to initiate its analysis of a certification request on a
Federal license or permit application.
EPA is also proposing to make conforming changes to the part 124
regulations governing the contents of a request for certification of
EPA-issued NPDES permits. EPA is proposing to delete 40 CFR 124.53(b),
which provides that when EPA receives a permit application without
certification, EPA shall forward the application to the certifying
authority with a request that certification be granted or denied. EPA
is proposing to delete Sec. 124.53(b) because this provision allows a
request for certification to precede development of a draft NPDES
permit, which is inconsistent with the approach proposed at Sec.
121.5(a). It is worth noting that although Sec. 124.53 currently
allows for a request for certification on a permit application, EPA
typically requests certification on draft NPDES permits.
EPA is also proposing to delete 40 CFR 124.53(c), which identifies
the required contents of a request for certification of an EPA-issued
NPDES permit (if certification has not been received by the time the
draft permit is prepared). EPA is proposing to delete Sec. 124.53(c)
because EPA intends that all requests for certification--including all
requests for certification on EPA-issued NPDES permits--follow the
regulations proposed at Sec. 121.5. The list of contents at Sec.
124.53(c) differs significantly from the list of contents proposed at
Sec. 121.5(c). Further, unlike proposed Sec. 121.5(b), Sec.
124.53(c) is unclear regarding whether requests for
[[Page 35337]]
certification on EPA-issued NPDES permits must follow state regulations
regarding the contents of a request for certification. Also, as
explained at the end of Section V.D.2 of this preamble, the statement
required at Sec. 124.53(c)(3) regarding the reasonable period of time
is not consistent with the approach to the reasonable period of time
proposed at Sec. 121.6.
3. Defining ``Receipt'' of a Request for Certification
EPA is also proposing to define the term ``receipt'' to clarify
that the reasonable period of time begins on the date that a certifying
authority receives a certification request as defined by this proposal,
with any additional components identified by the certifying authority
in its regulations, and in accordance with its applicable submission
procedures. The statute does not define the term ``receipt of such
request'' nor does it define how a certification request must be
received by a certifying authority. The 1971 Rule does not address or
define the term ``receipt'', however, the Agency opted to define the
term in the 2020 Rule. 40 CFR 121.1(m). The 2020 Rule defined the term
``receipt'' as ``the date that a certification request is documented as
received by a certifying authority in accordance with applicable
submission procedures.'' Id. In implementation of the 2020 Rule, there
was some confusion regarding whether it was the Federal agency's or
certifying authority's responsibility to determine that a certification
request, as defined by the 2020 Rule, was received. The proposed
definition in this proposal clarifies that receipt occurs when the
certifying authority receives a certification request that meets its
definition for a certification request and complies with applicable
submission procedures.
First, the proposed definition of ``receipt'' acknowledges that a
request for certification may largely be defined by the certifying
authority. As discussed above, the Agency is proposing to require a
copy of the draft license or permit and any existing and readily
available data or information related to potential water quality
impacts from the proposed project in all requests for certification,
but only require additional components in a request for certification
when EPA acts as the certifying authority, or where a state or
authorized tribe does not define a certification request in its own
regulations. Beyond these proposed Federal regulatory requirements,
states and authorized tribes remain free to identify their own
additional contents of a request for certification under state or
tribal law.
Second, the proposed definition of ``receipt'' requires a
certification request to be submitted in accordance with the certifying
authority's applicable submission procedures. Applicable submission
procedures describe the manner in which a certifying authority will
accept a certification request, e.g., through certified mail or
electronically. The Agency understands that certifying authorities may
have different procedures for receiving certification requests (e.g.,
receiving certification in different formats or requiring the payment
of fees), and as such, is not defining a set of standard applicable
submission procedures. However, EPA encourages certifying authorities
to make their applicable submission procedures publicly available and,
where possible, to discuss these procedures at pre-filing meetings. EPA
is requesting comment on whether it should define applicable submission
procedures.
The statute further provides that the reasonable period of time
begins ``after receipt of such request.'' 33 U.S.C. 1341(a)(1). The
Agency interprets this to mean that the reasonable period of time
begins on the date that the certifying authority receives a
certification request that meets the proposed rule's requirements for a
certification request, includes any additional certification request
components identified in the certifying authority's regulation, and is
delivered in accordance with the certifying authority's applicable
submission procedures. See proposed Sec. 121.6(a). The Agency's
proposed rulemaking allows the certifying authority the opportunity to
confirm that it received a request for certification consistent with
this proposal, its additional requirements, and in accordance with its
applicable submission procedures. The Agency is proposing to require
the certifying authority to confirm in writing for the project
proponent and Federal agency the date it received a certification
request that meets its definition and is submitted in accordance with
its applicable submission procedures. Because the certifying authority
must confirm receipt of the request for certification after it receives
a request from a project proponent, EPA is proposing to remove the
regulatory text at Sec. 121.5(a), which requires a project proponent
to submit a certification request to a certifying authority and Federal
agency. Similarly, the Agency is also proposing to remove the
regulatory text located at Sec. 121.6(b), which requires the Federal
agency to communicate the date of receipt of the request for
certification, the reasonable period of time, and the date waiver will
occur. The certifying authority is responsible for confirming the date
of receipt of a request for certification with the project proponent
and Federal agency. As discussed in the next section of this preamble,
the Federal agency and the certifying authority may collaboratively set
the reasonable period of time. As such, it is unnecessary for the
Federal agency to communicate the length of the reasonable period of
time and date of waiver to the certifying authority. The Agency is
requesting comment on whether there should be a specified timeframe for
when the certifying authority should send written confirmation to the
project proponent and Federal agency of the date of receipt of the
request for certification. The Agency is requesting comment on its
proposed definition for receipt and the start of the reasonable period
of time.
C. Reasonable Period of Time
1. Reasonable Period of Time Determination
Under section 401, when a certifying authority receives a request
for certification, the certifying authority must act on that request
within a ``reasonable period of time (which shall not exceed one
year).'' 33 U.S.C. 1341(a)(1). The proposed rule provides Federal
agencies and certifying authorities with the ability to jointly set the
reasonable period of time, provided the reasonable period of time does
not exceed one year from the receipt of the request for certification.
Additionally, after the reasonable period of time is set, the Federal
agency and certifying authority may agree to extend the reasonable
period of time, provided that it does not exceed one year from receipt.
Section 401(a)(1) provides that a certifying authority waives its
ability to certify a Federal license or permit if it does not act on a
certification request within the reasonable period of time. 33 U.S.C.
1341(a)(1) (``If the State, interstate agency, or Administrator, as the
case may be, fails or refuses to act on a request for certification,
within a reasonable period of time (which shall not exceed one year)
after receipt of such request, the certification requirements of this
subsection shall be waived with respect to such Federal
application.''). Other than specifying its outer bound (one year), the
CWA does not define what length of time is ``reasonable.'' The 1971
Rule reiterated that a certifying authority would waive its opportunity
to certify if it did not act within ``a reasonable period of time''
[[Page 35338]]
and provided that: (1) the Federal licensing or permitting agency
determines the length of the reasonable period of time, and (2) the
reasonable period of time ``shall generally be considered to be six
months, but in any event shall not exceed one year.'' See 40 CFR
121.16(b) (2019).
The 2020 Rule provides that the Federal agency sets the reasonable
period of time and defined a process for how it should be determined.
See 40 CFR 121.6. This process specifies when a Federal agency must
communicate the reasonable period of time to the certifying authority
and identifies factors that the Federal agency must consider when
setting the reasonable period of time. See id.; 85 FR 42259-60 (July
13, 2020). The 2020 Rule does not maintain the 1971 Rule's six-month
default and reiterates that the reasonable period of time could not
exceed one year from receipt of the certification request. 40 CFR
121.6. The 2020 Rule also defines the term ``reasonable period of
time'' as the length of time, which is determined in accordance with
Sec. 121.6, during which the certifying authority may act on a request
for certification. 40 CFR 121.1(l).
Some Federal agencies have promulgated regulations describing a
reasonable period of time for section 401 certification in relation to
those agencies' licenses or permits. For example, FERC has explicitly
defined the ``reasonable period'' for certifying authority action under
section 401 to be one year. See 18 CFR 4.34(b)(5)(iii), 5.23(b)(2),
157.22(b). The Corps has routinely implemented a 60-day reasonable
period of time for section 401 decisions commencing when the certifying
authority receives a section 401 certification request. See 33 CFR
325.2(b)(1)(ii).\37\ EPA has established a 60-day reasonable period of
time for certifying authorities to act on requests for certifications
for draft NPDES permits. See 40 CFR 124.53(c)(3).
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\37\ But see U.S. EPA and Department of the Army, Clean Water
Act Section 401 Certification Implementation Memorandum (August 19,
2021) (interim joint guidance from EPA and Army Corps extending the
reasonable period of time to the full statutory year for certain
nationwide permits).
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While project proponents generally supported the reasonable period
of time provisions in the 2020 Rule, most states, tribes, and non-
governmental organizations expressed concern with various aspects of
its provisions. Many states and tribes expressed concern that the
Federal agency is afforded the sole authority to set the reasonable
period of time, and some recommended that the certifying authority
alone should be able to determine the reasonable period of time. Some
stakeholders suggested that a rule replacing the 2020 Rule should at
least require the Federal agency and certifying authority to
collaborate and agree on the reasonable period of time. Some certifying
authorities also pointed out that short reasonable periods of time
(e.g., 60 days) do not allow the state or tribe sufficient time to
fulfill certain state or tribal law requirements, such as public notice
requirements, or allow them to obtain all the information they need
about a project to make an informed certification decision. As a
result, these certifying authorities asserted that for complex
projects, their only realistic options are to waive or deny
certification. EPA expressed similar concerns in its notice of intent
to revise the 2020 Rule. See 86 FR 29543 (June 2, 2021) (``Among other
issues, EPA is concerned that the rule does not allow state and tribal
authorities a sufficient role in setting the timeline for reviewing
certification requests. . . .'').
This proposed rulemaking not only affirms and clarifies that--
consistent with the statutory text--the reasonable period of time may
not exceed one year from receipt of the certification request, but it
also proposes that the Federal agency and certifying authority
collaboratively set the reasonable period of time on a project-by-
project or project type basis (e.g., through development of procedures
and agreements), provided that it does not exceed one year. Under this
proposal, if the Federal agency and certifying authority do not agree
upon a reasonable period of time, the default reasonable period of time
would be 60 days from the receipt of the request for certification. The
proposed rulemaking also allows for extensions of the reasonable period
of time under certain circumstances. Additionally, the Agency is
proposing to remove as unnecessary the definition for ``reasonable
period of time,'' currently located at Sec. 121.1(l). Like that
definition, the proposed language in Sec. 121.6(b) itself provides
that the reasonable period of time is the time during which the
certifying authority must act on a request for certification. As a
result, the Agency finds it duplicative and unnecessary to include a
separate definition for the term ``reasonable period of time.''
EPA understands that, in most cases, acting within the reasonable
period of time is not a major issue for most certifying authorities.
Several stakeholders noted in pre-proposal input that the majority of
section 401 certifications are issued in well under a year. See
Economic Analysis for the Proposed Rule (based on pre-proposal input
and website information, most states issue certification decisions in
60-90 days); see also 85 FR 42215 (July 13, 2020) (``EPA acknowledges
that [] many certifications reflect an appropriately limited
interpretation of the purpose and scope of section 401 and are issued
without controversy . . . .'').
However, a too short or inflexible reasonable period of time can
present a major issue in certain circumstances, e.g., for complex,
multi-jurisdictional projects, and in jurisdictions with longer public
notice requirements. In pre-proposal input, several certifying
authorities said they needed more (rather than less) time to make
certification decisions due to a lack of necessary information from
project proponents. See also Economic Analysis for the Proposed Rule
(noting that some pre-proposal input revealed that project size,
project complexity, sufficiency of project proponent information, and
public notice processes impacted whether additional time was
necessary). Several stakeholders recommended that EPA establish a
default reasonable period of time of one full year.
The collaborative approach EPA is proposing (i.e., the Federal
agency and certifying authority jointly set the reasonable period of
time with a default of 60 days if an agreement is not reached) differs
from the approach in both the 1971 Rule and the 2020 Rule where the
reasonable period of time is determined by the Federal agency. See 40
CFR 121.16(b) (2019) and 40 CFR 121.6(a). Such an approach is not
compelled by the statutory text because CWA section 401(a)(1) is silent
regarding who, if anyone, determines the reasonable period of time. Nor
does it say that the Federal agency is the only entity that may
establish the reasonable period of time. Given that statutory
ambiguity, EPA has flexibility under Chevron to establish regulatory
provisions regarding the establishment of a reasonable period of time.
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984).
EPA is proposing to provide Federal agencies and certifying
authorities with an opportunity to collaboratively set the reasonable
period of time, in lieu of relying on a regulatory default of 60 days.
Under this approach, Federal agencies and certifying authorities can
offer each other their expertise relevant to determining what period of
time is reasonable. Federal agencies are in the best position to opine
on timing in relation to their Federal licensing or permitting process.
Likewise, because certifying authorities regularly issue their own
permits for activities that may impact water quality (e.g., NPDES
[[Page 35339]]
permits, above and below ground pipelines, etc.) they also have
expertise in the time needed to evaluate potential water quality
impacts from federally licensed or permitted activities. Certifying
authorities are also best positioned to opine on the impacts of state
or tribal law governing the timing of decisions with respect to
environmental review and public participation requirements.\38\ Given
that EPA is proposing to defer to the combined expertise of the Federal
agencies and certifying authorities for establishing the reasonable
period of time, this proposal does not retain the list of factors that
a Federal agency shall consider, under the 2020 Rule at Sec. 121.6(c),
when establishing the reasonable period of time. Above all, this
proposed approach addresses state and tribal stakeholders' concerns
that, under the 2020 Rule, certifying authorities do not have enough
influence in determining the length of the reasonable period of time
for a particular project.
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\38\ Section 401(a)(1) requires a State or interstate agency to
establish procedures for public notice in the case of all
applications for certification by it and, to the extent it deems
appropriate, procedures for public hearings in connection with
specific applications. However, section 401(a)(1) itself does not
set any requirements or time limits on those public notice
procedures or how those procedures should be considered when setting
the reasonable period of time. EPA is aware that some certifying
authorities have public notice procedures that exceed the default
reasonable period of time in place for some Federal agencies (e.g.,
longer than the Corps or EPA's default 60-day reasonable period of
time for federally issued CWA section 404 and 402 permits).
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Under the proposed approach, during the first 30 days after a
certifying authority receives a request for certification, the Federal
agency and certifying authority would attempt to agree in writing to
the length of a reasonable period of time. EPA recommends that the
Federal agency and the certifying authority discuss the length of a
reasonable period of time at the pre-filing meeting, particularly
because the project proponent participates in that meeting and will,
therefore, be informed of any reasonable period of time related
discussions and decisions. Although the Agency is not proposing to list
factors that Federal agencies and certifying authorities must consider
when establishing the reasonable period of time, EPA observes that
Federal agencies and certifying authorities might consider various
factors, such as project type, complexity, location, and scale; the
certifying authority's administrative procedures; and the potential for
the licensed or permitted activity to affect water quality. Federal
agencies and certifying authorities might also elect to establish joint
reasonable period of time procedures and agreements through a
memorandum of agreement (MOA). Such MOAs could apply to all potential
projects or only to projects of a specified type. As discussed further
below, such MOAs could also address how and when the agencies might
change or extend the reasonable period of time. Alternatively, Federal
agencies and certifying authorities might prefer to establish the
reasonable period of time on a project-by-project basis. Whichever
approach is taken to establish the reasonable period of time, the
certifying authority must inform the Federal agency of the date of
receipt of a certification request that meets the certifying
authority's applicable submission procedures to signal the start of the
reasonable period of time clock. See proposed Sec. Sec. 121.5(d),
121.6(a).
As discussed above, if the agencies do not agree on the length of a
reasonable period of time within 30 days of receipt of a request for
certification, the default reasonable period of time would apply. See
proposed Sec. 121.6(c) This default approach obviates the need for a
dispute resolution process in the event the certifying authority and
Federal agency are not able to agree on the reasonable period of time.
EPA believes that a default reasonable period of time of 60 days is
a sensible and practical interpretation of the reasonable period of
time concept. First, the approach is responsive to stakeholder concerns
regarding the 2020 Rule's approach. In pre-proposal outreach, several
stakeholders indicated that most delays in the certification process
were attributed to lack of information. As discussed in section V.C in
this preamble, EPA is proposing that all requests for certification
must include a copy of the draft license or permit and any existing and
readily available data or information related to potential water
quality impacts from the proposed project and provides certifying
authorities with the opportunity to define what additional information
is needed in a certification request. These components of the proposal
would allow certifying authorities to define what information is
necessary to initiate a successful certification review process and,
thus, address lack of information concerns before the reasonable period
of time begins.
It bears noting that the statutory language does not guarantee that
the reasonable period of time is one year in all instances. Rather,
section 401(a)(1) provides that the reasonable period of time ``shall
not exceed one year.'' 33 U.S.C. 1341(a)(1). The words ``shall not
exceed'' imply that the reasonable period of time need not be one full
year and that a certifying authority should not--in all circumstances--
expect to be able to take a full year to act on a section 401
certification request. Under the proposal, the certifying authority
could be subject to a shorter than one-year period of time to render
its decision, provided that the Federal agency and the certifying
authority have agreed to a shorter time, or as discussed above, the
agencies rely on the default reasonable period of time. See Hoopa
Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019) (``[W]hile a
full year is the absolute maximum, it does not preclude a finding of
waiver prior to the passage of a full year.''). Additionally, the
Agency's longstanding 1971 regulations acknowledged that the reasonable
period of time may be less than one year. See 40 CFR 121.16(b) (2019)
(noting that the reasonable period of time is generally six months).
Based on the Agency's nearly 40 years of experience with NPDES
permits, the Agency views a 60-day default reasonable period of time as
appropriate, provided (as the proposed rule would require) that the
reasonable period of time does not commence until after the Federal
licensing or permitting agency prepares a draft license or permit. See
40 CFR 124.53(c)(3) (providing a default 60-day reasonable period of
time for certification on draft NPDES permits). In the NPDES permitting
process, draft permits include detailed fact sheets or statements of
how permit limits and conditions were developed along with legal and/or
scientific justifications, giving certifying authorities relevant data
and information to use in their certification process and decision. A
default 60-day reasonable period of time is also used for certification
requests on section 404 general permits, which occurs after the Corps
prepares the draft permit. See 33 CFR 325.2(b)(1)(ii).
EPA requests comment on this proposed collaborative approach to
setting the reasonable period of time, the 30-day timeframe that the
Federal agency and certifying authority would have to determine the
length of the reasonable period of time, and the 60-day default. The
Agency also requests comments on alternative approaches, such as
retaining the approach where the Federal agency is solely responsible
for determining the reasonable period of time. Another alternative
approach EPA seeks comment on is whether the default reasonable period
of time should be shorter or longer depending on when certification is
requested during the
[[Page 35340]]
licensing or permitting process. For example, if EPA were to decide
that a draft license or permit is not a required component of a
certification request, should EPA's regulations specify a different and
potentially longer default reasonable period of time? Additionally, the
Agency is soliciting comment on whether and why the default reasonable
period of time should be longer than 60 days (e.g., 120 days, six
months, one year). The Agency also requests any information, data, or
experiences stakeholders can provide on the length of time it has taken
or should take a certifying authority to act on a request for
certification.
2. Extensions to the Reasonable Period of Time
The proposed rule provides that the reasonable period of time may
be extended upon written agreement by the certifying authority and
Federal agency, in consultation with the project proponent. Any
extensions shall not exceed one year from the receipt of the
certification request. Project proponents would be consulted before any
changes to the reasonable period of time, but they would not have the
ability to veto final reasonable period of time decisions jointly made
by the certifying authority and Federal agency. The statute does not
explicitly address extending the reasonable period of time once it has
started; nor does it expressly prohibit extending the reasonable period
of time as long as the certifying authority ``acts'' within one year
from receipt of the certification request. The statute also does not
specify who may extend the reasonable period of time or the terms on
which it may be extended.
The 1971 Rule was also silent on reasonable period of time
extensions. However, several Federal agencies, including EPA and the
Corps, established regulations allowing extensions to their default
reasonable periods of time. See 40 CFR 124.53(c) (allowing for a
reasonable period of time greater than 60 days for certification
requests on NPDES permits where the EPA Regional Administrator finds
``unusual circumstances''); 33 CFR 325.2(b)(1)(ii) (allowing for a
reasonable period of time greater than 60 days for certification
requests on Corps permits when the ``district engineer determines a
shorter or longer period is reasonable for the state to act.'').
The 2020 Rule explicitly allows certifying authorities to request
an extension of the reasonable period of time. 40 CFR 121.6(d).
However, only the Federal agency has the power to extend the reasonable
period of time, and such extension cannot exceed one year from the
receipt of the certification request. Id.; see also 85 FR 42260 (July
13, 2020). Under the 2020 Rule, the Federal agency is not required to
grant reasonable period of time extension requests. See 40 CFR
121.6(d)(2). As a result, Federal agencies may deny those requests even
in situations where the certifying authority said it was not able to
act within the established timeframe (e.g., where state public notice
procedures required more time than the regulatory reasonable period of
time). In pre-proposal input, at least one stakeholder observed that a
Federal agency's failure to grant an extension request could lead to
certification denials. Other stakeholders noted that certifying
authorities should have a say in any extensions of the reasonable
period of time.
The proposed requirement to include a copy of the draft license or
permit (and any existing and readily available data or information
related to potential water quality impacts from the proposed project)
in the request for certification, and the opportunity to
collaboratively set the reasonable period of time, should reduce the
need for extensions. However, the Agency recognizes there may be
circumstances where the established or default reasonable period of
time are not sufficient to allow the certifying authority to complete
its review. Accordingly, the Agency is proposing to allow certifying
authorities and Federal agencies to jointly extend the reasonable
period of time in a written agreement, as long as the project proponent
is consulted and the extension does not exceed one year from the
receipt of request for certification. See proposed Sec. 121.6(d).
Consistent with this proposed collaborative approach, the Agency is not
proposing to retain the regulatory text located at Sec. 121.6(d) that
permits Federal agencies to unilaterally determine whether to extend
the reasonable period of time. This proposal does not preclude a
Federal licensing or permitting agency from extending the reasonable
period of time after a certification has been issued, as long as the
extension will not exceed one year from receipt of the request for
certification.\39\
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\39\ For example, a certifying authority may submit a new or
revised certification decision after it acts on a certification
request if the reasonable period of time has not expired and the
Federal licensing or permitting agency agrees. See U.S. EPA and
Department of the Army, Clean Water Act Section 401 Certification
Implementation Memorandum (August 19, 2021). In contrast to the
certification modification proposed at Sec. 121.10, a new
certification decision made within the reasonable period of time
will supersede the previous certification decision.
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The Agency expects that certifying authorities and Federal agencies
will collaboratively agree to extensions to the reasonable period of
time where needed. For example, the certifying authority and Federal
agency could develop in a MOA a process to identify scenarios where
changes to the reasonable period of time would be appropriate. Such
scenarios may include situations where relevant new information becomes
available during the reasonable period of time. EPA notes that the
proposed rulemaking promotes early collaboration and pre-filing
meetings to allow the Federal agency, certifying authority, and the
project proponent to discuss project complexity, seasonal limitations,
and other factors that may influence the time needed to complete the
certification review. These opportunities may reduce the need to extend
the jointly established or default reasonable period of time.
However, the Agency also recognizes that there are circumstances
under which the Federal agency should extend the reasonable period of
time without the certifying authority needing to negotiate an
agreement. Such situations, which were not included in the 2020 Rule,
include where a certification decision cannot be rendered within the
reasonable period of time due to force majeure events (including, but
not limited to, government closure or natural disasters). Extensions
may also be necessary in jurisdictions where the state or tribal public
notice and comment process takes longer than the negotiated or default
reasonable period of time. To address pre-proposal input, in contrast
to the 2020 Rule, the Agency is proposing to identify a limited list of
scenarios that would require the extension of the reasonable period of
time. See proposed Sec. 121.6(c). If a longer period of time to review
the request for certification is necessary due to these circumstances,
upon notification by the certifying authority prior to the end of the
reasonable period of time, the reasonable period of time shall be
extended by the period of time necessitated by public notice
requirements or the force majeure event. In its notification, the
certifying authority must provide the Federal agency with a written
justification for an extension. Ultimately, such extension may not
exceed one year from receipt of the request for certification. The
justification would describe the circumstances supporting the extension
(i.e., accommodating the certifying authority's public notice
requirements, government closures, or natural
[[Page 35341]]
disasters) and does not require Federal agency approval before taking
effect. For example, if the reasonable period of time is set to the
default 60 days and the certifying authority has a 90-day public notice
requirement, then the certifying authority would provide a written
justification to the Federal agency prior to the end of the reasonable
period of time for an extension to accommodate the public notice
requirement. The extended reasonable period of time would take effect
upon notification by the certifying authority to the Federal agency.
The proposed approach balances Federal agency and certifying
authority equities better than the 1971 Rule and the 2020 Rule by
allowing the Federal agency and certifying authority to determine
collaboratively whether and how the reasonable period of time should be
extended. This approach to extensions aligns with the approach proposed
above for joint establishment of the reasonable period of time. It also
aligns with cooperative federalism principles central to the CWA.
Moreover, it encourages stakeholder cooperation and allows for input
from the project proponent. EPA is soliciting comment on this proposed
approach. The Agency is also seeking comment on the list of situations
described in the regulatory text under which extensions would be
automatic, for example, whether other circumstances should be expressly
included. Additionally, the Agency seeks comment on any alternative
approaches, such as only allowing the Federal licensing or permitting
agency to determine any extensions of the reasonable period of time,
not requiring the project proponent to be consulted before an extension
decision, or not allowing any extensions of the reasonable period of
time after the agreed to or default reasonable period of time has been
established.
Consistent with this proposal, the Agency is also proposing to
delete the part 124 provisions regarding the reasonable period of time
for certification on EPA-issued NPDES permits, currently located at 40
CFR 124.53(c)(3), in favor of the reasonable period of time provisions
in proposed Sec. 121.6. The approach to the reasonable period of time
taken in Sec. 124.53(c) is not fully consistent with the approach
proposed at Sec. 121.6. For instance, unlike proposed Sec. 121.6(b),
Sec. 124.53(c)(3) does not involve certifying authority collaboration
in setting the reasonable period of time. And unlike proposed Sec.
121.6(c), Sec. 124.53(c)(3) does not allow for automatic extensions to
accommodate a certifying authority's public notice requirements or
force majeure events (instead allowing extensions beyond the default 60
days only if EPA finds ``unusual circumstances'' require a longer
time).
3. Withdrawal and Resubmissions of Requests for Certification
EPA is aware that, historically under the 1971 Rule, certifying
authorities asked project proponents to withdraw and resubmit their
certification requests in order to restart the clock and provide more
time to complete their certification review. EPA is also aware that
this practice has been subject to Federal court litigation. In this
proposed rule, EPA is not taking a position on the legality of
withdrawing and resubmitting a certification request. While there may
be situations where withdrawing and resubmitting a certification
request is appropriate, drawing a bright regulatory line on this issue
is challenging, and the law in this area is dynamic. See Hoopa Valley
Tribe v. FERC, 913 F.3d 1099, 1105 (D.C. Cir. 2019) (holding that a
repeated, coordinated withdrawal and resubmittal of a certification
request resulted in a waiver); N.C. Dep't of Envtl. Quality (NCDEQ) v.
FERC, 3 F.4th 655, 676 (4th Cir. 2021) (finding that the record did not
support FERC's determination that the state and project proponent
withdrew and resubmitted the certification request in a coordinated
fashion). For these reasons, the proposed rulemaking does not take a
position on this issue, instead allowing the courts and the different
state and tribal certifying authorities to make case-specific decisions
or issue their own regulations addressing the practice.
Neither section 401 nor the 1971 Rule specifically address the
practice of withdrawing a certification request and submitting a new
request to restart the reasonable period of time. On the other hand,
the 2020 Rule prohibits the certifying authority from asking the
project proponent to withdraw the certification request to reset the
reasonable period of time. 40 CFR 121.6(e). In support of that
position, the 2020 Rule relies on a broad reading of the D.C. Circuit's
decision in Hoopa Valley Tribe and asserts that the regulatory text at
Sec. 121.6(e) is a ``clear statement that reflects the plain language
of section 401 and . . . is supported by the legislative history.'' 85
FR 42261. In that case, which featured highly unusual facts,\40\ the
court rejected the particular ``withdraw and resubmit'' \41\ strategy
the project proponents and states had used to avoid waiver of
certification for a FERC license. 913 F.3d at 1105. The court held that
a decade-long ``scheme'' to subvert the one-year review period
characterized by a formal agreement between the certifying authority
and the project proponent, whereby the project proponent never even
submitted a new request, was inconsistent with the statute's one-year
deadline. Id. Significantly, the court said it was not addressing the
legitimacy of a project proponent actually withdrawing its request and
then submitting a new one, or how different a new request had to be to
restart the one-year clock. Id. at 1104.
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\40\ The court held that the project proponent and the
certifying authorities (California and Oregon) had improperly
entered into an agreement whereby the ``very same'' request for
state certification of its relicensing application was automatically
withdrawn and resubmitted every year for a decade by operation of
``the same one-page letter,'' submitted to the states before the
statute's one-year waiver deadline. 913 F.3d at 1104.
\41\ Historically, certifying authorities and project proponents
have used the ``withdraw and resubmit'' approach for dealing with
the one-year deadline for complex projects. There are a multitude of
permutations, but the basic idea is that the project proponent would
withdraw the certification request and then resubmit a new
certification request either immediately or at some later date. The
Agency recognizes that there may be legitimate reasons for
withdrawing and resubmitting certification requests, including but
not limited to the following: a new project proponent, project
analyses are delayed, or the project becomes temporarily infeasible
due to financing or market conditions.
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On the other hand, at least two circuit courts have acknowledged
the possibility that withdrawal and resubmittal of a certification
request may be a viable mechanism for addressing complex certification
situations. See NCDEQ, 3 F.4th at 676 (withdrawal and resubmittal
appropriate where the certifying authority and project proponent did
not engage in a coordinated scheme to evade the reasonable period of
time); NYSDEC, 884 F. 3d at 456 (noting in dicta that the state could
``request that the applicant withdraw and resubmit the application'').
Additionally, EPA's guidance prior to the 2020 Rule acknowledged use of
the withdrawal and resubmittal approach, as well as the ``deny
certification without prejudice to refile'' approach but noted that
``[t]his handbook does not endorse either of the two approaches . . .
.'' 2010 Handbook, at 13, n.7 (rescinded).
During pre-proposal input, many state and tribal stakeholders said
they did not support the 2020 Rule's position on the withdrawal and
resubmittal process. These stakeholders called for more flexibility in
the case of unexpected and significant changes in the project. For the
reasons discussed below, EPA is not
[[Page 35342]]
proposing to retain the regulatory text at Sec. 121.6(e) and instead,
proposing not to take a position in this rulemaking on the
permissibility of withdrawing and resubmitting a certification request.
As mentioned above, neither the text of section 401 nor Hoopa
Valley Tribe categorically precludes withdrawal and resubmission of a
certification. EPA understands the concern expressed by the D.C.
Circuit in Hoopa Valley Tribe that prolonged withdrawal and
resubmission ``schemes'' might--under certain facts--unreasonably delay
and frustrate the Federal licensing and permitting process. Yet, the
potential factual situations that might give rise to, and potentially
justify, withdrawal and resubmission of a certification request are so
varied that the Agency is not confident that it can create regulatory
``bright lines'' that adequately and fairly address each situation. By
not taking a regulatory position on this issue, certifying authorities
are free to determine on a case-by-case basis whether and when
withdrawal and resubmittal of a certification request is appropriate.
Such determinations are ultimately subject to judicial review based on
their individual facts. The Agency seeks comment on this approach, as
well as any alternative approaches, such as EPA establishing
regulations specifically authorizing withdrawals and resubmissions in
certain factual situations similar (or not) to the circumstances in
Hoopa Valley Tribe.
D. Scope of Certification
The Agency is proposing to return to the scope of certification
standard affirmed by the Supreme Court in PUD No. 1 of Jefferson County
v. Washington Dep't of Ecology, 511 U.S. 700 (1994). In that case, the
Court held that section 401 ``is most reasonably read'' as authorizing
the certifying authority to evaluate and place conditions on what the
Court described as the ``project in general'' or the ``activity as a
whole'' to assure compliance with various provisions of the Clean Water
Act and ``any other appropriate requirement of State law'' once the
predicate existence of a discharge is satisfied. Id. at 711-12. The
2020 Rule substantially narrowed the scope of a certifying authority's
review of a federally licensed or permitted project. Before the 2020
Rule, a certifying authority could consider whether the federally
licensed or permitted ``activity as a whole'' might adversely affect
the quality of the state's or tribe's waters. After the 2020 Rule
became effective, the certifying authority could only consider
potential water quality impacts from the project's point source
``discharges.'' See 85 FR 42229 (July 13, 2020). This change was
heavily criticized by many states, tribes, and non-governmental
organizations as unlawfully narrowing the certifying authorities' scope
of review under section 401. In recognition of, and deference to, the
central role that states and tribes play in issuing CWA section 401
certifications, EPA is proposing to modify the regulatory text at Sec.
121.3 and reaffirm the broader and more environmentally protective
``activity as a whole'' scope of review that the Supreme Court affirmed
in PUD No. 1.
The distinction and choice between ``discharge-only'' and
``activity as a whole'' is more than semantic and has significant
environmental consequences. The ``activity as a whole'' approach allows
states and tribes to holistically consider and protect against impacts
to their water resources from the licensed or permitted ``project in
general.'' Id. at 711. For example, stakeholders have commented that a
``discharge-only'' approach would inappropriately constrain the scope
of review and conditions relating to hydroelectric dam facilities.
Specifically, stakeholders stated that addressing the water quality
impacts of a dam requires a broader review of potential effects beyond
those caused only by the discharge(s) from a dam's powerhouse or
tailrace. This is because the chemical, physical, and biological
integrity of a river is fundamentally altered by the federally licensed
``activity'' or ``project''--not just the discharges from a specific
element, e.g., the powerhouse or tailrace. They noted that a dam alters
the chemical, physical, and biological integrity of a river by placing
a barrier across it, blocking upstream and downstream passage of
nutrients and aquatic species, altering the timing and volume of flows,
transforming a free-flowing riverine reach into a reservoir, and
converting the energy that oxygenates water into electricity.
Stakeholders have asserted that a ``discharge-only'' approach to a
hydroelectric dam facility precludes several kinds of potential non-
discharge-related conditions a certifying authority might add to its
water quality certification, including fish and eel passage facilities
(upstream and downstream), fish protection measures concerning intakes,
wildlife habitat enhancements, and aquatic resource enhancements.
Stakeholders also noted that FERC-licensed hydropower projects can also
limit public access to a river, adversely affecting fishing, swimming,
boating, and other state-adopted and EPA-approved recreational
designated uses. Conditions assuring protection of those designated
uses would arguably not be allowed if the scope of review is limited
only to impacts from the dam's ``discharges.''
EPA is concerned that many (if not all) of these water quality-
related impacts and potential conditions might fall outside the scope
of certifying authority review under the 2020 Rule's ``discharge-only''
approach to scope of review. The inability of states and tribes to
protect against such impacts could seriously impair their ability to
protect valuable water resources. This would be inconsistent with
Congress's intention to provide states and tribes with this powerful
certification tool to prevent their water resources from being
adversely impacted by projects needing Federal licenses or permits.
In addition to narrowing the scope of review from ``activity as a
whole'' to ``discharge,'' the 2020 Rule also significantly narrows the
ability of certifying authorities, pursuant to section 401(d), to
include conditions in their certifications to protect the quality of
their waters. Before the 2020 Rule, consistent with EPA's proposed
interpretation of the statute, a certifying authority could add
conditions to its certification as necessary to assure compliance with
the specifically enumerated sections of the CWA and ``any other
appropriate requirement of State [or Tribal] law.'' 33 U.S.C. 1341(d).
In the 2020 Rule, however, EPA codified a narrow regulatory
interpretation of the section 401(d) term ``other appropriate
requirements of State law.'' 85 FR 42250 (July 13, 2020). With the 2020
Rule in effect, the certifying authority can only add conditions
necessary to assure compliance with those specifically enumerated
sections of the CWA ``and state or tribal regulatory requirements for
point source discharges into waters of the United States.'' 40 CFR
121.1(n), 121.3. In recognition of, and deference to, the central role
that states and tribes play in issuing CWA section 401 certifications,
EPA is proposing to return to what it now views as the more textually
accurate and environmentally protective ``any other appropriate
requirement of State [or Tribal] law'' standard for including
certification conditions.
As discussed below, the interpretations of section 401's scope of
review and conditions EPA is proposing are more closely aligned with
the statutory text and goals of section 401 than the interpretations in
the 2020 Rule. Consistent with the principles of cooperative federalism
that underlie the Clean Water Act and especially section 401, the
interpretations the Agency is
[[Page 35343]]
proposing would restore the full measure of authority that EPA believes
Congress intended to grant states and authorized tribes to protect
their critical water resources.
The following sections discuss (1) EPA's longstanding position that
CWA section 401 certifications are limited to addressing water quality
effects; (2) EPA's decision to reaffirm the Supreme Court's
interpretation of the scope of certification in PUD No. 1 as the
``activity as a whole;'' and (3) EPA's decision to return to a broader
definition of ``water quality requirements'' than that adopted in the
2020 Rule.
1. Water Quality Impacts From Federally Licensed or Permitted Projects
The Agency continues to interpret section 401 to provide that, when
issuing certifications and conditions, certifying authorities may only
consider and address potential water quality effects. The CWA's
objective is ``to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a). Among
the Act's policy declarations is ``the policy of Congress to recognize,
preserve, and protect the primary responsibilities of States to
prevent, reduce, and eliminate pollution.'' Id. at 1251(b). As
discussed in section IV.A in this preamble, Congress intended that
section 401 provide states and tribes with a powerful tool to prevent
their water resources from being adversely impacted by projects needing
Federal licenses or permits. While the text of section 401 does not
expressly state that certifications and conditions may only consider
and address water quality effects, the courts have consistently
clarified that this is so. See Am. Rivers, Inc. v. FERC, 129 F.3d 99,
107 (2d Cir. 1997) (``Section 401(d), reasonably read in light of its
purpose, restricts conditions that states can impose to those affecting
water quality in one manner or another.''); see also PUD No. 1, 511
U.S. at 711-713 (holding that a state's authority to impose conditions
under section 401(d) ``is not unbounded''). This view is also
consistent with prior Agency interpretations articulated in the 2020
Rule and prior Agency guidance. See 85 FR 42250 (``The scope of a Clean
Water Act section 401 certification is limited to assuring that a
discharge from a Federally licensed or permitted activity will comply
with water quality requirements.''); 2010 Handbook, at 16 (rescinded)
(``As incorporated into the 1972 CWA, [section] 401 water quality
certification was intended to ensure that no federal license or permits
would be issued that would prevent states or tribes from achieving
their water quality goals or that would violate CWA provisions.'').
Accordingly, EPA continues to maintain that it would be
inconsistent with the purpose of CWA section 401 to deny or condition a
section 401 certification based solely on potential air quality,
traffic, noise, or economic impacts that have no connection to water
quality. In pre-proposal outreach, it appeared that some stakeholders
were confused about whether an EPA proposal to align the scope of
review with PUD No.1 would allow certifying authorities to deny or
condition certifications based on potential environmental or societal
impacts not related to water quality. It is not the Agency's intention
to do so or to include consideration of such non-water quality-related
impacts within the proposed ``activity as a whole'' scope of review.
The preamble to the final 2020 Rule identified examples of
certification conditions possibly falling outside the water quality-
related scope of section 401 review because they did not address water
quality impacts, including one-time and recurring payments to state
agencies for improvements or enhancements that are unrelated to the
proposed federally licensed or permitted project; conditions to address
potential non-water quality-related environmental impacts from the
creation, manufacture, or subsequent use of products generated by a
proposed federally licensed or permitted activity or project; and
conditions related only to non-water quality-related impacts associated
with air emissions and transportation effects. See 85 FR 42230. Subject
to a case-by-case review of the particular facts presented by each
certification, EPA thinks it reasonable to assume that such non-water
quality-related conditions would generally be beyond the scope of
section 401.
On the other hand, some conditions that stakeholders have
identified as potentially problematic may, in fact, be appropriate as
necessary to prevent adverse impacts to a state's or tribe's water
quality. Depending on the circumstances, examples of conditions that
might be appropriate to include in a state or tribal certification to
comply with water quality requirements could be: building and
maintaining fish passages (related to protecting designated uses); the
construction of public access for fishing (related to protecting
recreational/fish consumption designated uses); maintaining minimum
flow rates for visual, auditory, and religious experiences (related to
protecting designated uses); compensatory wetland and riparian
mitigation (related to protecting designated uses and criteria);
temporal restrictions on activities to protect sensitive aquatic
species (related to protecting designated uses); pre-construction
monitoring and assessment of resources (related to protecting
designated uses and criteria); habitat restoration (related to
protecting designated uses and criteria); construction of recreation
facilities to support designated uses (e.g., whitewater release for
kayakers, canoe portages, parking spaces) (related to protecting
designated uses); tree planting along waterways (related to protecting
designated uses and criteria); and spill management and stormwater
management plans (related to protecting designated uses and criteria).
For these and other potentially qualifying conditions, EPA believes
that it is appropriate for the certifying authority to consider the
broadest possible range of water quality effects and that the
appropriateness of any given condition will depend on an analysis of
all relevant facts.
The Agency invites comment on to what extent section 401
certification review and conditions should be limited to potential
water quality-related effects or should also consider non-water
quality-related impacts.
2. ``Activity as a Whole''
EPA is proposing to return to the ``activity as a whole'' or
``project in general'' scope of certification review and conditions
that the Supreme Court affirmed in PUD No. 1. Having carefully reviewed
the 2020 Rule in light of pre-proposal stakeholder comments, EPA has
determined that the ``activity as a whole'' interpretation of scope is
more consistent with the statutory text, legislative history, and water
quality protective goals of the CWA than the 2020 Rule's ``discharge-
only'' approach. The Agency also finds that the more environmentally
protective ``activity as a whole'' interpretation of scope is better
aligned with the cooperative federalism principles animating section
401.
The first sentence of section 401(a)(1) provides that a
certification must be obtained by ``any applicant for a Federal license
or permit to conduct any activity . . . which may result in any
discharge into the navigable waters.'' 33 U.S.C. 1341(a)(1) (emphasis
added). These three italicized words--``applicant,'' ``activity,'' and
``discharge''--are the semantic building blocks used to support two
differing interpretations of scope of review. Supporters of the
[[Page 35344]]
``discharge-only'' interpretation of scope of review chiefly rely on
Congress's use of the word ``discharge'' in section 401(a)(1) in
support of the proposition that states and tribes may only consider
water quality impacts from the project's discharges when deciding
whether to certify or add conditions to federally licensed or permitted
projects. EPA disagrees with this overly narrow interpretation.
Following its reconsideration of the statutory text, the Agency
believes that Congress's use of the words ``applicant'', ``activity'',
and ``discharge'' in section 401(a)(1), ``applicant'' in section
401(d), and its failure to use the word ``discharge'' in section
401(d), create enough ambiguity to support an interpretation that
certifying authority review, and the ability to impose conditions,
extends to the project proponent's ``activity as a whole,'' or in other
words, the ``project in general.'' In the 2020 Rule, EPA acknowledged
that the statutory language addressing scope of review is ambiguous and
subject to interpretation. See 85 FR 42232. In light of that ambiguity,
EPA now agrees with the Supreme Court in PUD No. 1 that ``activity as a
whole'' is ``a reasonable interpretation of [section] 401.'' PUD No. 1,
511 U.S. at 712.\42\
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\42\ The dissent in PUD No. 1 offered a more limited
interpretation of section 401(d)'s scope, stating that ``while
[section] 401(d) permits a State to place conditions on a
certification to ensure compliance of the `applicant,' those
conditions must still be related to discharges.'' 511 U.S. at 727
(Thomas, J., dissenting with whom Scalia, J., joined).
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In PUD No. 1, the Supreme Court reviewed a water quality
certification issued by the State of Washington for a new hydroelectric
project on the Dosewallips River. The principal dispute adjudicated in
PUD No. 1 was whether a certifying authority may require a minimum
stream flow as a condition in a certification issued under section 401.
The project applicant identified two potential discharges from its
proposed hydroelectric facility: ``the release of dredged and fill
material during construction of the project, and the discharge of water
at the end of the tailrace after the water has been used to generate
electricity.'' Id. at 711. The project applicant argued that the
minimum stream flow condition was unrelated to these discharges and
therefore beyond the scope of the state's authority under section 401.
Id.
The Court examined sections 401(a)(1) and 401(d), specifically the
use of different terms in those sections of the statute to inform the
scope of a section 401 certification. Section 401(a)(1) requires the
certifying authority to certify that the discharge from a proposed
federally licensed or permitted project will comply with certain
enumerated CWA provisions, and section 401(d) authorizes the certifying
authority to include conditions to assure that the applicant will
comply with those enumerated CWA provisions and ```any other
appropriate' state law requirements.'' Id. at 700. Emphasizing that the
text of section 401(d) ``refers to the compliance of the applicant, not
the discharge,'' the Court concluded that section 401(d) ``is most
reasonably read as authorizing additional conditions and limitations on
the activity as a whole once the threshold condition, the existence of
a discharge, is satisfied.'' Id. at 712.\43\ The Court recognized that
section 401 placed some bounds on the ``activity as a whole'' scope,
noting that a certifying authority ``can only ensure that the project
complies with `any applicable effluent limitations or other limitations
under [33 U.S.C. 1311, 1312] or other provisions of the Act,['] `and
with any other appropriate requirement of State law.''' 511 U.S. at
712. The Court found that ``at a minimum, limitations imposed pursuant
to state water quality standards adopted pursuant to [section] 303,''--
the limitations at issue in PUD No. 1--``are `appropriate' requirements
of state law,'' but declined ``to speculate on what additional state
laws, if any, might be incorporated by this language.'' Id. at 713.
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\43\ Without acknowledging that the 1971 Rule was based on an
earlier version of the statute, the Court also noted that its
interpretation was consistent with EPA's 1971 Rule. Id. at 712.
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A quarter of a century after PUD No. 1, in its 2020 Rule EPA
rejected its longstanding ``activity as a whole'' interpretation,
affirmed by the PUD No. 1 majority, in favor of the dissent's
``discharge-only'' interpretation of section 401's scope. The 2020
Rule's interpretation received heavy criticism and was subject to
multiple legal challenges. Having now carefully reconsidered the
``discharge-only'' interpretation of scope of review the previous
Administration announced in the 2020 Rule, EPA has concluded that the
statutory text, legislative history, and goals of section 401 more
reasonably support the ``activity as a whole'' standard that was
accepted practice for the preceding 50 years.
Congress's 1972 textual revisions to section 21(b) support the
``activity as a whole'' interpretation of scope. At the same time it
was revising section 401(a)(1), Congress added section 401(d) that
required states to include conditions ``necessary to assure'' that
``any applicant'' will comply with sections 301, 302, 303, 306 and 307
and ``any other appropriate requirement of State law.'' \44\ Unlike
section 401(a)(1), section 401(d) does not use the term ``discharge.''
Use of the word ``applicant'' instead of ``discharge'' in section
401(d) introduced ambiguity as to whether the scope of section 401
review was limited to effects from the discharge alone. In light of
this ambiguity, EPA believes it is reasonable to interpret the combined
text of sections 401(a)(1) and 401(d) as supporting ``activity as a
whole'' as the proper scope of certification. 511 U.S. at 711-712.
(``[Section] 401(d) is most reasonably read as authorizing additional
conditions and limitations on the activity as a whole once the
existence of the threshold condition, existence of a discharge, is
satisfied.''). Because section 401(d) requires that a section 401(a)
certification include conditions ``necessary to assure'' the
applicant's compliance with the five CWA sections listed in section
401(a)(1) and ``any other appropriate requirement of State law,''
section 401(d) is most reasonably read to require the certifying
authority--when it reviews a certification request under section
401(a)(1)--to review the potential water quality impacts from the
``project in general,'' i.e, the ``activity as a whole,'' and not
merely evaluate the water quality effects of the potential discharge.
This approach is reasonable because it accounts for the fact that the
applicant for certification is responsible for a wide variety of
activities at the project site that might affect water quality in
addition to any potential ``discharge.'' To assure--as it must under
section 401(d)--that ``the applicant'' complies with all applicable
state or tribal and Federal water quality requirements, the certifying
authority must be able to evaluate potential water quality effects from
the applicant's ``activity as a whole.'' \45\
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\44\ Public Law 92-500, 401, 85 Stat. 816 (1972).
\45\ PUD No. 1 also said its ``activity as a whole''
interpretation was consistent with EPA's 1971 Rule at 40 CFR
121.2(a)(3) (2019) (requiring reasonable assurance that the
``activity'' will not violate applicable water quality standards)
and with EPA's 1989 Guidance. It is worth noting, however, that
EPA's 1971 Rule pre-dated the 1972 amendments and was based on the
language of the 1970 version of the statute which used the word
``activity'' instead of ``discharge.'' While the Court appeared to
be unaware of that fact, it is of minor significance because EPA's
conclusion that ``activity as a whole'' is the most reasonable
interpretation is based on the statutory text and legislative
history, not EPA's regulations preceding enactment of the 1972 law.
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The text of CWA sections 401(a)(3)-(5) also supports an ``activity
as a whole'' interpretation of section 401's scope. Section 401(a)(3)
provides that a
[[Page 35345]]
certification for a facility's construction fulfills the section 401
obligations with respect to its operation unless the certifying
authority determines there is no longer reasonable assurance of
compliance with sections 301, 302, 303, 306 and 307 because of changes
in ``(A) the construction and operation of the facility.'' See 33
U.S.C. 1341(a)(3). ``Construction and operation of the facility'' is
clearly a broader concept than ``discharge.'' In addition, section
401(a)(4) guarantees that the certifying authority has the opportunity
``to review the manner in which the [previously certified] facility or
activity shall be operated or conducted'' prior to its initial
operation ``for the purpose of assuring that applicable effluent
limitations or other limitations or water quality requirements will not
be violated.'' See id. at 1341(a)(4). If this review results in
suspension of the facility's permit, the permit shall remain suspended
until notification from the certifying authority that ``there is
reasonable assurance that such facility or activity will not violate
the applicable provisions of section 1311, 1312, 1313, 1316 and 1317.''
Id. Lastly, section 401(a)(5) provides that any certified Federal
license or permit may be suspended or revoked by the Federal licensing
or permitting agency ``upon the entering of a judgment under this
chapter that such facility or activity has been operated in violation
of the applicable provisions of section 1311, 1312, 1313, 1316 and
1317.'' See id. at 1341(a)(5). The scope of review employed in each of
these subsections is whether there has been compliance by the
``facility or activity'' with the five CWA sections identified in
section 401(a)(1), and not merely compliance by the ``discharge.''
Congress's application of this ``facility'' and ``activity'' scope of
review in sections 401(a)(3)-(5) is consistent with and supports an
``activity as a whole'' interpretation of sections 401(a)(1) and
401(d).
The legislative history of CWA section 401, and its predecessor
section 21(b) of the Water Quality Improvement Act of 1970, also
supports the ``activity as a whole'' interpretation of scope. EPA
believes that the mere fact that Congress changed a single word
``activity'' to ``discharge'' in section 401(a)(1) of the 1972 Act is
not dispositive, or even persuasive, that Congress intended to shrink
the scope of review under sections 401(a)(1) and (d) from consideration
of water quality effects caused by the ``project in general'' or
``activity as a whole'' to those caused only by the discharge.
It is not obvious from the legislative history that such a
significant shift was intended. It is, however, quite clear from the
legislative history that, in 1972, Congress thought it was making only
``minor,'' insubstantial changes to section 21(b). The Senate Report
stated that section 401 was ``substantially section 21(b) of the
existing law.'' S. Rep. No. 92-414, at 69 (1971). See also remarks of
Sen. Baker: ``Section 21(b), with minor changes, appears as section 401
of the pending bill S.2770.'' 117 Cong. Rec. 38857 (1971). Nowhere in
the legislative history is there a statement to the effect that
Congress understood it was dramatically shrinking section 401's scope
of review to only those water quality effects caused by a potential
discharge. To the contrary, the House Report stated that ``[i]t should
be clearly noted that the certifications required by section 401 are
for activities which may result in any discharge into navigable
waters.'' H.R. Rep. 92-911, at 124 (1972) (emphasis added). Indeed, in
summarizing section 401, Senator Muskie stated that ``[a]ll we ask is
that activities that threaten to pollute the environment be subjected
to the examination of the environmental improvement agency of the State
for an evaluation and recommendation before the federal license or
permit be granted.'' 117 Cong. Rec. 38854 (1971) (emphasis added). See
also H.R. Rep. 92-911, at 121 (1972) (stating that ``[t]he term
`applicable' as used in section 401 . . . means that the requirement
which the term `applicable' refers to must be pertinent and apply to
the activity and the requirements must be in existence by having been
promulgated or implemented.'') (emphasis added).
A comparison of section 21(b) and section 401 reveals that the two
sections are, indeed, substantially the same. In light of the
previously discussed legislative history affirming that the 1972 law
was ``substantially'' the same as the 1970 law, EPA does not think it
reasonable to assume that Congress intended to make fundamental changes
to the scope of the certifying authority's certification review merely
by changing a single word (``activity'') in section 401(a) when--at the
same time--it added a different and more expansive formulation based on
the word ``applicant'' in section 401(d). See Whitman v. Am. Trucking
Ass'ns, 531 U.S. 457, 468 (2001) (``Congress, we have held, does not
alter the fundamental details of a regulatory scheme in vague terms or
ancillary provisions--it does not, one might say, hide elephants in
mouseholes.'').
Congress's revisions to section 401(a) in the 1977 CWA amendments
also suggests it continued to support the application of the broader
``activity'' approach. Legislative history from 1977 states that
Congress intended for ``[t]he inserting of section 303 into the series
of sections listed in section 401 [ ] to mean that a federally licensed
or permitted activity, including discharge permits under section 402,
must be certified to comply with State water quality standards adopted
under section 303.'' H.R. Rep. No. 95-830, at 96 (1977) (emphasis
added).
The Agency invites comment on its proposal to readopt the
``activity as a whole'' definition of scope of review under section
401(a)(1) and scope of conditions under section 401(d). The Agency is
also seeking comment on whether it should adopt the ``discharge-only''
scope of review announced in the 2020 Rule.
Consistent with the discussion above, the Agency is proposing to
define the term ``activity as a whole'' to capture ``any aspect of the
project activity with the potential to affect water quality.'' See
proposed Sec. 121.1(a). This approach provides certifying authorities
with the ability to consider any aspect of the federally licensed or
permitted activity that may adversely impact water quality. As the
stakeholder input described above illustrates, the impacts of a
federally licensed or permitted project on a certifying authority's
water resources may be caused by aspects of the project's activity in
addition to the potential discharge that triggered the need to seek
section 401 certification. Accordingly, the Agency's proposed
definition for the term ``activity as a whole'' is meant to include all
activity at the proponent's ``project in general'' with the potential
to affect water quality (e.g., construction and operation of the
project or facility). This definition of ``activity as a whole'' is
consistent with previously issued EPA guidance, which identified the
scope of review as ``all potential water quality impacts of the
project, both direct and indirect, over the life of the project.'' See
1989 Guidance, at 22 (``[I]t is imperative for a State review to
consider all potential water quality impacts of the project, both
direct and indirect, over the life of the project.''); see also 2010
Handbook, at 17 (rescinded) (``Thus, it is important for the [section]
401 certification authority to consider all potential water quality
impacts of the project, both direct and indirect, over the life of the
project.'') (citing PUD No.1, 511 U.S. at 712 (1994)). The Agency
invites comment on its proposed interpretation of the term ``activity
as a whole.''
The Agency also understands that, while PUD No. 1 used the term
``activity as a whole,'' the Court did not offer a
[[Page 35346]]
specific definition of that term, specifically what ``activity'' should
be examined as a whole. Nevertheless, certifying authorities and
Federal agencies have gained significant experience over nearly 50
years implementing an ``activity as a whole'' approach, and EPA
believes that certifying authorities and Federal agencies are capable
of appropriately delineating the ``activity as a whole'' or the
``project in general'' based on the facts of each situation. EPA is not
aware of any cases in which delineation of ``activity as a whole'' has
been litigated, provided that the scope of review was limited to water
quality. While EPA intends the word ``activity'' in the term ``activity
as a whole'' to include all activities of the ``project in general''
that might affect water quality, EPA invites comment on whether EPA
should specifically define the term ``activity'' to mean only those
activities at the project site that are specifically authorized by the
Federal license or permit in question. EPA also invites comment on
whether and how the Federal licensing or permitting agency could
effectively implement a certification with conditions addressed to
impacts from the ``activity as a whole'' if it has authority over only
a small part of a larger project. What challenges would be presented to
the licensing or permitting authority's ability to administer and
enforce its license or permit?
To illustrate, assume there are two hydroelectric facilities on the
same river. Facility A has yet to be constructed and may require
multiple Federal licenses or permits. It may require a FERC license for
its construction and operation, a CWA section 404 permit for dredge and
fill activity related to its construction, and a CWA section 402 permit
to discharge pollutants during its operation. Facility B, on the other
hand, has already been constructed and only needs a CWA section 402
permit to discharge pollutants before it may commence operations. EPA
invites comment on whether the same ``activity'' viewed ``as a whole''
should define the scope of review applicable to certifications for both
facilities.
With respect to the broad, relatively comprehensive licenses and
permits issued by FERC and the Corps for construction and operation of
Facility A, the Agency sees little difference in the scope of review
and conditions that may be included in certifications issued under
either a broad or potentially narrower approach to defining the
relevant ``activity.'' That is because their licenses and permits are
generally comprehensive enough in what they authorize that there would
appear to be few if any significant aspects of a project's activity
that fall outside the scope of activities authorized by the Federal
license or permit. Accordingly, for these kinds of licenses and
permits, EPA believes that any significant potential water quality-
related impacts could be addressed by a certification condition on the
``activity'' whether it is construed to be the activities comprising
the ``project in general'' or ``the specific activity authorized by the
federal license or permit.''
EPA requests comment on whether a different outcome might apply to
Facility B. As discussed above, Facility B only needs an NPDES permit
to discharge pollutants to commence operations. For purposes of this
example, assume EPA will be issuing the NPDES permit because the
jurisdiction in which the facility is sited does not have NPDES permit
authority. In the case of Facility B, should the scope of the
certifying authority's section 401 review for the Federal NPDES permit
include the potential for water quality-related impacts from Facility
B's ``activity'' broadly defined to include water quality-related
impacts from Facility B's entire construction and operation, including
aspects previously authorized by a FERC license or CWA 404 permit? Or
should the scope of the certifying authority's section 401 review for
Facility B's Federal NPDES permit include only those potential impacts
caused by Facility B's activity narrowly defined as specifically
authorized by the NPDES permit, i.e., the discharge of pollutants like
heated water, oil, and grease introduced by the operation of Facility
B's turbines, and not include other aspects of Facility B's
construction and operation?
As discussed above, the choice of the narrower approach to defining
``activity'' within the context of ``activity as a whole'' may limit
the kinds of conditions that may be placed on a project proponent's
``activity'' given that the scope of authorization under a more
circumscribed permit, e.g., the NPDES permit for Facility B, would
extend to a narrower range of the project proponent's activities, e.g.,
only the discharge of pollutants and not the other aspects of the dam's
operation not regulated under section 402.
3. Water Quality Requirements
Under this proposal, when a certifying authority reviews a
federally licensed or permitted activity, it must determine whether the
``activity as a whole'' will comply with ``water quality
requirements.'' Logically, the ``activity as a whole'' standard would
apply to a certifying authority's evaluation of potential water quality
effects under both sections 401(a)(1) and 401(d). This is because the
two sections are inextricably linked. Section 401(d) requires a
certifying authority to determine whether ``the applicant'' will--
without additional conditions--comply with the specified CWA provisions
and ``any other appropriate'' requirement of state law. Only if the
certifying authority determines pursuant to section 401(d) that adding
``any effluent limitations and other limitations, and monitoring
requirements'' to the license or permit will assure that water quality
requirements will be met, may the certifying authority grant the
certification contemplated by section 401(a)(1). The certifying
authority's evaluations and determinations under sections 401(a)(1) and
401(d) do not work together in a harmonious fashion if the statute is
interpreted to apply a different scope of review standard to each
section.
Because EPA interprets the scope of certification review under
sections 401(a)(1) and (d) to be the same, the same ``activity as a
whole'' standard applies to a grant of certification, a grant of
certification with conditions, and a denial. For example, when a
certifying authority determines that it must add conditions under
section 401(d) to justify a grant of certification under section
401(a), that is equivalent to deciding that, without those conditions,
it must deny certification. The standard for each of the potential
certification decisions is therefore essentially the same.
To clarify which provisions of Federal and state law a certifying
authority may consider when evaluating and ultimately deciding which
action to take on a certification request pursuant to sections 401(a)
and (d), the Agency is proposing to define the term ``water quality
requirements.'' See proposed Sec. 121.1(m). The term ``water quality
requirements'' is used throughout section 401, and the term ``any other
appropriate requirement of State law'' is used in section 401(d), but
neither term is defined in the CWA. The Agency did not interpret the
term ``water quality requirements'' in the 1971 Rule, perhaps because
the term ``water quality requirements'' was not introduced into section
401 until the 1972 CWA amendments, where it replaced the term ``water
quality standards'' throughout the section. See Public Law 91-224,
21(b)(1), 85 Stat. 91 (1970); Public Law 92-500, 401, 85 Stat. 816
(1972). Accordingly, the 1971 Rule used the
[[Page 35347]]
term ``water quality standards'' consistent with the text of the 1970
statutory version of the certification provision. Similarly, the 1971
Rule did not account for the term ``other appropriate requirement of
State law'' since section 401(d) was not introduced until 1972.
The 2020 Rule defines the term ``water quality requirements,'' and
subsumes the phrase ``any other appropriate requirement of State law''
into the term ``water quality requirements.'' 40 CFR 121.1(n); see 85
FR 42253. Consistent with what EPA characterized as the discharge-only
scope of section 401, the preamble to the final 2020 Rule limited
``water quality requirements'' to only the enumerated provisions of the
CWA listed in section 401(a)(1) and ``state or tribal regulatory
requirements for point source discharges into waters of the United
States.'' 40 CFR 121.1(n). Citing Justice Thomas's dissent in PUD No.
1, the Agency relied on the principle ejusdem generis to argue that the
term ``appropriate requirement of State law'' was limited ``only to
provisions that, like other provisions in the statutory list, impose
discharge-related restrictions.'' 511 U.S. at 728 (Thomas, J.,
dissenting); 85 FR 42453. As a result, the 2020 Rule significantly
narrows the scope of review and ability of certifying authorities to
include conditions to protect their water quality.
In proposing the definition of the term ``water quality
requirements'' set out in this document, the Agency has reconsidered
the 2020 Rule's definition of the term and finds it appropriate to
interpret the term in a way that respects what EPA believes is the full
breadth of the Federal and state water quality-related provisions that
Congress intended a certifying authority to rely upon when developing
its certification and conditions. Accordingly, EPA is now proposing to
define ``water quality requirements'' to include any limitation,
standard, or other requirement under the provisions enumerated in
section 401(a)(1), any Federal and state laws or regulations
implementing the enumerated provisions, and any other water-quality
related requirement of state or tribal law regardless of whether they
apply to point or nonpoint source discharges.
The text, purpose, and legislative history of the statute support
the proposed interpretation of ``water quality requirements.'' In
section 401(d) Congress said that certifying authorities must include
conditions in their certifications to assure that any applicant will
comply with enumerated provisions of the CWA and ``any other
appropriate requirement of State law.'' 33 U.S.C. 1341(d) (emphasis
added). The word ``any'' is capacious in its scope, literally meaning
``all'' such state law requirements and not just a limited subset,
e.g., point source-related requirements. While the word ``appropriate''
arguably provides a limiting principle with respect to which
requirements may be considered and applied, the word ``appropriate'' is
to be interpreted broadly in light of statute's text and purpose.
Michigan v. EPA, 576 U.S. 743, 752 (2015) (stating that ``appropriate''
is a broad and all-encompassing term that naturally and traditionally
includes consideration of all the relevant factors). In this context,
the word ``appropriate'' is more reasonably understood as specifying
the ``water quality-related'' nature of such requirements and not their
``point source'' character. This interpretation is consistent with the
water quality protection goals of the CWA, as well as the Supreme
Court's affirmance of EPA's longstanding interpretation in PUD No. 1
that water quality certifications and their conditions must assure that
the ``activity as a whole''--and not just its point source discharges--
does not adversely impact the quality of a certifying authority's
waters.
Application of the maxim ejusdem generis to limit ``appropriate
requirement of State law'' only to those state law provisions that
impose discharge-related restrictions is misplaced. The list of CWA
provisions referenced in section 401(a)(1), and in section 401(d) by
incorporation, includes section 303, which addresses the requirement to
adopt water quality standards for a state's waters. This requirement
applies to such waters irrespective of the presence of point or
nonpoint sources of pollution or pollutants. Moreover, as discussed
earlier, even though Congress modified the language of section 21(b) to
conform to the revised regulatory approach of the 1972 Act, it is clear
from the legislative history that Congress intended new section 401 to
be substantially the same as section 21(b) and not at all clear that
Congress intended the restrictive reading of ``appropriate requirement
of State law'' arguably suggested by use of that maxim.
Congress provided states with the primary role in protecting the
Nation's waters from pollution, including pollution from Federal
projects, and the phrase ``water quality requirements'' should be
interpreted broadly to preserve state authority and further the
section's protective goal. See S.D. Warren, 547 U.S. at 386 (``State
certifications under [section] 401 are essential in the scheme to
preserve state authority to address the broad range of pollution . . .
.'').
The legislative history supports this interpretation. In earlier
versions of section 401(d), Congress proposed to limit section 401(d)
to the enumerated provisions from section 401(a)(1) and either ``any
more stringent water quality requirements under State law provided in
section 510 of [the Act],'' S. 2770, 92nd Cong. (1972), or ``any
regulation under section 316 of this Act.'' H.R. 11896, 92nd Cong.
(1972). Ultimately, neither of those formulations was adopted. Instead,
consistent with Congress's objective to empower states to protect their
waters from pollution, Congress ``expanded'' the scope of section
401(d) ``to also require compliance with any other appropriate
requirement of State law which is set forth in the certification.'' S.
Rep. No. 92-1236, at 138 (1972) (Conf. Rep.).
EPA recognizes that, as noted by the Court in PUD No. 1, the
authority granted to certifying authorities in section 401(d) ``is not
unbounded.'' 511 U.S. at 712. Rather, the scope is limited to
``ensur[ing] that the project complies with `any applicable effluent
limitations or other limitations under [33 U.S.C. 1311, 1312] or other
provisions of the Act,['] `and with any other appropriate requirement
of State law.''' Id. Although the Court declined ``to speculate on what
additional state laws, if any, might be incorporated by this
language,'' the Court found that ``at a minimum, limitations imposed
pursuant to state water quality standards adopted pursuant to [section]
303 are `appropriate' requirements of state law.'' Id. at 713. As
discussed earlier in this section, EPA's longstanding position is that
the scope of certification decisions and conditions are limited to
water quality-related considerations. See also American Rivers, 129
F.3d at 107 (``Section 401(d), reasonably read in light of its purpose,
restricts conditions that states can impose to those affecting water
quality in one manner or another.''). EPA's redefinition of the term
``water quality requirements'' is not intended to alter this
interpretation.
The Agency does not, however, view the Act's focus on water
quality-related considerations to mean that certifications and
conditions may only be based on point source discharge provisions in
either Federal or state law. As noted above, the legislative history on
section 401 reveals that, although Congress contemplated a narrower
interpretation of section 401(d) (e.g., limited to the enumerated
provisions and CWA section 316 in the House
[[Page 35348]]
version), Congress ultimately codified an ``expanded'' scope of section
401(d).
In addition, EPA does not believe that the scope of a state's or
tribe's certification review is limited only to water quality effects
in bodies of water meeting the definition of ``navigable waters'' or
``waters of the United States,'' or to water quality effects caused by
point sources. There is nothing in the text of section 401 that compels
either interpretation. Nor, as we said in the preamble to the 2020
Rule, is EPA aware of any court decisions that have directly addressed
the scope of waters covered by section 401. EPA acknowledges it
articulated a different position on those issues in the 2020 Rule. 85
FR 42234-35 (July 13, 2020). However, upon reconsideration, EPA
believes there are good reasons for changing its position now.
While the text of section 401(a)(1) says that the need for a
certification is only triggered by a potential discharge into ``the
navigable waters,'' it does not state that, once the need for
certification is triggered, a certifying authority must confine its
review to potential water quality impacts to such ``navigable waters.''
Indeed, while section 401(a)(1) says that the certifying authority must
certify that ``any such discharge'' will comply with various provisions
of the CWA, it does not limit the point of compliance for purposes of
certifying authority review to the specific outfall point or to the
waterbody (``navigable'' or not) into which the triggering discharge
occurs. Unlike section 401(a)(1), which uses the term ``discharge''
four times and ``navigable waters'' twice, section 401(d) uses neither
term. Instead, the focus of section 401(d) falls on the conduct of, and
need to assure compliance by, ``the applicant'' and its licensed or
permitted activities, rather than--as with section 401(a)(1)--on the
nature and compliance of the ``discharge'' to ``navigable waters.''
Section 401(d) is thus arguably more expansive than section 401(a)(1),
providing that the certification authority must assure that ``any
applicant'' comply with the same provisions of the CWA, as well as
``any other appropriate requirement of State law,'' and states may,
under state law, protect state waters beyond those that are navigable.
Again, there is no indication in the text or legislative history that
Congress intended the scope of review under sections 401(a)(1) and (d)
to assure such compliance be limited to ``navigable waters.'' Had
Congress desired to create such a limited scope of review, it could
easily have done so. It did not.
This interpretation is reinforced by the fact that Congress
intended section 401 to afford states broad power to protect their
waters from harm caused by federally licensed or permitted projects.
That intent is best realized by interpreting the scope of section 401
review and conditions as applying to impacts to all potentially
affected state waters, not just the state's ``navigable waters.'' Such
an interpretation is also consistent with PUD No.1's affirmance of
EPA's determination that the proper scope of review is potential water
quality impacts from the ``activity as a whole.'' While the
certification triggering discharge must itself be into a ``navigable
water,'' water quality impacts from the larger ``project in general''
or the ``activity as a whole'' might well occur in state waters at some
distance from the triggering discharge. There is nothing in the phrase
``any other appropriate requirement of State law,'' or the nature of
CWA section 303(c) water quality standards, that would compel an
interpretation that these water quality requirements could only support
certification review or conditions to prevent water quality impacts to
the state's ``navigable waters'' or caused by ``point sources.''
Finally, an expansive interpretation of scope of review as applying to
all potentially affected state waters is supported by CWA section 510,
which--``[e]xcept as expressly provided''--preserves a state's
authority and jurisdiction to protect its waters from pollution.
In the preamble to the 2020 Rule, EPA acknowledged that CWA
sections 402 and 404 apply only to point source discharges to waters of
the United States. 85 FR 42234. EPA does not disagree with that
proposition here. However, the Agency no longer believes that the point
source focus of sections 402 and 404, or the fact that section 401 is
located in the first section of Title IV of the CWA, titled Permits and
Licenses, means that--once the need for a certification has been
triggered by a point source discharge into a water of the United
States--a state may not consider potential water quality effects in
non-navigable waters caused by the activity as a whole. EPA disagrees
with and finds unpersuasive the 2020 Rule preamble's attempt to
conflate section 401 with sections 402 and 404 by saying that ``similar
to the section 402 and 404 permit programs, section 401 is a core
regulatory provision of the CWA.'' Id. While section 401 is certainly a
critical element of the Act--indeed, it pre-dated the 1972 CWA
amendments and was deemed so important that Congress carried it over--
section 401 is a direct congressional grant of authority for states to
protect their water resources from impacts caused by federally licensed
or permitted projects that is significantly different in character from
the Act's other Federal ``regulatory'' provisions. As such, it is more
reasonable to interpret section 401's scope broadly to effectuate that
grant of authority, consistent with the reservation of state powers in
section 510, rather than interpret section 401's scope as limited to
consideration of point source discharges to or into waters of the
United States like sections 402 and 404.
In the preamble to the 2020 Rule, the Agency said that ``for many
of the same reasons why the Agency is not interpreting the use of the
word `applicant' in section 401(d) as broadening the scope of
certification beyond the discharge itself, the Agency is also declining
to interpret section 401(d) as broadening the scope of waters and the
types of discharges to which the CWA federal regulatory programs
apply.'' Id. at 42235. As an initial matter, the Agency is not
espousing in this document an interpretation of the scope of section
401 that in any way broadens the scope of basic Federal regulatory
provisions like sections 402 and 404. Instead, the Agency is merely
recognizing the fundamental difference between those Federal
``regulatory'' sections, whose scope is textually limited to point
source discharges to or into waters of the United States, and the grant
of state authority in section 401, which is not so limited. Indeed, to
flip the argument EPA made in 2020, the reasons we have articulated
above in support of broadening the scope of certification beyond the
discharge itself also support expanding its scope beyond a state's
navigable waters. The fact that the Agency continues to agree with the
Ninth Circuit's analysis and holding in Dombeck that section 401
certification is not required for nonpoint source discharges does not
compel a different interpretation with respect to these scope issues.
Dombeck, 172 F.3d at 1098-99. Nor does EPA's interpretation of section
401(d)'s term ``applicant'' as authorizing states to add certification
conditions that might protect ``non-federal waters'' in any way broaden
the scope of the Federal regulatory programs enacted by the 1972 CWA
amendments, e.g., sections 402 and 404, beyond the limits that Congress
intended. See 85 FR 42234-35. Section 401, although a neighbor to
sections 402 and 404 in the CWA's organizational framework, is a
fundamentally different provision and
[[Page 35349]]
need not be interpreted according to those other provisions'
strictures.
EPA is not offering an opinion in this rulemaking about what
characteristics such a ``State law'' or ``Tribal law'' must have to
qualify as an appropriately ``legal'' basis for certification review or
conditions under sections 401(a)(1) or 401(d). In the spirit of
cooperative federalism, EPA defers to the relevant state and tribe to
define which of their state or tribal provisions qualify as appropriate
``State laws'' or ``Tribal laws'' for purposes of implementing section
401.
EPA requests comment on this proposed definition of ``water quality
requirements,'' EPA's basis for proposing it, and any other potential
definitions of the term ``water quality requirements'' EPA should
consider adopting in the final rule.
F. Certification Decisions
1. Decisions on a Request for Certification
The CWA allows certifying authorities to make one of four decisions
on a request for certification pursuant to their section 401 authority.
A certifying authority may either grant certification, grant
certification with conditions, deny certification, or it may expressly
waive certification. A certifying authority may also constructively
waive certification by failing or refusing to act in the reasonable
period of time. This section briefly discusses each of the four
decisions a certifying authority may make, including what each decision
means and its impact on the Federal licensing or permitting process.
This proposed interpretation of the four decisions a certifying
authority may make is consistent with the Agency's interpretation in
the 1971 and 2020 Rules.
First, a certifying authority may grant certification. A grant of
certification means that the certifying authority has determined that
the federally licensed or permitted activity as a whole will comply
with water quality requirements. See section V.E in this preamble for
further discussion of the scope of certification and the term ``water
quality requirements.'' Granting certification means that the license
or permit may be issued. See 33 U.S.C. 1341(a)(1). Section 401(a)(1)
provides that in circumstances where there are no applicable water
quality requirements for an activity, the certifying authority ``shall
so certify.'' Id. EPA is proposing minor revisions to the regulatory
language currently located at Sec. 121.7(f) that describes this
scenario, with minor edits to reflect the proposed scope of
certification.
Second, a certifying authority may grant certification with
conditions. A grant of certification with conditions means that the
certifying authority has determined that the federally licensed or
permitted activity as a whole will comply with water quality
requirements, but only if certain conditions are met. Section 401(d)
provides that any certification condition shall become a condition on
the Federal license or permit. Id. at 1341(d) (``Any certification
provided under this section shall set forth any effluent limitations
and other limitations, and monitoring requirements necessary to assure
that any applicant for a Federal license or permit will comply with
[sections 301, 302, 306, and 307], and with any other appropriate
requirement of State law set forth in such certification, and shall
become a condition on any Federal license or permit . . . .). As
discussed later in section V.G in this preamble, circuit courts have
routinely held that Federal agencies may not question or criticize a
state's water quality conditions. See, e.g., American Rivers, 129 F.3d
at 107 (``[Section 401(d)] is unequivocal, leaving little room for FERC
to argue that it has authority to reject state conditions it finds to
be ultra vires.''). Granting certification with conditions means the
Federal license or permit may be issued, provided the conditions are
incorporated into that license or permit. The 2020 Rule includes
regulatory text on the incorporation of certification conditions into a
license or permit. See 40 CFR 121.10. The Agency is not proposing to
retain any regulatory text on the incorporation of certification
conditions. First, the 2020 Rule limits incorporation of certification
conditions to only those that satisfy the content requirements at Sec.
121.7(d). Section 401(d) clearly requires all certification conditions
to become conditions on a Federal license or permit and does not limit
incorporation to only those conditions that include certain regulatory
defined components. As discussed in section V.G in this preamble, EPA
does not interpret the statute as allowing a Federal agency to review
whether a certifying authority included certain regulatorily defined
elements in its certification decisions, nor question certifying
authority conditions. Second, while the 2020 Rule requires Federal
agencies to clearly identify certification conditions in their Federal
license or permit, section 401 does not require Federal agencies to
distinguish certification conditions from other condition in their
licenses or permits. If the Federal agency finds it useful to
distinguish certification conditions for implementation purposes, the
Federal agency may structure its license or permit in such a manner,
but EPA does not find it necessary for the Agency to require such a
distinction.
Third, a certifying authority may deny certification. A denial
means that the certifying authority is not able to certify that the
activity as a whole will comply with water quality requirements. If a
certifying authority denies certification, the license or permit cannot
be issued. 33 U.S.C. 1341(a)(1). The 2020 Rule includes regulatory text
that discusses the effects of a denial of certification. See 40 CFR
121.8. The Agency is not proposing to retain any regulatory text that
speaks to the effects of a denial of certification. First, the 2020
Rule provides that a certification denial does not preclude a project
proponent from a submitting a new certification request. Section
401(a)(1) provides that a license or permit may not be granted if
certification is denied, but it does not speak to new certification
submittals following a denial. EPA does not find it necessary to add
any additional direction or process for certification denials, beyond
defining the contents of a certification denial (as discussed below).
If a project proponent disagrees with a certifying authority's denial,
the project proponent may challenge the certifying authority's decision
in the appropriate court of jurisdiction. See S. Rep. 92-414 at 69
(1971) (``Should such an affirmative denial occur no license or permit
could be issued by such Federal agencies . . . unless the State action
was overturned in the appropriate courts of jurisdiction.''). The 2020
Rule also provides that a Federal license or permit may not be issued
if a certifying authority denies certification in the manner prescribed
by the 2020 Rule (i.e., contains the contents defined at Sec.
121.7(e)). As discussed in section V.G in this preamble, Federal agency
review does not permit a Federal agency to review whether a certifying
authority included certain regulatorily defined elements in its
certification decisions. Accordingly, it is unnecessary to provide the
Federal agency with the role of confirming that a denial is sufficient
in the regulatory text.
Fourth, a certifying authority may expressly waive certification.
The statute explicitly provides for a constructive waiver if the
certifying authority fails or refuses to act on a request for
certification within the reasonable period of time. The statute does
not expressly state that a certifying
[[Page 35350]]
authority may expressly waive certification. However, EPA has
determined that providing this opportunity in the proposed rulemaking
is consistent with a certifying authority's ability to waive through
failure or refusal to act. See EDF v. Alexander, 501 F. Supp. 742, 771
(N.D. Miss. 1980) (``We do not interpret [the Act] to mean that
affirmative waivers are not allowed. Such a construction would be
illogical and inconsistent with the purpose of this legislation.'').
This interpretation is also consistent with the Agency's longstanding
interpretation of the waiver provision. See 40 CFR 121.9(a)(1)
(allowing a certifying authority to expressly waive certification via
written notification); 40 CFR 121.16(a) (2019) (same). Additionally,
continuing to allow express waivers may create efficiencies where the
certifying authority knows early in the process that it will waive. An
express waiver does not mean that the certifying authority has
determined that the activity will comply with water quality
requirements. Instead, an express waiver indicates only that the
certifying authority has chosen not to act on a request for
certification. Consistent with the statutory text, an express waiver
enables the Federal agency to issue a license or permit.
2. Defining What It Means ``To Act on a Request for Certification''
Once a certifying authority receives a request, the certifying
authority must ``act on a request for certification, within a
reasonable period of time (which shall not exceed one year) after
receipt of such request.'' 33 U.S.C. 1341(a)(1). The phrase ``to act on
a request for certification'' is not defined in the statute; nor did
EPA define it in the 1971 or 2020 Rules. To provide greater clarity
regarding how a certifying authority ``act[s] on a request for
certification'' within the reasonable period of time, EPA is proposing
to define the phrase ``to act on a request for certification'' to mean
that a certifying authority is making one of the four certification
decisions discussed above: granting certification, granting
certification with conditions, denying certification, or expressly
waiving certification.
In pre-proposal feedback, a few stakeholders asked the Agency to
provide additional clarification regarding what it means to ``act on a
request for certification.'' For example, would decisions beyond the
four just discussed qualify as acting (e.g., would a certifying
authority ``act on a request for certification'' if it requested that
the project proponent withdraw and resubmit its certification request)?
Specifically, states and tribes expressed concern about their ability
to make one of the four above-described decisions on a request for
certification within the reasonable period of time, especially for
larger, more complex projects. Recent case law has also highlighted the
need to clarify this issue, particularly in instances where a
certifying authority does not wish to waive certification. The D.C.
Circuit has further suggested that acting on a request for
certification does not include participating in a coordinated
withdrawal and resubmission ``scheme.'' See Hoopa Valley Tribe, 913
F.3d at 1101-02.\46\ The Fourth Circuit recently held that it was
permissible for the project proponent to withdraw its application in
order to avoid a certification denial as long as the certifying
authority and project proponent were not in a ``coordinated withdrawal
and resubmission scheme.'' NCDEQ, 3 F.4th at 672, 676. However, the
court also suggested that the section 401 phrase ``to act'' could be
interpreted to mean something different than a final agency action on a
request for certification. According to the court, a certifying
authority that ``takes significant and meaningful action'' and ``in
good faith takes timely action to review and process a certification
request likely would not lose its authority to ensure that federally
licensed projects comply with the State's water-quality standards, even
if it takes the State longer than a year to make its final
certification decision'' Id. at 670.
---------------------------------------------------------------------------
\46\ The D.C. Circuit held that California and Oregon had waived
their section 401 authority by allowing the project applicant to
repeatedly withdraw and resubmit the same certification request to
avoid exceeding the reasonable period of time deadline. 913 F.3d at
1101. The D.C. Circuit also found that FERC's interpretation of
``act on a request'' as allowing the states to ``indefinitely
delay'' its review was arbitrary and capricious and not within the
bounds of its authority under section 401. Id. at 1102.
---------------------------------------------------------------------------
Some stakeholders have expressed concern with the NCDEQ approach,
noting that it may make the section 401 certification process less
predictable and transparent. EPA shares those concerns. The Agency is
concerned that interpreting ``to act on a request for certification''
as any ``significant and meaningful action'' might inject significant
uncertainty and subjectivity into the certification process (e.g., what
is a ``significant and meaningful action?'') causing significant
confusion for stakeholders.
Although the Agency has never explicitly defined ``to act on a
request for certification,'' prior Agency guidance and the 2020 Rule
preamble took the position that certifying authorities must make a
decision on a request for certification within the reasonable period of
time. For instance, in the 2010 Handbook, EPA stated that to avoid
constructively waiving certification, the certifying authority should
``verify the time available for [its] certification decision.'' \47\
One implication of this language is that the Agency thought that ``to
act on a request for certification'' means to make a final decision on
the request (i.e., grant, grant with conditions, deny, or expressly
waive certification). Courts appear to agree. See, e.g., Alcoa Power
Generating, Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011) (noting
that ``[i]n imposing a one-year time limit on States to `act,' Congress
plainly intended to limit the amount of time that a State could delay a
federal licensing proceeding without making a decision on the
certification request''); NYDEC, 884 F.3d at 455-56 (noting that a
state must act after receiving a certification request and that denial
``would constitute `acting' on the request under the language of
Section 401'').
---------------------------------------------------------------------------
\47\ See 2010 Handbook, at 11 (rescinded).
---------------------------------------------------------------------------
Based on stakeholder feedback and recent court cases suggesting
ambiguity with respect to what it means for a certifying authority to
act, EPA is proposing to clarify that the phrase ``to act on a request
for certification'' means that a certifying authority makes one of the
four above-described certification decisions: grant, grant with
conditions, deny, or expressly waive. In light of the case law and
EPA's prior statements and practice, EPA thinks this is the most
reasonable interpretation of what it means for a certifying authority
``to act on a request for certification.'' It also provides
stakeholders with a clear and predictable endpoint for knowing when the
certifying authority has failed or refused to act, resulting in a
waiver. See 33 U.S.C. 1341(a)(1) (``If the State . . . fails or refuses
to act on a request for certification, within a reasonable period of
time (which shall not exceed one year) after receipt of such request,
the certification requirements of this subsection shall be waived with
respect to such Federal application.''). The Agency is requesting
comment on the proposed interpretation of what it means to act on a
request for certification, as well as any alternative interpretations
(e.g., NCDEQ approach).
3. Failing or Refusing To Act on a Request for Certification
The Agency is also proposing to clarify what it means for a
certifying authority to fail or refuse to act on a
[[Page 35351]]
request for certification. As discussed above, the Agency is proposing
to define ``act on a request for certification'' as the certifying
authority making one of four certification decisions: grant, grant with
conditions, deny, or expressly waive. If the certifying authority fails
to take one of these actions, the certification may be treated as a
constructive waiver. Consistent with the statutory text, when a
certifying authority waives the requirement for a certification, the
Federal agency may proceed to issue the license or permit. 33 U.S.C.
1341(a)(1).
The plain language of section 401(a)(1) provides that the
certification requirement is waived if a certifying authority ``fails
or refuses to act on a request for certification, within a reasonable
period of time (which shall not exceed one year).'' Id. Section
401(a)(1) clearly indicates Congress's intent to limit constructive
waivers to situations where a certifying authority did not act. See id.
(``No license or permit shall be granted until the certification
required by this section has been obtained or has been waived as
provided in the preceding sentence.''). The legislative history of this
provision suggests that constructive waivers were intended to prevent
delays in the Federal licensing or permitting process due to the
certifying authority's inactivity. See H. Rep. No 92-911, at 122 (1972)
(``In order to insure that sheer inactivity by the State, interstate
agency or Administrator as the case may be, will not frustrate the
Federal application, a requirement, that if within a reasonable period,
which cannot exceed 1 year, after it has received a request to certify
the State, interstate agency, or Administrator, as the case may be,
fails or refuses to act on the request for certification, then the
certification requirement is waived.''). Similarly, the 1971 Rule and
subsequent Agency guidance recognized that constructive waivers could
occur due to certifying authority inaction. See 40 CFR 121.16(b) (2019)
(noting that constructive waivers occurred upon the ``failure of the
State . . . concerned to act on such a request for certification within
a reasonable period of time after receipt of such request''); 2010
Handbook, at 11 (rescinded) (``State and tribes are authorized to waive
[section] 401 certification . . . by the certification agency not
taking action.'').
The 2020 Rule's interpretation of what it means for a certifying
authority to fail or refuse to act departs from the longstanding Agency
position on constructive waivers. The 2020 Rule allows a Federal agency
to determine that a certifying authority had failed or refused to act,
and thereby waived certification, where the certifying authority's
action on a request for certification was procedurally deficient (e.g.,
did not follow the 2020 Rule's procedural requirements for a denial of
certification). 40 CFR 121.9(a)(2); 85 FR 42266. Similarly, a Federal
agency can determine that a certification condition is waived if the
condition does not comply with procedural requirements of the 2020
Rule. Id. at 42250. This aspect of the 2020 Rule drew considerable pre-
proposal input from certifying authorities who argued that this
interpretation could result in a Federal agency ``veto'' of a section
401 certification, and was contrary to the statute and the legislative
history. EPA similarly expressed concern in its Federal Register notice
announcing its intent to revise the 2020 Rule, noting that ``a federal
agency's review may result in a state or tribe's certification or
conditions being permanently waived as a result of non-substantive and
easily fixed procedural concerns identified by the federal agency.'' 86
FR 29543 (June 2, 2021).
The 2020 Rule's interpretation of waiver is not consistent with the
plain language of the statute and its legislative history. The mere
failure of a certifying authority to include certain regulatorily
defined elements in its certification decisions or comply with other
procedural requirements of section 401, such as providing public notice
on a request for certification, do not qualify as the kind of ``sheer
inactivity'' that Congress contemplated would result in a constructive
waiver. Consistent with the statutory language, legislative history,
and prior Agency interpretation, EPA is proposing to revise the
regulatory text to clarify that constructive waivers may only occur if
a certifying authority fails or refuses to take one of the four actions
described in this section within the reasonable period of time.
4. Contents of a Certification Decision
To provide further clarity on how a certifying authority may ``act
on a request for certification,'' EPA is also proposing to define the
contents of a certification decision. Accordingly, EPA is proposing to
remove the regulatory text currently located at Sec. 121.7(b), which
characterizes what actions a certifying authority may take based on its
evaluation of the request for certification. The regulatory text
proposed at Sec. 121.7(c)-(f) sufficiently defines the contents of
each certification decision and identifies the actions a certifying
authority may take based on its evaluation of the request for
certification such that EPA believes it would be redundant to retain
separate regulatory text restating the same ideas.
While the statute provides that certifying authorities may make one
of four decisions when processing a certification request, the CWA does
not explicitly describe the contents or elements of a certification
decision. EPA's 1971 Rule defined the contents of a certification and
express waiver decision for all certifying authorities. The 1971 Rule's
enumeration of the contents of a certification decision were simple but
effective and included the name and address of the applicant, a
statement that the certifying authority examined the application, a
statement that ``there is a reasonable assurance that the activity will
be conducted in a manner which will not violate applicable water
quality standards,'' and other information deemed appropriate by the
certifying authority. 40 CFR 121.2(a) (2019). In addition, the 1971
Rule provided that a certification could be waived upon either (1)
written notification from the certifying authority that it expressly
waived its authority to act on a request, or (2) written notification
from the licensing or permitting agency regarding the failure of the
certifying authority to act on a request for certification within the
reasonable period of time. 40 CFR 121.16 (2019). The 1971 Rule did not
define the contents of a certification denial or provide specific
requirements for how to articulate and incorporate a certification
condition.
In the 2020 Rule, EPA updated those requirements for each type of
certification decision and more fully addressed the effects of those
decisions. First, it provides that, when a certifying authority granted
certification under the 2020 Rule, the certification must be in writing
and include a written statement that the discharge from the proposed
federally licensed or permitted project would comply with water quality
requirements. 40 CFR 121.7(c); 85 FR 42286.
Second, when a certifying authority grants certification with
conditions, the 2020 Rule requires that the certifying authority
explain the necessity of each condition and provide a citation to an
applicable Federal, state, or tribal law. 40 CFR 121.7(d); 85 FR 42286.
This was a change from the 1971 Rule, which broadly provided for
certifying authorities to include conditions as they ``deem[ed]
necessary or desirable.'' 40 CFR 121.2(a)(4) (2019). The 2020 Rule
preamble stated that the new requirements were ``intended to increase
transparency and ensure that any limitation or requirement added to a
certification . . . is within the scope
[[Page 35352]]
of certification.'' 85 FR 42256. Additionally, EPA observes that this
provision is similar to EPA's NPDES program-specific section 401
regulations. See 40 CFR 124.53(e)(2) (requiring a citation for any
conditions more stringent than those in the draft permit).
Third, unlike the 1971 Rule, under which certification denials were
undefined, the 2020 Rule defines the contents of a denial.
Specifically, the 2020 Rule requires certification denials to be made
in writing and to identify any water quality requirements with which
the discharge will not comply, include a statement explaining why the
discharge would not comply with those requirements, and provide any
specific water quality data or information that would help explain a
denial based on insufficient information. 40 CFR 121.7(e); 85 FR 42286.
Fourth, the 2020 Rule includes similar language to the 1971 Rule
for express waivers and required written notification from the
certifying authority indicating an express waiver of its authority to
act on a request for certification. 40 CFR 121.9(a)(1); 85 FR 42286
(July 13, 2020). Lastly, under the 2020 Rule, EPA defined constructive
waiver as a certifying authority's ``failure or refusal to act on a
certification request'' which included failing or refusing to (1) act
within the reasonable period of time, (2) satisfy the requirements for
a grant or denial of certification, or (3) comply with other procedural
requirements of section 401 (e.g., provide public notice on a
certification request). 40 CFR 121.9(a)(2); 85 FR 42286. The 2020 Rule
also provided that waivers could occur if the certifying authority
failed or refused to satisfy the requirements of any certification
conditions. 40 CFR 121.9(b); 85 FR 42286. See section V.G in this
preamble for further discussion on constructive waivers and the role of
Federal agencies.
The stated purpose of the 2020 Rule requirements was to promote
transparency and consistency in certification decisions and to help
streamline the Federal licensing and permitting processes. 85 FR 42220
(July 13, 2020). However, in pre-proposal input, several certifying
authorities said that the 2020 Rule's requirements for the contents of
certification decisions delayed rather than streamlined the
certification process. Conversely, in pre-proposal outreach, project
proponents expressed interest in keeping the 2020 Rule requirements for
the added transparency and argued that it is helpful when certifying
authorities explain their final certification decisions (especially
denials). Project proponents have also argued that certifying
authorities benefit from including this additional information in their
certification decisions because it helps build complete and legally
defensible administrative records to support their certification
actions.
Under this proposed approach, similar to the approach taken in the
2020 Rule, EPA is proposing revisions to the regulatory text currently
located at Sec. 121.7(a) to clarify that all certification decisions
should: be in writing; clearly state whether the certifying authority
has chosen to grant, grant with conditions, deny, or expressly waive
certification; be within the scope of certification, as defined at
proposed Sec. 121.3; and be taken within the reasonable period of
time, as determined pursuant to proposed Sec. 121.6.
Like the approach taken in the 1971 and 2020 Rules, EPA is
proposing to include some requirements for each of the four types of
certification decisions. This approach addresses both the workload
concerns expressed by certifying authorities, and the desire of project
proponents for increased transparency and consistency in the
certification process. The list of elements required for each
certification decision will provide predictability and still allow
certifying authorities the flexibility to add additional elements of
their own under state or tribal law. EPA does not anticipate that this
proposed approach will be controversial because it is generally
consistent with the approach taken in the 1971 Rule and 2020 Rule.
Consistent with the position taken in the 2020 Rule, the Agency has
opted to retain contents of a certification decision consistent with
the 1972 statutory language. Unlike the 2020 Rule, the 1971 Rule
included language that reflected the predecessor statute. For example,
the 1971 Rule required certifications to include a ``statement that
there is a reasonable assurance that the activity will be conducted in
a manner which will not violate applicable water quality standards.''
40 CFR 121.2(3) (2019). As discussed in section IV.A in this preamble,
the 1972 CWA revised the predecessor version of section 401 to reflect
the changed emphasis from complying with ``water quality standards'' to
complying with ``the applicable provisions of sections 301, 302, 303,
306, and 307'' of the CWA. 33 U.S.C. 1341(a)(1). Additionally, Congress
added section 401(d) that requires a certifying authority to include
``any effluent limitations and other limitations, and monitoring
requirements necessary to assure that any applicant for a Federal
license or permit will comply'' with the enumerated provisions of the
CWA and any other appropriate requirement of state law. Id. at 1341(d).
Consistent with this change, the Agency is proposing to retain a
similar provision as the 2020 Rule that certification decisions to
grant, grant with conditions, or deny certification must indicate
whether the certifying authority has determined that an activity will
comply with the water quality requirements identified in the 1972 CWA,
not just water quality standards. Additionally, consistent with the
proposal's scope of certification, EPA is proposing that certification
decisions must indicate whether the activity as a whole, as opposed to
the discharge, will comply with water quality requirements. See section
E of this proposal for further discussion on the scope of
certification.
Similar to the Agency's position in the 2020 Rule, the Agency does
not think that retaining the 1972 statutory language ``will comply'' in
the proposed regulations requires certifying authorities to provide
absolute certainty that applicants for a Federal license or permit will
never violate water quality requirements. See 85 FR 42278 (July 13,
2020). This is not EPA's intention, and EPA does not think such a
stringent interpretation is required by the statutory or proposed
regulatory language. The use of language comparable to ``will comply''
is not uncommon in CWA regulatory programs. For example, CWA section
402 contemplates that NPDES permits will only be issued upon a showing
that discharge ``will meet'' various enumerated provisions of the CWA.
33 U.S.C. 1342(a). This standard has not precluded states, tribes, or
EPA from routinely issuing NPDES permits to allow pollutant discharges.
Nor does EPA expect that the use of ``will comply'' will impede or
limit a certifying authority's ability to act on a request for
certification. Additionally, the Agency does not think that this
proposed language prevents certifying authorities from relying on
modeling information, which provides an informed projection of
potential impacts, to make a certification decision. When a certifying
authority makes a certification decision, EPA believes that the
certifying authority would be certifying that the ``activity as a
whole'' will comply with water quality requirements for the life of the
license or permit and not just at the moment the license or permit is
issued. The lifespan of FERC licenses can be decades, whereas section
402 or 404
[[Page 35353]]
permits last five years. Given the possible lifespan of a license or
permit, and the possibility that water quality-related changes or
impacts may occur due to climate change or other factors during that
time, it is reasonable (and perhaps essential in some cases) for
certifying authorities to rely on modeling to inform certification
decisions. EPA does not intend or expect the use of the term ``will
comply'' to limit or impact a certifying authority's ability to rely on
such modeling to support its certification decisions.
Since EPA is defining ``to act on a request for certification'' as
making one of four certification decisions, it is reasonable for EPA to
identify a non-exhaustive list of contents for each of those
certification decisions. Under EPA's proposal, certifying authorities
would be free to add additional elements or information requirements to
any of these four certification decisions to provide stakeholders with
clarity and transparency. For example, a certifying authority may
choose to require a citation to applicable Federal or state water
quality requirements to support a certification condition. For its
part, EPA is not proposing to include this additional requirement as a
Federal regulatory element as it did in the 2020 Rule.
The following paragraphs describe the Federal requirements EPA is
proposing to adopt for each of the four kinds of certification
decisions. Under this proposal, each of the four kinds of certification
decisions must be in writing and include the name and address of the
project proponent and identification of the applicable Federal license
or permit. Additionally, each of the four kinds of certification
decisions includes other requirements.
First, any grant of certification shall include a written statement
that the federally licensed or permitted activity as a whole ``will
comply'' with water quality requirements. While the 1971 Rule required
a statement that there was ``reasonable assurance,'' 40 CFR 121.2(a)
(2019), as explained above, the 2020 Rule uses the term ``will comply''
which is more consistent with the 1972 statutory language used in
sections 401(a)(1) and 401(d).
Second, EPA is proposing that any grant of certification with
conditions shall (1) identify any conditions necessary to assure that
the activity as a whole will comply with water quality requirements and
(2) include a statement explaining why each condition is necessary to
assure that the activity as a whole will comply with water quality
requirements. This proposal reflects the language used in section
401(d) and is similar to the approach taken under the 1971 and 2020
Rules. A statement explaining why a condition is necessary will help
project proponents and Federal agencies understand the reason for the
condition and assist in its implementation. EPA anticipates that such
information is readily available to the certifying authority as part of
its decision-making process. However, unlike the 2020 Rule, the Agency
is not proposing to require certifying authorities to include a
specific statutory or regulatory citation in support of a certification
condition. Rather, the Agency will let certifying authorities decide
what relevant information to provide in support of any conditions.
Additionally, EPA is not proposing to distinguish between certification
decisions based on an individual or a general license or permit.
Although EPA made such a distinction in the 2020 Rule, EPA finds it
unnecessary here because the few relevant proposed regulatory
requirements apply to a certification with conditions regardless of the
nature of the license or permit. EPA is proposing limited regulatory
requirements in this area, anticipating that certifying authorities
will work with project proponents and Federal agencies to determine
what information would be most useful (e.g., statutory or regulatory
citations).
Consistent with this approach, EPA recognizes that certification
conditions are an important tool that enable certifying authorities to
ensure that projects needing Federal licenses or permits will be able
to move forward without adverse impacts to water quality. EPA
encourages certifying authorities to develop certification conditions
in a way that enables projects to adapt to future water quality-related
changes, i.e., so-called ``adaptive management conditions.'' For
example, if a certifying authority is concerned about future
downstream, climate change-related impacts on aquatic species due to
increased reservoir temperatures during the lifespan of a hydropower
dam license, the certifying authority might develop a condition that
would allow a project proponent to take subsequent, remedial action in
response to reservoir temperature increases (e.g., conditions that
might require, as necessary, a change in reservoir withdrawal location
in the water column, a change in the timing of releases, etc.). To
ensure project proponents and Federal agencies understand and are able
to implement any such adaptive management conditions, EPA recommends
that certifying authorities clearly define and explain the basis for
these conditions and the circumstances in which adaptive management
conditions may spring into effect (e.g., expectations for undertaking
additional planning and monitoring; thresholds triggering adaptive
responses; requirements for ongoing compliance). EPA has previously
acknowledged the use of ``adaptive management'' conditions in prior
guidance, see, e.g., 2010 Handbook, at 32, and will explore the
development of other guidance on this topic in the future. EPA requests
comment on whether it should define in more detail--as it did in the
2020 Rule--what information should be included in support of a
certification condition and examples of such information (e.g.,
statutory and regulatory citations).
Third, EPA is proposing that any denial of certification shall
include a statement explaining why the certifying authority cannot
certify that the proposed activity as a whole will comply with water
quality requirements. Although the 1971 Rule did not define the
elements of a decision to deny certification, this concept was
introduced in the 2020 Rule. The proposed requirements for a denial of
certification are similar to the requirements in the 2020 Rule.
However, the Agency is not proposing to retain the 2020 Rule
requirements to identify the specific water quality requirements with
which the project will not comply nor require the certifying authority
to describe the missing data or information that would be necessary in
instances where the denial is due to insufficient information. See 40
CFR 121.7(e). Rather, EPA's few relevant regulatory requirements
anticipate that certifying authorities will work with project
proponents and Federal agencies to determine what information would be
most useful. Additionally, EPA is not proposing to distinguish between
certification decisions based on an individual or a general license or
permit. Although EPA took this approach in the 2020 Rule, EPA finds
that the few relevant proposed regulatory requirements apply to a
denial of certification regardless of the nature of the license or
permit. EPA does not expect this to be a burdensome requirement for
certifying authorities. As a practical matter, certifying authorities
will likely already have developed and considered such information as
part of their decision-making process and included it in the record to
substantiate their decision.
[[Page 35354]]
Aside from borrowing from their decision-making record, EPA expects
that certifying authorities may be able to satisfy this requirement in
a number of ways. For example, certifying authorities could identify
specific water quality requirements with which the activity as a whole
will not comply, or identify what information about the project or
potential water quality effects is missing or incomplete that led the
certifying authority to not be able to determine whether the activity
as a whole will comply with water quality requirements. This proposal
to provide at least a succinct explanation for the certification denial
will provide necessary transparency and clarity for project proponents
and Federal agencies.
Lastly, consistent with the 1971 Rule and 2020 Rule, EPA is
proposing that any express waiver made by a certifying authority shall
include a statement from the certifying authority stating that it
expressly waives its authority to act on a request for certification.
As noted above, an express waiver indicates only that the certifying
authority has chosen not to act on a request for section 401
certification. Accordingly, the certifying authority only needs to
state that it is waiving certification and does not need to make any
statement about why it has decided to waive or its assessment of the
project's impact on its water quality.
EPA is also proposing to delete 40 CFR 124.53(e), which addresses
the contents of a certification for an EPA-issued NPDES permit. The
contents identified at Sec. 124.53(e) are not consistent with the
contents identified at proposed Sec. 121.7(c) and (d). For example,
Sec. 124.53(e) requires a citation (but not an explanation) for each
condition of certification, whereas proposed Sec. 121.7(d) requires an
explanation (but not a citation) for each condition. Further, Sec.
124.53(e)(1) and proposed Sec. 121.7(d)(2)--both of which identify
what conditions must be included in a certification--are distinct.
Proposed Sec. 121.7(d)(2) incorporates the proposal's concepts of
``the activity as a whole'' and ``water quality requirements'' while
Sec. 124.53(e)(1) does not. EPA intends for all certification
decisions, including those on EPA-issued NPDES permits, to comply with
the requirements discussed above and proposed at Sec. 121.7.
EPA is requesting comment on the proposed approach described above,
including whether the Agency should include additional or alternative
requirements for certification actions. The Agency is also requesting
comment on an alternative approach that would only require a limited
list of contents for certification decisions when EPA acts as a
certifying authority. This alternative approach would not delineate any
specific requirements for certification decisions made by any other
certifying authority.
G. Federal Agency Review
The proposed rule confirms the Agency's longstanding position prior
to the 2020 Rule that Federal agencies may review a certification
decision only for the limited purpose of ensuring that the decision
meets a handful of facial statutory requirements. Specifically, EPA is
proposing that Federal agencies may review a certifying authority's
certification decision to determine (1) whether the decision clearly
indicates the nature of the decision (i.e., is it a grant, grant with
conditions, denial, or express waiver), (2) whether the proper
certifying authority issued the decision, (3) whether public notice was
provided, and (4) whether the decision was issued within the reasonable
period of time. As discussed below, the Agency views this Federal
agency review role as consistent with Agency practice prior to the 2020
Rule and case law.
Section 401 does not expressly provide a defined role for Federal
licensing or permitting agencies to review certifications or change
certification conditions. However, the Agency has long recognized, both
in regulation and guidance, some degree of appropriate Federal agency
review of certification decisions. The 1971 Rule provides Federal
agencies with the ability to determine whether a certifying authority
acted within the reasonable period of time. See 40 CFR 121.16(b) (2019)
(``The certification requirement with respect to an application for a
license or permit shall be waived upon . . . Written notification from
the licensing or permitting agency to the Regional Administrator of the
failure of the State or interstate agency concerned to act on such
request for certification within a reasonable period of time after
receipt of such request . . . .''). Prior EPA guidance acknowledged
that the Federal licensing or permitting agency may review the
procedural requirements of a certification decision. 2010 Handbook, at
32 (rescinded) (citing American Rivers, 129 F.3d at 110-111; City of
Tacoma v. FERC, 460 F.3d 53, 68 (D.C. Cir. 2006)) (``For example, the
federal permitting or licensing authority may review the procedural
requirements of [section] 401 certification, including whether the
proper state or tribe has certified, whether the state or tribe
complied with applicable public notice requirements, and whether the
certification decision was timely.''). However, this guidance also
acknowledged the limitations of Federal agency review and stated that
Federal agencies cannot pick and choose among a certifying authority's
certification conditions. Id. at 10 (citing American Rivers, 129 F.3d
at 110-111).
Prior Agency guidance relied heavily on case law addressing the
question of Federal agency review. A few courts have acknowledged a
limited role for Federal agencies to ensure that a certifying authority
meets certain facial requirements of section 401. The D.C. Circuit has
held that section 401(a)(1) authorized FERC, as the relevant Federal
licensing agency, ``to determine that the specific certification
`required by [section 401 has] been obtained,''' because otherwise,
``without that certification, FERC lack[ed] authority to issue a
license.'' City of Tacoma, 460 F.3d at 67-68 (``If the question [raised
to FERC] regarding the state's section 401 certification is not the
application of state water quality standards but compliance with the
terms of section 401, then FERC must address it.''). The court did not
define what a ``certification required by this section'' included, but
suggested it included at a minimum, ``explicit requirement[s] of
section 401,'' including that the certifying authority provide public
notice, which was the section 401 requirement at issue in the case
before the court. Id. at 68. It is important to note that, while the
court found that FERC had an obligation under the facts of that case to
confirm the public notice requirement was satisfied, the court did not
frame this requirement as a prerequisite in every instance where the
agency is presented with a certification decision. Rather, the court
found that FERC had to confirm compliance in the case before it because
public notice had been ``called into question.'' See id.
In an earlier case, the Second Circuit ruled that FERC did not have
authority to substantively review certification conditions to ``decide
which conditions are within the confines of [section] 401(d) and which
are not.'' American Rivers, 129 F.3d at 107. In reaching this
conclusion, the court noted that FERC nonetheless did have authority to
determine whether the appropriate certifying authority issued the
certification decision and whether the certification decision was
issued within the reasonable period of time. The court explained that,
``[w]hile [FERC] may determine whether the proper state has issued the
certification or whether a state has issued a certification within the
prescribed period, [FERC] does not possess a roving mandate to decide
that substantive aspects of state-imposed
[[Page 35355]]
conditions are inconsistent with the terms of [section] 401.'' Id. at
110-11.
Under the 2020 Rule, the Federal agency may review a certification
to confirm that a number of certification requirements are met as a
prerequisite to accepting the certification decision. 85 FR 42267.
Specifically, the 2020 Rule relies on City of Tacoma to assert that the
plain language of section 401 requires Federal licensing or permitting
agencies ``to confirm that the state has facially satisfied the express
requirements of section 401.'' 85 FR 42267-68 (quoting City of Tacoma,
460 F.3d at 68). The 2020 Rule requires the Federal licensing agency to
ensure (1) compliance with ``other procedural requirements of section
401'' (which included public notice requirements), (2) compliance with
the reasonable period of time, and (3) compliance with the rule's
requirements related to providing a legal and technical basis within
the certification document for the action taken. The 2020 Rule contains
little direction to Federal agencies about how to ensure that those
components are met (e.g., how to confirm public notice took place),
other than noting in the preamble that the Federal agency's review role
does not require the agency to ``make a substantive inquiry into the
sufficiency of the information provided in support of a certification,
condition, or a denial.'' Id. at 42268.
This lack of clarity in the 2020 Rule has led to stakeholder
confusion and misunderstanding about the nature of the Federal agency's
review (e.g., assertions from both Federal agencies and states and
tribes that the review is to be ``substantive'' in nature).
Additionally, although the 2020 Rule limits Federal agency review to
certain procedural components, Federal agency stakeholders expressed
concerns about even this responsibility. In this vein, the 2020 Rule
preamble says that ``[i]f a federal agency, in its review, determines
that a certifying authority failed or refused to comply with the
procedural requirements of the Act, including the procedural
requirements of this final rule, the certification action, whether it
is a grant, grant with conditions, or denial, will be waived.'' Id. at
42266. The 2020 Rule takes the same approach with review of individual
conditions, i.e., if a condition does not meet procedural requirements,
it is waived (even though the certification itself stands). Id. at
42263. The 2020 Rule does not extend Federal agency review to more
substantive requirements of the Act (e.g., whether a certification
decision was within the scope of certification). Id. at 42267.
In pre-proposal feedback for this rule, certifying authorities
expressed concern over the potential consequences of Federal agency
review required by the 2020 Rule. These stakeholders said that,
contrary to the plain language of the statute and legislative history,
the 2020 Rule gives Federal agencies the ability to effectively
``veto'' a state or tribal water quality certification, with no ability
for the certifying authority to fix errors or submit additional
explanatory information. EPA reflected this concern in its recent
Federal Register document, stating that ``EPA is concerned that a
federal agency's review may result in a state or tribe's certification
or conditions being permanently waived as a result of nonsubstantive
and easily fixed procedural concerns identified by the federal
agency.'' 86 FR 29543 (June 2, 2021).
The following subsections discuss the extent of Federal agency
review, the Federal agency review process, and consequences of such
review under this proposal.
1. Extent of Federal Agency Review
The Agency is proposing to reaffirm its longstanding interpretation
prior to the 2020 Rule that Federal agencies may review certification
decisions only for the limited purpose of ensuring decisions will meet
certain facial statutory requirements. Federal agency review of such
requirements does not require a Federal agency to inquire into whether
the certification is consistent with the substantive elements of
Federal, state, or tribal law. In fact, consistent with prior Agency
guidance and the 2020 Rule, section 401 does not authorize Federal
agencies to review or change the substance of a certification (e.g.,
determine whether the certification or its conditions is within section
401's scope of review). See 86 FR 42268; 2010 Handbook, at 10
(rescinded).
Circuit courts have routinely held that Federal agencies may not
question or criticize the substance of a state's water quality
certification or conditions, sees, e.g., City of Tacoma, 460 F.3d at 67
(``[The Federal agency's] role is limited to awaiting, and then
deferring to, the initial decision of the state.''); American Rivers,
129 F.3d at 111 (``[The Federal agency] does not possess a roving
mandate to decide that substantive aspects of state-imposed conditions
are inconsistent with the terms of [section] 401.''); U.S. Dept. of
Interior v. FERC, 952 F.2d 538, 548 (D.C. Cir. 1992) (``FERC may not
alter or reject conditions imposed by the states through section 401
certificates.''). Courts have also cautioned Federal agencies against
imposing conditions they believe are more stringent than the certifying
authority's conditions. See Sierra Club v. U.S. Army Corps of Eng'rs,
909 F.3d 635, 648 (4th Cir. 2018) (``the plain language of the Clean
Water Act does not authorize the Corps to replace a state condition
with a meaningfully different alternative condition, even if the Corps
reasonably determines that the alternative condition is more protective
of water quality''); see also Lake Carriers' Ass'n. v. EPA, 652 F.3d 1,
6, 12 (D.C. Cir. 2011) (concluding that additional notice and comment
on state certification conditions would have been futile because ``the
petitioners have failed to establish that EPA can alter or reject state
certification conditions. . . .'').
Rather, courts have generally found that Federal agencies may
review certification decisions only to see whether the water quality
certifications satisfy the minimum facial requirements of section 401,
including whether the decision was issued within the reasonable period
of time, whether public notice was provided, and whether the proper
certifying authority issued the decision. The court in City of Tacoma
found that if the facial public notice requirement of section 401 is
``called into question'' before the Federal agency, the Federal agency
must determine if it was met. 460 F.3d at 68 (requiring the Federal
agency ``to obtain some minimal confirmation of such compliance, at
least in a case where compliance has been called into question.'').
Therefore, and consistent with the case law, EPA is proposing that
Federal agency review of a certification decision is limited to four
factors. First, a Federal agency may review a certification decision to
confirm the nature of the decision (i.e., whether the certification
decision is a grant, grant with conditions, denial, or express waiver).
Section 401 requires a project proponent to obtain either a
certification or waiver before the Federal agency may issue the license
or permit. If a certifying authority denies certification, then the
license or permit may not be issued. The Federal agency must determine
whether ``the specific certification `required by [section 401 has]
been obtained,' '' because otherwise, ``without that certification,
[the Federal agency] lacks authority to issue a license.'' Id. at 67-
68. It is thus reasonable for a Federal agency to review a
certification decision to ensure it understands which action the
certifying authority took (i.e., grant, grant with conditions, deny, or
expressly waive).
[[Page 35356]]
Second, a Federal agency may confirm that the proper certifying
authority issued the certification decision. Section 401 requires a
project proponent to seek certification from the jurisdiction in which
the discharge originates or will originate. 33 U.S.C. 1341(a)(1).
Allowing a Federal agency to confirm that the proper certifying
authority--meaning the certifying authority for the jurisdiction where
the discharge originates or will originate--has issued certification is
consistent with case law, American Rivers, 129 F.3d at 110-11, and
prior Agency regulations and guidance, 85 FR 42267; 2010 Handbook, at
10 (rescinded).
Third, a Federal agency may review a certification decision to
determine whether the certifying authority complied with its own
established procedures for public notice on requests for water quality
certification. Section 401 requires a certifying authority to provide
procedures for public notice, and a public hearing where necessary, on
a certification request. 33 U.S.C. 1341(a)(1). In City of Tacoma, the
court held that the Federal agency had a statutory obligation to
confirm whether the certifying authority complied with its public
notice procedures in issuing the certification because compliance had
been called into question. 460 F.3d at 68. ``Otherwise, [the Federal
agency] has no assurance that the certification the state has issued
satisfies section 401.'' Id. As discussed above, prior Agency guidance
and regulations have recognized this form of Federal agency review. See
85 FR 42267; 2010 Handbook, at 10 (rescinded).
Lastly, a Federal agency may review a certification decision to
confirm whether it was issued within the reasonable period of time.
Section 401 establishes one year as the outer bound of the reasonable
period of time. 33 U.S.C. 1341(a)(1); H.R. Rep. No. 91-940, at 54-55
(March 24, 1970) (Conf. Rep) (adding a timeline for state certification
``[i]n order to insure that sheer inactivity by the State . . . will
not frustrate the Federal application''). It is thus reasonable for the
Federal agency to determine whether a certifying authority failed to
act within the reasonable period of time, and this has been the
Agency's longstanding position in regulation and guidance. See 40 CFR
121.16(b) (2019); 85 FR 42267; 2010 Handbook, at 10 (rescinded).
Additionally, as discussed above, this is also consistent with case law
on Federal agency review. See American Rivers, 129 F.3d at 110-11
(explaining that FERC ``may determine . . . whether a state has issued
a certification within the prescribed period''); see also Alcoa Power
Generating, 643 F.3d at 972-73 (holding that, like the public notice
requirements at issue in City of Tacoma, the issue of whether a
certifying authority acted upon a certification request within the
statutory one-year period was an issue properly before FERC).
EPA does not find that Federal agencies have the authority to
review other aspects of a certification decision for purposes of
determining whether a ``certification required by [section 401] has
been obtained or has been waived.'' 33 U.S.C. 1341(a)(1). EPA's
proposal to clearly define the extent of Federal agency review in
regulatory text is found in proposed Sec. 121.9. EPA requests comment
on its proposed approach, including whether section 401 authorizes
other aspects of a certification decision to be subject to Federal
agency review.
2. Federal Agency Review Process
This proposed rule also attempts to clarify the manner in which
Federal agency review would occur. Section 401 does not expressly
address what specific information certifying authorities must include
in a certification decision, nor does it address the process of Federal
agency review. While the statute does contain important information
about the identity of the appropriate certifying authority, the length
of the reasonable period of time, and a requirement for public notice,
it does not prescribe how a certifying authority must demonstrate
compliance with those requirements or describe the extent to which they
are subject to Federal agency review.
EPA is not proposing to define what specific information a
certifying authority must include in its certification decision to
demonstrate that it has met these four facial elements of section 401.
Instead, certifying authorities may determine how to demonstrate
compliance in response to a Federal agency inquiry about one of these
aspects of its certification decision. Because certifying authorities
are the entities most familiar with their certification process,
certifying authorities, and not EPA or other Federal agencies, are in
the best position to determine how to demonstrate compliance with these
four section 401 facial elements.
EPA does not anticipate that such demonstrations will be
burdensome. As the court noted in City of Tacoma, Federal agencies only
need ``to obtain some minimal confirmation of such compliance.'' 460
F.3d at 68. For example, the certifying authority may choose to
demonstrate that it provided public notice either by including a copy
of the public notice with the certification or by including an
attestation statement that public notice occurred. Similarly, a
certifying authority may choose to demonstrate that it acted within the
reasonable period of time by providing documentation of the date the
certifying authority received the request for certification and
documentation of the date it furnished the project proponent with a
decision. A certifying authority may also choose to demonstrate that it
is the proper certifying authority by providing location information,
such as a map, demonstrating the discharge will originate in its
jurisdiction. This sort of documentation should satisfy Federal agency
review in most instances.
EPA is requesting comment on its proposed approach, including
examples of how a certifying authority could demonstrate that it met
the section 401 facial requirements. In addition, EPA requests comment
on alternative approaches whereby the Agency might identify in
regulation different elements of a certification decision that might be
appropriate for Federal agency review, or whether EPA should defer to
Federal agencies to define those elements appropriate for them to
review.
3. Consequences of Federal Agency Review
The Agency is proposing to clarify the consequences of Federal
agency review. If a Federal agency reviews a section 401 certification
decision and determines it was not issued within the reasonable period
of time, the Federal agency may determine that a waiver has occurred
(or alternatively, may extend the reasonable period of time up to the
one year statutory maximum). If the Federal agency determines that the
statutory one year maximum has passed, the Federal agency may determine
that a waiver has occurred. As discussed in section V.G in this
preamble, a Federal agency may determine that a constructive waiver has
occurred only if a certifying authority fails to take one of the four
decisions described in this proposal within the reasonable period of
time. Consistent with the 1971 Rule and 2020 Rule, the Agency is
proposing to reaffirm that a waiver of certification occurs if the
certifying authority fails to act within the reasonable period of time.
See 40 CFR 121.9(a)(2)(i), 40 CFR 121.16(b) (2019). Similar to the
approach in the 2020 Rule, the Agency is proposing to retain regulatory
text describing how the Federal agency must communicate its waiver
determination to the project proponent and certifying authority. See 40
CFR 121.9(c). If a Federal agency determines that the
[[Page 35357]]
certification decision was not issued within the reasonable period of
time, the Federal agency shall notify the certifying authority and
project proponent in writing that a waiver has occurred. Similar to the
2020 Rule, see Sec. 121.9(d), the Agency is also proposing to retain
regulatory text that clarifies that such notification from the Federal
agency satisfies the project proponent's obligations under section 401.
Consistent with this approach, EPA is also proposing targeted
conforming revisions to its part 124 and part 122 regulations, where
these regulations allow EPA to find that a certifying authority waived
its right to certify or waived a certification condition for reasons
other than those specified in proposed Sec. 121.8 (failure to act on a
request for certification within the reasonable period of time). EPA is
proposing to delete 40 CFR 124.53(e), which allows EPA to waive
certification conditions that do not meet the requirements of Sec.
124.53(e)(2) or (3). EPA is also proposing to delete Sec. 124.53(e)
because its approach to the contents of certification differs from
proposed Sec. 121.7, as explained in at the end of preamble section
V.F.4. EPA is also proposing to revise 40 CFR 124.55(c), which allows
EPA to waive certification conditions or denials that are based on
State law allowing a less stringent permit condition. EPA is proposing
to delete the second sentence of Sec. 124.55(c), which allows EPA to
waive a certification denial or condition, but the first sentence would
not be affected by this proposal. EPA is proposing to revise 40 CFR
122.44(d)(3), which allows EPA to waive certifications that are stayed
by a court or state board under certain circumstances. EPA proposing to
delete the second and third sentences, which concern certification
waiver. EPA intends that certification waivers for EPA-issued NPDES
permits be governed by the certification waiver requirements in part
121.
The Agency recognizes that a constructive waiver is a severe
consequence; as discussed in section V.G in this preamble, a waiver
means the Federal license or permit may proceed without any input from
the certifying authority. EPA encourages Federal agencies, project
proponents, and certifying authorities to communicate early and often
to prevent inadvertent waivers due to passage of time. If Federal
agency review reveals that a certifying authority has inadvertently
failed to act within the reasonable period of time, EPA encourages
Federal licensing and permitting agencies to extend the reasonable
period of time (provided it does not exceed one year from the receipt
of the certification request) to allow certifying authorities an
opportunity to make a certification decision.\48\ Providing this
opportunity would be consistent with cooperative federalism principles
central to section 401 while respecting the statute's clear direction
that the reasonable period of time may not exceed one year from the
receipt of a request for certification. 33 U.S.C. 1341(a)(1).
---------------------------------------------------------------------------
\48\ Allowing certifying authorities to remedy deficiencies if
there is time remaining in the reasonable period of time is
consistent with EPA's position in the joint memo with the Army
addressing Corps permits. U.S. EPA and Department of the Army, Clean
Water Act Section 401 Certification Implementation Memorandum, at 6
(August 19, 2021).
---------------------------------------------------------------------------
Aside from providing that a waiver occurs if the certifying
authority does not act within the reasonable period of time, the
statute does not provide direction on what should occur if a certifying
authority fails to meet the other facial requirements in section 401.
As discussed earlier, the legislative history indicates that Congress
added the waiver provision to prevent ``sheer inactivity'' by a
certifying authority from holding up the licensing or permitting
process. See H.R. Rep. No. 91-940, at 54-55 (March 24, 1970) (Conf.
Report). Consistent with the statutory language and legislative
history, EPA believes that Congress intended such an extreme outcome
only in situations where certifying authorities fail or refuse to make
a decision, and not where a certifying authority, otherwise attempting
to make a timely decision, fails to comply with other facial
requirements of section 401. Case law also provides support for the
Federal agency asking the certifying authority to either demonstrate
that its decision meets section 401's facial requirements or remedy the
situation instead of deeming any such failure an automatic waiver of
certification. See City of Tacoma, 460 F.3d at 68-69 (``FERC should
seek an affirmation from Ecology that it complied with state law notice
requirements when it issued its water quality certification or, if it
did not, that it has done so in response to this decision.'').
If a Federal agency determines that a section 401 certification
decision does not meet the certifying authority's public notice
procedures, pursuant to proposed Sec. 121.9(b), the Federal agency
must notify the certifying authority of the deficiency and provide the
certifying authority with an opportunity to remedy the noted
deficiency. If necessary, the Federal agency must extend the reasonable
period of time to provide the certifying authority with an opportunity
to remedy the deficiency, but the reasonable period of time may not
exceed one year from the receipt of the certification request.
If Federal agency review reveals that the wrong certifying
authority issued the certification, EPA recommends that the Federal
agency notify the project proponent that it must seek certification
from the appropriate certifying authority before the Federal license or
permit may be issued. As noted above, section 401 requires a project
proponent to seek certification from the jurisdiction in which the
discharge originates or will originate. 33 U.S.C. 1341(a)(1).
Therefore, it is incumbent on the project proponent to identify and
seek certification or waiver from the proper certifying authority
before it may obtain a Federal license or permit.
If a Federal agency determines that a section 401 certification
decision does not clearly indicate whether it is a grant, grant with
conditions, denial, or express waiver, pursuant to proposed Sec.
121.9(b), the Federal agency must notify the certifying authority of
the deficiency and provide the certifying authority with an opportunity
to remedy it. Under EPA's proposed rulemaking, if necessary, the
Federal agency must extend the reasonable period of time to provide the
certifying authority with an opportunity to remedy the deficiency,
subject to the caveat that the reasonable period of time may not exceed
one year from the receipt of the certification request. EPA expects
that a certifying authority would be able to clarify its intended
decision for the Federal agency upon request.
EPA is requesting comment on whether the Agency should develop
procedures regarding how a certifying authority should respond to a
Federal agency's notice regarding deficiencies in its certification
decision. For example, should EPA provide a timeframe for the
certifying authority to affirmatively respond to the Federal agency's
notice of deficiency and provide a justification for any extension to
the reasonable period of time (e.g., length of the public notice
period)? EPA also is requesting comment on all aspects of its proposed
rulemaking regarding Federal agency review and its understanding of the
potential consequences of Federal agency review.
H. EPA's Roles Under Section 401
Section 401 identifies a number of specific roles for EPA. First,
EPA acts as the certifying authority on behalf of states or tribes that
do not have ``authority to give such certification.'' 33
[[Page 35358]]
U.S.C. 1341(a)(1). Second, EPA is responsible for notifying other
states or authorized tribes that may be affected by a discharge from a
federally licensed or permitted activity, and where required, for
providing an evaluation and recommendations on such other state or
authorized tribe's objections. Id. at 1341(a)(2). Lastly, EPA is
responsible for providing technical assistance upon request from
Federal agencies, certifying authorities, or Federal license or permit
applicants. Id. at 1341(b). This section focuses on EPA's role as a
certifying authority and in providing technical assistance. EPA's role
under section 401(a)(2) is discussed in detail in section V.K in this
preamble.
1. EPA's Role as a Certifying Authority
EPA is proposing to revise the part 121 regulations to provide
greater clarity about EPA's process when it acts as the certifying
authority. Pursuant to section 401 of the CWA, EPA acts as the
certifying authority on behalf of states or tribes that do not have
``authority to give such certification.'' 33 U.S.C. 1341(a)(1). The
1971 Rule required EPA to provide certification in two scenarios:
first, where EPA promulgated standards pursuant to section 10(c)(2) of
the 1970 Water Quality Improvement Act; and second, where water quality
standards have been established, but no state or interstate agency has
authority to provide certification. 40 CFR 121.21 (2019). As discussed
in section IV.A in this preamble, the 1971 Rule was promulgated prior
to the enactment of the 1972 CWA amendments; as a result, the language
in the 1971 Rule regarding EPA as a certifying authority does not
reflect the amended text of section 401. In the 2020 Rule, EPA updated
this provision with new regulatory text that indicates that EPA
provides certification consistent with the 1972 statutory text and
notes that EPA is required to comply with part 121 when it acts as a
certifying authority. 40 CFR 121.13.
EPA is proposing minor, conforming modifications to current Sec.
121.13(a) and (b). Specifically, consistent with the language in
section 401(a)(1), the Agency is proposing to reaffirm that EPA is
required to provide certification where no state, tribe, or interstate
agency has the authority to provide certification or a waiver. See
proposed Sec. 121.16(a). The Agency is also proposing to reaffirm
that, when it acts as a certifying authority, EPA must comply with both
section 401 and the proposed requirements in part 121. See proposed
Sec. 121.16(b). Alternatively, EPA is requesting comment on whether it
needs to clarify in regulatory text the circumstances under which it
would act as a certifying authority, or whether the statutory language
is clear enough that it ``speaks for itself.''
Currently, EPA acts as the certifying authority in two scenarios:
(1) On behalf of tribes without ``treatment in a similar manner as a
state'' (TAS) and (2) on lands of exclusive Federal jurisdiction. In
the first scenario, if a tribe does not obtain TAS for section 401, EPA
acts as the certifying agency for any federally licensed or permitted
activity that may result in a discharge that originates in Indian
country lands. As discussed in section V.L in this preamble, a tribe
may obtain TAS for section 401 for the purpose of issuing water quality
certifications. When EPA certifies on behalf of tribes without TAS, its
actions as a certifying authority are informed by its tribal policies
and the Federal trust responsibility to federally recognized tribes.
EPA's 1984 Indian Policy, recently reaffirmed by EPA Administrator
Regan, recognizes the importance of coordinating and working with
tribes when EPA makes decisions and manages environmental programs that
affect Indian country. See EPA Policy for the Administration of
Environmental Programs on Indian Reservations (November 8, 1984),
available at https://www.epa.gov/sites/default/files/2015-04/documents/indian-policy-84.pdf; see also Memorandum from Michael S. Regan to All
EPA Employees, Reaffirmation of the U.S. Environmental Protection
Agency's Indian Policy (September 30, 2021), available at https://www.epa.gov/system/files/documents/2021-09/oita-21-000-6427.pdf. This
includes coordinating and working with tribes on whose behalf EPA
reviews and acts upon requests for certification on federally licensed
or permitted projects.
In the second scenario, EPA acts as the certifying authority in
situations where the Federal Government has exclusive jurisdiction over
certain lands. Exclusive Federal jurisdiction is obtained in multiple
ways, including (1) where the Federal Government purchases land with
state consent to jurisdiction, consistent with article 1, section 8,
clause 17 of the U.S. Constitution; (2) where a state chooses to cede
jurisdiction to the Federal Government; and (3) where the Federal
Government reserved jurisdiction upon granting statehood. See Collins
v. Yosemite Park Co., 304 U.S. 518, 529-30 (1938); James v. Dravo
Contracting Co., 302 U.S. 134, 141-42 (1937); Surplus Trading Company
v. Cook, 281 U.S. 647, 650-52 (1930); Fort Leavenworth Railroad Company
v. Lowe, 114 U.S. 525, 527 (1895). It is important to note that lands
of exclusive Federal jurisdiction do not include lands where the
Federal Government and a state, tribe, or interstate agency share
jurisdictional responsibility.
While 16 U.S.C. Chapter 1 identifies multiple national parks as
lands of exclusive Federal jurisdiction,\49\ EPA does not maintain a
map or list delineating all lands of exclusive Federal jurisdiction. In
the preamble to the 2020 Rule, EPA noted that the number and extent of
lands under exclusive Federal jurisdiction are subject to change and
stated that it is the obligation of the project proponent to determine
the identity of the appropriate certifying authority when seeking
section 401 certification. 85 FR 42270 (July 13, 2020). Because such
status is subject to change, EPA is not proposing to provide an
exclusive list of lands subject to exclusive Federal jurisdiction.
However, EPA is considering development of guidance to help
stakeholders identify such areas. EPA is requesting comment on whether
it should attempt to provide a list of lands subject to exclusive
Federal jurisdiction or whether there are other examples or categories
of lands of exclusive Federal jurisdiction that EPA should recognize,
aside from the national parks identified in 16 U.S.C. Chapter 1, as
lands of exclusive Federal jurisdiction.
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\49\ These appear to include Denali National Park and Preserve,
Yellowstone National Park, Yosemite National Park, Sequoia National
Park, Crater Lake National Park, Glacier National Park, Rocky
Mountain National Park, Mesa Verde National Park, Lassen Volcanic
National Park, Great Smoky Mountains National Park, Mammoth Cave
National Park, and Isle Royale National Park.
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Consistent with the 2020 Rule, under this proposal, when EPA acts
as the certifying authority, it is subject to the same requirements as
other certifying authorities (e.g., reasonable period of time to act on
a request for certification) under section 401 and 40 CFR 121. In
contrast to the 2020 Rule, this proposal does not retain the request
for additional information provisions included in Sec. 121.14 when EPA
is the certifying authority. Under the 2020 Rule, EPA introduced limits
on EPA's ability, as a certifying authority, to request additional
information from a project proponent once the reasonable period of time
began. These provisions include a requirement that EPA must initially
request additional information within 30 days of receiving a request
for certification and limitations on the type and scope of additional
information EPA may request. 40 CFR 121.14(a)-(c). Additionally, the
2020 Rule requires EPA to provide the project proponent with a deadline
to respond to request for
[[Page 35359]]
additional information and acknowledges that a project proponent's
failure to provide additional information neither extends the
reasonable period of time, nor prevents EPA from acting on the request
for certification. Id. at Sec. 121.14(d)-(e).
EPA proposes to remove Sec. 121.14 in its entirety because it
finds these provisions not conducive to an efficient certification
process for several reasons. The preamble to the 2020 Rule stated that
it was ``reasonable to assume that Congress intended some appropriate
limits be placed on the timing and nature of such requests [for
additional information]'' because of the overarching statutory
timeline. 85 FR 42271. Yet, neither the 2020 Rule preamble nor its
regulatory text articulates how a 30-day limitation on EPA's initial
request for additional information is compelled or even consistent with
the statutory limitation that a certifying authority must act within a
reasonable period of time. Although it is ideal for EPA to have
relevant information to inform its analysis early in the reasonable
period of time, various questions or needs may arise later in the
review process that are critical to EPA acting on a request for
certification. There is nothing in the statutory language that compels
or even suggests that EPA should have a limited ability to use the
reasonable period of time to request additional information to evaluate
a request for certification and make a fully informed decision. If the
Agency is limited in its ability to request additional information to
inform its decision, it may need to deny a request for certification
instead of utilizing the additional information to possibly grant
certification. Such an outcome would unnecessarily impede the Federal
license or permitting process.
The current regulatory language also unnecessarily injects
ambiguity into the certification process. Section 121.14(b) limits
requests for additional information to that which is ``directly related
to the discharge'', while Sec. 121.14(c) limits requests only to
information than can be ``collected or generated within the reasonable
period of time.'' Yet neither phrase is defined nor explained in the
preamble or regulatory text to the 2020 Rule which introduces
uncertainty into what kind of information EPA could actually request.
Furthermore, the statutory language and this proposal already place a
number of limitations on all certifying authority decisions. As
proposed in Sec. 121.7(b), all certifying authorities, including EPA,
must act within the reasonable period of time and within the scope of
certification. EPA finds that these proposed regulatory requirements
are sufficient to ensure the Agency will act on requests for
certification in a timely and appropriate manner.
Consistent with the Agency's proposal to remove the aforementioned
limitations on EPA's ability to request additional information, EPA is
also proposing to remove the provisions at Sec. 121.14(d) and (e),
which discuss how EPA and project proponents must respond to requests
for additional information or lack thereof. The Agency is requesting
comment on whether EPA should provide, either through guidance or in
regulation, its expectations regarding communication with project
proponents when EPA is a certifying authority.
EPA is proposing to retain and update the provision regarding the
certification public notice and hearing process when EPA is the
certifying authority, currently located at Sec. 121.15. The statutory
language of section 401(a)(1) requires states and interstate agencies
to establish procedures for public notice and hearings. The D.C.
Circuit has held that certifying authorities have an obligation to
provide public notice on certification requests. See City of Tacoma,
460 F.3d at 67-68. The 1971 Rule stated that EPA could provide public
notice either by mailing notice to state and local authorities, state
agencies responsible for water quality improvement, and ``other parties
known to be interested in the matter'' (including adjacent property
owners and conservation organizations), or, if mailed notice is deemed
``impracticable,'' by publishing notice in a newspaper of general
circulation in the area where the activity is proposed. 40 CFR 121.23
(2019). With regard to hearings, the 1971 Rule provided that the
Regional Administrator with oversight for the area of the proposed
project has discretion to determine that a hearing is ``necessary or
appropriate,'' and that ``[a]ll interested and affected parties'' would
have reasonable opportunity to present evidence and testimony at such
hearings. Id. EPA updated this provision in the 2020 Rule to expand the
scope of possible parties that may receive notice to avoid
unintentionally narrowing the list of potentially interested parties.
85 FR 42271. Additionally, under the 2020 Rule, EPA has placed a
timeframe on when the Agency must provide public notice following
receipt of a certification request and retained discretion to provide
for a public hearing as necessary or appropriate. Id; See 40 CFR
121.15.
In proposed Sec. 121.17, EPA is proposing to retain the public
notice provision from the 2020 Rule with revisions to facilitate
participation by the broadest number of potentially interested
stakeholders and clarify that following such public notice, the
Administrator shall provide an opportunity for public comment. The 1971
Rule allowed the Agency to either provide notice to a list of possible
interested parties through mail, including adjacent property owners and
heads of state agencies responsible for water quality improvement, or
provide notice in a ``newspaper of general circulation in the area in
which the activity is proposed to be conducted.'' 40 CFR 121.23 (2019).
As mentioned previously, the 2020 Rule removed this 1971 Rule provision
that may have unintentionally narrowed the list of stakeholders who may
wish to receive notice on projects seeking certification. However, the
2020 Rule defines an appropriately broad list of potentially interested
stakeholders (e.g., parties known to be interested in the proposed
project). See 40 CFR 121.15(a). Additionally, the 1971 Rule limited the
means for providing public notice to mail and newspaper circulation and
may also unintentionally limit access to notice on such projects,
particularly as stakeholders increasingly rely more on digital means of
communication. Accordingly, EPA is proposing in Sec. 121.17 to provide
public notice on receipt of a request for certification and broader
public participation by not specifying the particular manner(s) in
which that notice will occur. Aligning with the commitment to empower
communities, protect public health and the environment, and advance
environmental justice in Executive Orders 13990 and 12898, the proposal
allows for outreach designed to reach all potentially interested
stakeholders, including population groups of concern (e.g., minority
and low-income populations as specified in Executive Order 12898 and
indigenous peoples, as identified in EPA technical guidance \50\ as a
population group of concern. The Agency encourages doing so by using
all appropriate means and methods. This proposed approach will allow
EPA greater flexibility to address on a case-by-case basis specific
issues regarding
[[Page 35360]]
notice, such as broadband access issues and requirements for regional
publications. Additionally, EPA is not proposing to provide in
regulatory text an exhaustive list or examples of potentially
interested parties to avoid unintentionally excluding some interested
stakeholders on that list. EPA generally believes those stakeholders to
whom it is appropriate to provide public notice may include state,
tribal, county, and municipal authorities, heads of state agencies
responsible for water quality, adjacent property owners, and
conservation organizations. EPA is requesting comment on whether it
should specify in regulatory text a list of stakeholders to whom notice
of a certification request should be given.
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\50\ EPA's Technical Guidance for Assessing Environmental
Justice in Regulatory Action identifies population groups of concern
including indigenous peoples and group as those identified under
E.O. 12898 (minority and low-income populations) as well as sub-
populations that may be at greater risk for experiencing adverse
effects, including those that rely on fish/wildlife for subsistence,
age groups, and gender groups (p. 6).
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Second, EPA is proposing to provide public notice within 20 days
following receipt of a certification request. The 1971 Rule did not set
a time frame for EPA's public notice after receiving a certification
request. In contrast, the 2020 Rule states that EPA would provide
public notice 20 days from receipt of a certification request. In EPA's
view, continuing to provide a time frame for EPA's issuance of public
notice following a receipt of a certification request will contribute
to better accountability, transparency, and certainty with respect to
EPA's handling of certification requests. Generally, EPA views it will
be able to provide public notice within the proposed timeframe. EPA
finalized an identical timeframe under the 2020 Rule, which it has been
able to meet without difficulty in most instances. EPA is requesting
comment on whether this 20-day time frame is reasonable, whether EPA
should provide notice sooner or later, or whether it is even necessary
to provide a time frame in regulatory text.
EPA is proposing that once the Administrator provides public notice
on receipt of a request for certification, the Administrator must
provide an opportunity for public comment. EPA is not proposing to
define the length of the public comment period. Rather, EPA believes
the appropriate timeframe for comment is more appropriately determined
on a case-by-case basis, considering project-specific characteristics.
In general, EPA anticipates a 30-day comment period; however, comment
periods as short as 15 days or as long as 60 days may be warranted in
some cases, based on the nature of the project.
EPA may also hold a public hearing after it provides public notice
on receipt of a request for certification. EPA is proposing to retain
with minor modifications the public hearing provision currently located
at Sec. 121.15(b). For context, the 1971 Rule provided that the
Regional Administrator may hold a public hearing at their discretion.
40 CFR 121.23 (2019). Although ``[a]ll interested and affected
parties'' have the opportunity to present evidence and testimony at a
public hearing, the scope of the hearing is limited to the question of
``whether to grant or deny certification.'' Id. The 2020 Rule carries
forward the position that the Agency has discretion to determine
whether a public hearing is necessary or appropriate; however, the 2020
Rule removes the limitation on the subject matter of the public
hearing. Consistent with the 2020 Rule, under Sec. 121.17(b) of this
proposal, stakeholder input at public hearings may cover any relevant
subject matter on the proposed project to best inform EPA as it makes
its certification decision. EPA is requesting comment on the proposed
public hearing provision in general.
The Agency is also providing further insight on its plans to
incorporate environmental justice into its role as a certifying
authority. As discussed in section IV in this preamble, the Agency
intends for this proposal to address essential water quality protection
policies identified in Executive Order 13990, including environmental
justice. In addition to the policy directive from Executive Order
13990, other Executive orders emphasize the importance of advancing
environmental justice in Federal agency actions. See E.O. 12898, 59 FR
7629 (February 11, 1994) (directing agencies to make environmental
justice part of their mission by identifying and addressing, as
appropriate, disproportionately high and adverse human health or
environmental effects of their programs, policies, and activities on
minority and low-income populations in the United States), E.O. 14008,
85 FR 7619 (January 27, 2021) (expanding on the policy objectives
established in E.O. 12898 and directing Federal agencies to develop
programs, policies, and activities to address the disproportionately
high and adverse human health environmental, climate-related and other
cumulative impacts on vulnerable, historically marginalized, and
overburdened communities, as well as the accompanying economic
challenges of such impacts).\51\
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\51\ The Agency also finalized and published the fiscal year
(FY) 2022-2026 EPA Strategic Plan in March 2022, which includes new
environmental justice strategic goals and emphasis to be embedded in
all EPA work. See https://www.epa.gov/planandbudget/strategicplan.
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Consistent with these directives and EPA technical guidance, when
EPA acts as a certifying authority, the Agency should consider impacts
on minority, low-income, indigenous communities who disproportionately
bear the burdens of environmental pollution and hazards. In considering
impacts from a federally licensed or permitted project, water quality
related impacts on population groups of concern are issues that fall
within the relevant scope of analysis and should inform decision-making
on requests for certification. Specifically, the Agency intends to
consider the extent to which the ``activity as a whole'' or any
discharge may cause water quality-related effects with the potential to
impact population groups of concern. Additionally, as discussed above,
the Agency finds that broadening the public notice provision will
provide communities seeking to advance environmental justice with
greater opportunities to inform the certification process. The Agency
invites comment on ways the Agency can further incorporate
environmental justice and related concerns into its certification
process, including whether the Agency should develop any regulatory
text to this effect.
2. EPA's Role as a Technical Advisor
Section 401(b) provides certifying authorities, project proponents,
and Federal agencies with the ability to ask EPA for technical advice
on applicable effluent limitations, or other limitations, standards,
regulations, or requirements, or water quality criteria, and any
methods to comply with such limitations, standards, regulations,
requirements, or criteria. See also H.R. Rep. No. 92-911, at 124 (1972)
(``The Administrator may perform services of a technical nature, such
as furnishing information or commenting on methods to comply with
limitations, standards, regulations, requirements, or criteria, but
only upon the request of a State, interstate agency, or Federal
agency.''). The 1971 Rule acknowledged this role but limited it to
provision of technical advice on water quality standards. 40 CFR 121.30
(2019). In the 2020 Rule, the Agency modified this provision to expand
the scope of technical advice and assistance EPA might provide to
better align with the statutory text. 85 FR 42274-75 (July 13, 2020).
Therefore, consistent with the scope of section 401(b), EPA is
proposing to revise the regulatory text currently at Sec. 121.16 to
reflect the statutory text more directly. Under this proposal, EPA
shall provide technical advice, upon request by a Federal agency,
certifying authority, or project proponent, on (1) applicable effluent
limitations, or other limitations, standards (including water
[[Page 35361]]
quality standards such as water quality criteria), regulations, or
requirements, and (2) any methods to comply with such limitations,
standards, regulations, or requirements. See proposed Sec. 121.18.
Federal agencies, certifying authorities, and project proponents may
request EPA's technical assistance at any point in the certification
process.
EPA does not intend this proposal to give EPA the authority to make
certification decisions for states and authorized tribes, or to
independently review state or tribal certifications or certification
requests. See H.R. Rep. 92-911, at 124 (1972) (``The Committee notes
that a similar provision in the 1970 Act has been interpreted to
provide authority to the Administrator to independently review all
State certifications. This was not the Committee's intent. The
Administrator may perform services of a technical nature, such as
furnishing information or commenting on methods to comply with
limitations, standards, regulations, requirements or criteria, but only
upon request of a State, interstate agency or Federal agency.''). Nor
does the Agency consider its role under section 401(b) to include
providing monetary or financial support to certifying authorities in
implementing their section 401 programs. The Agency observes that there
are other means for certifying authorities to seek financial assistance
for their water quality certification programs (e.g., CWA section 106
grants). The Agency requests comments on whether any additional
procedural steps should be described in regulatory text, such as the
manner in which certifying authorities, Federal agencies, and project
proponents may request technical assistance.
I. Modifications
The Agency is proposing to reintroduce a certification
modifications provision. Prior to the 2020 Rule, the Agency's
longstanding 1971 Rule allowed certification modifications to occur
after a certification is issued, provided the certifying authority,
Federal agency, and the EPA Regional Administrator agree to the
modification. 40 CFR 121.2(b) (2019). In response to stakeholder
recommendations and pre-proposal input to allow certification
modifications, the Agency is proposing a process similar to the 1971
Rule that allows a certifying authority to modify a certification after
reaching an agreement to do so with the Federal licensing or permitting
agency (but not EPA).
CWA section 401 does not expressly authorize or prohibit
modifications of certifications; nor does it preclude the certifying
authority from participating in the licensing or permitting process
after the issuance of a certification. See 33 U.S.C. 1341(a)(3)-(a)(5).
In a significant change from prior practice, the 2020 Rule removes
the 1971 Rule's modification provision in its entirety and shifts the
obligation to define when certification modifications are allowed to
the Federal licensing or permitting agency. 85 FR 42278 (July 13,
2020). However, the 2020 Rule does not interpret the statutory silence
in section 401 as prohibiting all modifications. Rather, the 2020 Rule
preamble asserts that section 401 does not provide EPA an oversight
role in the modification process or authorize ``unilateral''
modifications by certifying authorities. Id. The 2020 Rule preamble
acknowledges that certification modifications could occur through other
mechanisms (e.g., as provided in other Federal regulations), and
encourages Federal agencies to establish procedures in regulation ``to
clarify how modifications would be handled in these specific
scenarios.'' Id. at 42279.
Beyond modifications to existing certifications, the 2020 Rule
preamble also suggests there might be circumstances that warrant the
submission of a new request for certification, such as ``if certain
elements of the proposed project (e.g., the location of the project or
the nature of any potential discharge that may result) change
materially after a project proponent submits a certification request.''
Id. at 42247. The Agency declined to identify in the 2020 Rule itself
specific circumstances that might warrant the submission of a new
certification request. After promulgation of the 2020 Rule, the Agency
did not issue any further guidance on which situations warranted a new
certification request (as opposed to modification of the existing
certification through other Federal agency processes).
In its 2021 Federal Register document, EPA expressed concern ``that
the [2020 Rule's] prohibition of modifications may limit the
flexibility of certifications and permits to adapt to changing
circumstances.'' 86 FR 29544. Stakeholders have expressed similar
concerns, noting that minor changes may occur in the project that may
not rise to a level that requires a new certification (e.g., needing to
extend the certification's ``expiration'' date to match a permit
extension, or shifting the certified ``work window'' to reduce the
amount of work occurring during high-flow periods), but may be
significant enough to warrant a modification of the certification.
During pre-proposal outreach, certifying authorities, project
proponents, and non-governmental organizations expressed support for a
certification modification process that balances transparency and an
ability to adapt to new information. While some project proponents
requested flexibility to adapt to changing circumstances, they noted
that any rulemaking should limit unilateral actions a certifying
authority may take to modify a certification after issuance.
In response to stakeholder recommendations to allow certification
modifications, the Agency is proposing a process similar to the 1971
Rule that allows a certifying authority to modify a previously granted
certification (with or without conditions) after reaching an agreement
to do so with the Federal licensing or permitting agency. See proposed
Sec. 121.10.
The proposed approach is also consistent with section 401's
temporal limitations on when a certifying authority may act on a
certification request. The statute requires a certifying authority to
act on a request for certification within a reasonable period of time
not to exceed one year. 33 U.S.C. 1341(a)(1). As discussed in section
V.F in this preamble, the Agency interprets the term ``to act on a
request for certification'' to mean the certifying authority must make
a decision to grant, grant with conditions, deny, or expressly waive
certification. Under this proposed rulemaking, a certification
modification could occur after the reasonable period of time in which
the original certification decision was made.\52\ The Agency does not
view allowing such modifications as contrary to the text of, or
Congressional intent supporting, the reasonable period of time
limitation. First, on its face, the reasonable period of time
limitation only applies to the certifying authority's action on the
request for certification. The statute is silent regarding whether it
also applies to modifications. Second, in imposing the reasonable
period of time limitation, Congress was concerned by the potential for
the certifying authority's ``sheer inactivity'' to delay the project.
See H.R. Rep. 92-911, at 122 (1972). That concern is not present with
modifications because the certifying authority will have already acted
on the request. Moreover, the Agency's proposal requires that the
Federal agency also agree to initiate the modification process.
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\52\ See discussion of reasonable period of time in section V.D
in this preamble regarding extensions of the reasonable period of
time, not to exceed one year from receipt of the request for
certification.
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EPA intends that, as used here, a modification means a change to an
[[Page 35362]]
element or portion of a certification or its conditions; it does not
mean the wholesale reversal of a certification decision. For example,
if a certifying authority has previously waived certification, that
waiver may not be modified because there would be no ``certification''
to modify. Thus, a certifying authority may not ``modify'' a waiver by
changing it into a grant, a grant with conditions, or a denial.
Similarly, a denial of certification cannot be modified into a grant
(with or without conditions) of certification. Furthermore, under this
proposed rulemaking, a previously granted certification (with or
without conditions) cannot be converted into a waiver or denial of
certification because EPA considers a modification to be a change to an
element or portion of a certification, not a reconsideration of the
decision whether to certify. Constraining certifying authorities from
fundamentally changing their certification action (e.g., changing a
grant into a denial or vice versa) through a modification process
recognizes reliance interests and promotes regulatory certainty.
Further, EPA has concerns that changing the fundamental nature of the
certification action (e.g., change a grant, denial, or waiver to
something entirely different) may be inconsistent with the
Congressional admonition to act on a certification request within the
statutory reasonable period of time.
The Agency is proposing that the ability to modify a certification
be subject to two further limitations. First, similar to the 1971 Rule,
the certifying authority and the Federal agency must agree in writing
that a modification should be made. Second, the certifying authority
may modify only those portions of the certification that the two
parties agree should be modified. Both of these limitations are
discussed below.
First, EPA is proposing that a modification may only occur where a
Federal agency and certifying authority agree in writing that the
certification should be modified. The parties would have to agree that
one or another part of the certification should be modified; they would
not have to agree to the specific language of such modification. Unlike
the 1971 Rule, the Agency is not proposing to include EPA in the
certification modification process where the Agency is neither the
certifying authority nor the Federal licensing or permitting agency. As
noted in the 2020 Rule preamble, the statute does not expressly provide
EPA with a role in the modification process, unlike the Agency's other
roles under section 401.\53\ See 85 FR 42278 (July 13, 2020).
Additionally, although the 1971 Rule provides the Agency with an
oversight role in the modification process, the preamble to the 1971
Rule does not explain why the Agency was given such a role. See 36 FR
8563-65 (May 8, 1971). As such, the Agency does not see the need for
such a role now, especially where EPA was not involved in the original
certification decision and is not the relevant Federal permitting
agency. EPA is proposing that it should not have an oversight role in
the certification modification process. Consistent with the 1971 Rule,
the Agency is also not proposing to require that the project proponent
agree to the modification. However, the Agency anticipates that project
proponents may still play some part in the modification process (e.g.,
notifying the certifying authority when it thinks a modification may be
appropriate). The Agency is requesting comment on whether the
regulations should provide project proponents with a more explicit and
expansive role in the modification process.
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\53\ See section V.H in this preamble discussing EPA's specific
roles identified in section 401, including acting as a certifying
authority on behalf of jurisdictions lacking authority, notifying
other jurisdictions where their water may be affected by a discharge
from another jurisdiction, and providing technical assistance upon
request.
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Because the Agency is reintroducing a provision similar to the 1971
Rule's collaborative approach to modifications (albeit without EPA's
involvement), the proposal would not allow for unilateral modifications
by certifying authorities. This is consistent with the 2020 Rule. While
the statutory language and legislative history appear to countenance a
role for certifying authorities after a certification is issued, EPA
does not think that role includes unilateral action to modify a
certification.\54\ Rather, the certifying authority's actions under
sections 401(a)(3)-(a)(4) depend on the existence of either a preceding
or subsequent Federal agency action. See 33 U.S.C. 1341(a)(3)-(a)(4).
The Agency does not view conditions in the original certification that
require ongoing or future monitoring or modeling activities, including
when paired with clearly defined adaptive management response actions,
as unilateral certification modifications. Such conditions merely put
project proponents and Federal agencies on notice at the time of
certification that future adaptive management implementation actions
might be needed.\55\
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\54\ See 33 U.S.C. 1341(a)(3)-(a)(4); Keating v. Federal Energy
Regulatory Comm'n, 927 F.2d 616, 621-22 (D.C. Cir.1991) (summarizing
section 401(a)(3)); see also 115 Cong. Rec. 9257, 9268-9269 (April
16, 1969) (discussing a hypothetical need for a state to take
another look at a previously certified federally licensed or
permitted activity where circumstances change between the issuance
of the construction permit and the issuance of the operation
permit).
\55\ See section V.F for further discussion on the importance of
certification conditions and adaptive management, particularly where
future water quality-related impacts may occur due to climate change
or other events.
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The Agency is not proposing to define the specific circumstances in
which a Federal agency and certifying authority may agree to modify a
certification. During the pre-proposal input period, stakeholders said
they need more flexibility than the 2020 Rule provides for
modifications such as correcting typographical errors, changing a point
of contact, or adjusting a certification's expiration date. The Agency
invites comment on other scenarios or reasons for certification
modifications.
The last proposed limitation on a certification modification is
that the certifying authority may only modify those portions of the
certification that the Federal agency agrees may be modified. For
example, if a Federal agency and certifying authority agree that a
modification is necessary to fix a typographical error in the
certification, the certifying authority may only modify that aspect of
the certification. EPA recommends that the modification process be
collaborative and that any modification be limited by the nature of the
Federal agency and certifying authority's agreement. However, EPA is
not suggesting that Federal agencies and certifying authorities must
collaborate on the specific language of the certification modification.
Rather, EPA's proposal contemplates that the certifying authority and
the Federal agency agreement would identify those portions of the
certification decision that the certifying authority would modify, and
then the certifying authority would be responsible for drafting the
modification language. The Agency is requesting comment on an
alternative approach whereby the actual language of the certification
modification would be agreed upon by both the Federal agency and the
certifying authority.
EPA is not proposing to place regulatory limitations on the point
in time that certification modifications may occur. Rather, the Agency
expects this proposal to provide the opportunity for certification
modification at any point after certification issuance, provided the
Federal agency and the certifying authority agree to make the
modification. EPA is requesting comment on this approach. EPA is also
[[Page 35363]]
requesting comment on whether, in the interest of finality and
reliance, there should be a temporal limitation on the ability to
modify certifications. EPA is also requesting comment on whether the
certification modification process should account for (1) whether there
is a Federal license or permit modification process already in place
and (2) the point in time at which a modification may be made (e.g., if
new information supporting a modification arises either before or after
issuance of the final license or permit).
EPA is also proposing to delete 40 CFR 124.55(b), which describes
the circumstances under which a modification may be made to a
certification on an EPA-issued NPDES permit. The approach to
modifications in Sec. 124.55(b) differs significantly from the
approach proposed at Sec. 121.10. In many respects, it is more
limited. For instance, Sec. 124.55(b) allows modifications after
permit issuance only at the request of the permittee and only to the
extent necessary to delete any conditions invalidated by a court or
appropriate state board or agency. In one way, it is broader because it
does not require EPA as the Federal permitting agency to agree to the
modification. EPA intends for all certification modifications,
including for EPA-issued NPDES permits to follow the approach discussed
above and proposed at Sec. 121.10. EPA is requesting comment on
whether it should allow a certifying authority to unilaterally modify
any certification, including but not limited to certifications for EPA-
issued NPDES permits, in circumstances under which there is a change in
State law or regulation upon which a certification is based, or if a
court of competent jurisdiction or appropriate state board or agency
stays, remands, or vacates a certification after license or permit
issuance. See 40 CFR 124.55(b).
Given the pre-proposal stakeholder input and the Agency's
experience with certification modifications, the Agency is proposing to
reintroduce a modification process for certifications, provided the
certifying authority and Federal agency agree that a modification is
necessary. By proposing this collaborative and adaptive process, EPA
expects that certifying authorities and Federal agencies (as well as
project proponents) will have the flexibility they need to adapt to
changing circumstances or new information, while recognizing the need
to protect reliance interests and promote transparency.
J. Enforcement and Inspections
This section of the preamble discusses a number of issues that have
arisen with respect to enforcement of the requirement to obtain CWA
section 401 certifications and enforcement of certification conditions.
The Agency is addressing these issues in response to stakeholder
concern and confusion over how the 2020 Rule addresses CWA section 401
enforcement. EPA is not proposing to retain any regulatory text
regarding enforcement of the requirement to obtain section 401
certification or enforcement of certification conditions.\56\
Nevertheless, in light of the significant pre-proposal input EPA
received on this issue, EPA will discuss some of the more common
concerns that have been identified regarding enforcement of the
requirement to obtain section 401 certification and enforcement of
certification conditions and seek further comment and input from
stakeholders. To be clear, EPA is not offering new interpretations or
positions on most of the issues discussed below. EPA does, however,
invite comment on whether any of the interpretations or positions or
judicial holdings identified below should be expressed in regulatory
language in the final rule, specifically the interpretations on the
enforceability of certification conditions by Federal agencies and
certifying authorities; the judicial holdings regarding the application
of the CWA citizen suit provision to certifications and certification
conditions; and the interpretation of the term ``review'' in CWA
section 401(a)(4).
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\56\ EPA is proposing regulatory text regarding Federal agency
review of certification decisions. See section V.G for further
discussion.
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1. General Enforcement Issues
Section 401 contains three provisions directly relevant to
enforcement. First, section 401(a)(4) provides certifying authorities
with an opportunity, prior to operation, to inspect a certified
federally licensed or permitted activity or facility that does not
require a Federal operating license to assure its operation will not
violate water quality requirement. 33 U.S.C. 1341(a)(4). If the
certifying authority determines that the operation will violate
applicable water quality requirements, the Federal agency may suspend
the license or permit after a public hearing. Id. Second, section
401(a)(5) provides that any certified Federal license or permit may be
``suspended or revoked'' by the Federal agency ``upon the entering of a
judgment under [the CWA] that such facility or activity has been
operated in violation'' of the enumerated sections of the CWA. Id. at
1341(a)(5). Third, section 401(d) provides that certification
conditions ``shall become a condition on any Federal license or permit
subject to the provisions of this section.'' Id. at 1341(d).
Of these three provisions, the 1971 Rule only included regulatory
text on section 401(a)(4), as discussed below in the section on
inspection authority. The 1971 Rule did not contain any regulatory
provisions addressing section 401(a)(5) or section 401(d) (the latter
of which was not added to the statute until the 1972 amendments). The
2020 Rule addresses section 401(d) and section 401(a)(4). Regarding
section 401(d), the 2020 Rule states that the Federal agency ``shall be
responsible for enforcing certification conditions'' incorporated into
its license or permit. Regarding section 401(a)(4), the 2020 Rule
allows the pre-operation inspection under section 401(a)(4) of all
certified projects, regardless of whether they had received a
subsequent Federal operating license or permit. See 85 FR 42275-76. The
2020 Rule preamble also stated that the ``CWA does not provide an
independent regulatory enforcement role for certifying authorities,''
id. at 42275, and declined to finalize an interpretation regarding CWA
section 505 citizen suits and section 401. Id. at 42277.
In EPA's notice of intent to revise the 2020 Rule, EPA requested
stakeholder feedback on several enforcement related issues, including
``the roles of federal agencies and certifying authorities in enforcing
certification conditions, whether the statutory language in CWA Section
401 supports certifying authority enforcement of certification
conditions under federal law, whether the CWA citizen suit provision
applies to Section 401, and the rule's interpretation of a certifying
authority's inspection opportunities.'' 86 FR 29543 (June 2, 2021). In
pre-proposal input, stakeholders generally agreed that Federal agencies
could enforce certification conditions. However, stakeholders expressed
concern that the 2020 Rule prevents states and tribes from exercising
their independent enforcement authority and relied solely on Federal
agencies to enforce certification conditions. Several stakeholders
expressed concern that Federal agencies may not be willing or able to
enforce certification conditions incorporated into their Federal
licenses or permits due to resource limitations (e.g., staff, funding,
time). Conversely, a few stakeholders asserted that certifying
authorities did not have an enforcement role either under section 401
or any other provision of the CWA, including
[[Page 35364]]
section 505. Other stakeholders asserted that section 505 provided for
citizen suit enforcement of both failures to obtain section 401
certification and failure to comply with certification conditions.
EPA observes that this proposal is generally focused on
interpreting the text of section 401 itself, which does not directly
address state or tribal enforcement authority. Consistent with the
approach taken in the 2020 Rule, this rulemaking does not propose
interpretations of other enforcement-related sections of the CWA, such
as section 505. As such, the Agency is not inclined to propose
regulatory text to address state or tribal enforcement authority with
respect to section 401 or the CWA's citizen suit provision.
Nevertheless, EPA invites comment on whether it should do so in the
final rule and, if so, what regulatory language it should include.
The Agency views section 401 certification conditions that are
incorporated into the Federal license or permit as enforceable by
Federal licensing or permitting agencies. Section 401(d) provides that
certification conditions ``shall become a condition on any Federal
license or permit.'' Because section 401 conditions become conditions
of the Federal license or permit, the Federal agency may enforce any
such conditions in the same manner as any other conditions of its
license or permit. EPA expressed this interpretation in the 2020 Rule,
85 FR 42275-76, and a decade prior to that rulemaking. See, e.g., 2010
Handbook, at 32 (rescinded). EPA also observes that Federal agencies
have considerable latitude in deciding whether and when to enforce
requirements and conditions in their licenses and permits. See Heckler
v. Cheney, 470 U.S. 821, 831 (1985) (discussing why it is important for
agencies to retain enforcement discretion).
The Agency has consistently taken the view that nothing in section
401 precludes states from enforcing certification conditions when so
authorized under state law. In the 2020 Rule preamble, the Agency
concluded that ``[n]othing in this final [2020] rule prohibits States
from exercising their enforcement authority under enacted State laws.''
EPA did, however, consider this authority limited to ``where State
authority is not preempted by federal law.'' 85 FR 42276. A decade
prior to the 2020 Rule, EPA had already recognized that states enforce
certification conditions when authorized to do so under state law. See
e.g., 2010 Handbook, p. 32-33 (rescinded) (``Many states and tribes
assert they may enforce 401 certification conditions using their water
quality standards authority.''). EPA is not proposing to retain the
regulatory text currently located at Sec. 121.11(c) which expressly
states that Federal agencies ``shall be responsible'' for enforcing
certification conditions placed in the Federal license or permit. The
regulatory text at Sec. 121.11(c) introduces ambiguity into the
Agency's longstanding position that nothing in section 401 precludes
states from enforcing certification conditions when authorized under
state law, and has led to stakeholder confusion over whether the 2020
Rule prevents states and tribes from exercising their independent
enforcement authority and whether the 2020 Rule limited Federal agency
discretion regarding their enforcement of section 401 conditions in
their permits.
With respect to CWA citizen suits and their application to section
401 certifications and conditions, the Agency observes that there is
some case law discussing this issue. First, the Ninth Circuit Court of
Appeals has held that citizen suits may be brought to enforce the
requirement to obtain certification. Or. Natural Desert Ass'n v.
Dombeck, 172 F.3d 1092, 1095 (9th Cir. 1998). In Dombeck, the court
rejected the argument that section 505 authorizes only suits to enforce
certification conditions but not the requirement to obtain a
certification. The court pointed to the plain language of section 505,
which cross-references the entirety of section 401 (and not, for
example, only section 401(d), which concerns certification conditions).
Id. Second, a few Federal courts have held that certification
conditions can be enforced through CWA citizen suits. In Deschutes
River Alliance, a U.S. district court considered the issue at length
and ultimately held that CWA section 505 authorizes citizens to enforce
certification conditions. See Deschutes River Alliance v. Portland Gen.
Elec. Co., 249 F. Supp. 3d 1182, 1188 (D. Or. 2017). Relying in part on
Deschutes River Alliance, another U.S. district court also considered
the issue in depth and held that the CWA citizen suit provision
provides citizens a cause of action to sue to enforce the conditions of
a section 401 certification. Pub. Emps. for Envtl. Responsibility v.
Schroer, No. 3:18-CV-13-TAV-HBG, 2019 WL 11274596, at *8-10 (E.D. Tenn.
June 21, 2019). EPA is not aware of any Federal court that has
considered the issue and reached the opposite conclusion.
EPA notes that Deschutes River Alliance also held that certifying
states may enforce certification conditions via the CWA citizen suit
provision. 249 F. Supp. 3d at 1191-92. The court reasoned that section
505 is the only provision of the CWA that could bestow Federal
authority upon states to enforce certification conditions and, given
this, interpreting section 505 to preclude state enforcement of
certification conditions would run ``contrary to the CWA's purpose and
framework.'' Id. at 1191.
2. Certifying Authority Inspection Authority
As discussed above, section 401(a)(4) identifies one set of
circumstances where the certifying authority may review the manner in
which a facility or activity will operate once the facility or activity
has received certification. 33 U.S.C. 1341(a)(4). The certifying
authority's review is limited to determining if the post-construction
operation of the facility or activity will ensure that applicable
effluent limitations, other limitations, or other applicable water
quality requirements will not be violated. Section 401(a)(4) further
states that upon notification by the certifying authority that the
operation or activity will violate effluent limits, other limits or
other water quality requirements, the Federal agency, after public
hearing, may suspend the license or permit and the license or permit
shall remain suspended until there is reasonable assurance that the
facility or activity will not violate CWA sections 301, 302, 303, 306
or 307. Id.
The 1971 Rule clarified that the ability to ``review the manner in
which the facility or activity shall be operated or conducted'' meant
the right to inspect a facility or activity, and that the inspection is
limited to a situation where there was a construction license or permit
and a subsequent operating license or permit was not required. The 1971
Rule set forth the procedure regarding inspection and subsequent
inspection findings; however, these regulations only apply where EPA is
the certifying authority. See 40 CFR 121.26-121.28 (2019). The 2020
Rule interprets section 401(a)(4) to apply to all certifying
authorities. It also expands the ability to conduct inspections
pursuant to section 401(a)(4) to any certified project where the
license or permit and certification were issued prior to operation,
instead of only for projects where there was a construction license or
permit and a subsequent operating license or permit was not required.
40 CFR 121.11(a); 85 FR 42277. In pre-proposal input, several
stakeholders pressed the Agency to
[[Page 35365]]
allow for inspections before, during, and post-operation.
EPA thinks that the 2020 Rule incorrectly interprets the limited
applicability of section 401(a)(4) and does not think the statutory
language needs further clarification through rulemaking. Accordingly,
EPA is proposing to remove Sec. 121.11(a)-(b) in the current
regulation. On its face, section 401(a)(4) applies to a limited
circumstance where there is a Federal license or permit and
certification issued prior to operation of the facility or activity and
there is not a subsequent Federal operating license or permit necessary
for the facility or activity to operate. Under these limited
circumstances, the statute is clear that the licensee or permittee must
provide the certifying authority with the ability to ``review'' the
facility or activity to determine whether it will comply with effluent
limitations, other limitations, or other water quality requirements.
EPA interprets the term ``review'' found in section 401(a)(4) to be
broad enough to include inspection, but not necessarily limited to
inspection. It can arguably also include the right to review
preliminary monitoring reports or other such records that will assist
the certifying authority in determining whether the operation of the
facility or activity will comply with effluent limitations, other
limitations, or other water quality requirements. EPA is requesting
comment on whether it should articulate this interpretation of section
401(a)(4) in regulatory text.
EPA emphasizes that section 401(a)(4) does not necessarily limit
the certifying authority's ability to inspect facilities or activities
before or during operation in accordance with the certifying
authority's laws and regulations. The Agency is aware that states and
tribes may have their own authority to inspect a facility or activity
to determine compliance with conditions set forth in a section 401
certification. Similarly, section 401(a)(4) does not necessarily limit
a Federal agency's ability to inspect a facility during the life of the
permit or license pursuant to that Federal agency's laws and
regulations.
K. Neighboring Jurisdictions
Section 401(a)(2) establishes a process for ``neighboring
jurisdictions'' to participate in the Federal licensing or permitting
process in circumstances where EPA has determined that a discharge from
an activity subject to certification from another jurisdiction ``may
affect'' their water quality. EPA is revising the definition of the
term ``neighboring jurisdiction'' to clarify that it includes ``any
state, or tribe with treatment in a similar manner as a state for CWA
section 401 in its entirety or only for CWA section 401(a)(2), other
than the jurisdiction in which the discharge originates or will
originate.'' See proposed Sec. 121.1(i).\57\ The current definition of
``neighboring jurisdiction'' located at Sec. 121.1(i) inaccurately
suggests that a neighboring jurisdiction may only include a state or
TAS tribe that EPA determines may be affected by a discharge from
another jurisdiction. However, a neighboring jurisdiction does not
obtain its status as a neighboring jurisdiction based upon EPA's ``may
affect'' determination. It instead obtains such status by being a
jurisdiction other than the one where the discharge originates or will
originate. Ultimately, a Federal license or permit may not be issued
until the section 401(a)(2) process is complete.
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\57\ Tribes without TAS to administer section 401 or section
401(a)(2) are not neighboring jurisdictions for purposes of section
401(a)(2), as the statutory language limits the section 401(a)(2)
process specifically to states. However, EPA is proposing a process
for tribes to attain TAS specifically for administering a water
quality certification program under section 401 and for
administering only the section 401(a)(2) portion of a water quality
certification program. See proposed Sec. 121.11. Further, in the
absence of TAS for either section 401 or 401(a)(2), tribes may
participate in the public notice process for a section 401 water
quality certification.
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To initiate the section 401(a)(2) process, a Federal licensing or
permitting agency must ``immediately'' notify EPA when it receives a
license or permit application and a section 401 certification. 33
U.S.C. 1341(a)(2). EPA then has 30 days from the date it receives that
notification to determine whether a discharge from the activity may
affect the water quality of a neighboring jurisdiction and, if so, to
notify that neighboring jurisdiction, the licensing or permitting
agency, and the project proponent.\58\ After receiving notice from EPA,
the neighboring jurisdiction has 60 days to determine whether the
discharge ``will affect'' its water quality so as to violate its water
quality requirements, and if so, object in writing to the issuance of
the license or permit and request that the licensing or permitting
agency conduct a hearing on its objection. Id. When the licensing or
permitting agency conducts a hearing under section 401(a)(2), EPA must
submit to the licensing or permitting agency an evaluation and
recommendations regarding the objection of the neighboring
jurisdiction. In turn, section 401(a)(2) requires the licensing or
permitting agency to condition the relevant license or permit ``as may
be necessary to insure compliance with applicable water quality
requirements,'' based upon the recommendations of the neighboring
jurisdiction and EPA, and any additional evidence presented at the
hearing. If ``the imposition of conditions cannot insure such
compliance,'' the licensing or permitting agency shall not issue the
license or permit. Id.
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\58\ Fond du Lac Band of Lake Superior Chippewa v. EPA
determined that the statutory language of section 401(a)(2) does not
allow EPA to decline to make a determination whether or not a
discharge from the certified project may affect water quality in a
neighboring jurisdiction, and further found that EPA's ``may
affect'' determination is judicially reviewable under the APA. 519
F.Supp.3d 549, 565, 567 (D. Minn. 2021).
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Section 401(a)(2) limits EPA to considering whether a ``discharge''
from an activity may affect the water quality of a neighboring
jurisdiction, and likewise limits a neighboring jurisdiction to
determining whether a ``discharge'' from the activity will affect its
water quality so as to violate any water quality requirements.
Accordingly, EPA interprets the scope of section 401(a)(2) as limited
by the statutory language to considering potential effects only from a
``discharge'' from an activity.
Pre-proposal feedback relating to the process established in
section 401(a)(2) reflected the need for more specificity regarding the
roles of the Federal licensing or permitting agency, EPA, and the
neighboring jurisdiction in the process, and the steps within the
process. As a result, EPA is providing more detail and explanation in
this proposal on the roles of each of these participants in the section
401(a)(2) process and the steps involved. Additionally, to promote
consistency and efficiency, EPA is updating the 2020 Rule to provide
greater clarity regarding how the section 401(a)(2) process is
initiated and conducted.
1. Federal Licensing or Permitting Agency's Role in Initiating the
Section 401(a)(2) Process
CWA section 401(a)(2) requires that the Federal licensing or
permitting agency, upon receipt of a license or permit application and
the related section 401 water quality certification, immediately notify
the EPA Administrator of such certification and application. 33 U.S.C.
1341(a)(2). The 1971 Rule established some procedural requirements for
this process,\59\ which EPA updated in 2020. The 2020 Rule includes
additional specificity on the timing of Federal agency notification but
did not contain a standardized process for notification. 40 CFR
121.12(a). Instead, the Agency relies on Federal agencies to develop
notification
[[Page 35366]]
processes and procedures that work within their licensing or permitting
programs. 85 FR 42273.
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\59\ See 40 CFR part 121, subpart B (2019).
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The Agency is proposing to clarify what actions initiate the
section 401(a)(2) process and when Federal agencies must provide
notification to EPA under section 401(a)(2). Additionally, the Agency
is proposing procedures for Federal agencies to follow when providing
notification to EPA. Section 401(a)(2) provides that the Federal
licensing or permitting agency must ``immediately'' notify the EPA
Administrator upon receipt of an application and certification. 33
U.S.C. 1341(a)(2). Under the 1971 Rule, EPA's section 401(a)(2) review
was initiated upon receipt of either a certification or a waiver, which
was treated as a substitute for certification. See 40 CFR 121.11,
121.16 (2019). In the 2020 Rule, EPA's section 401(a)(2) review is
initiated upon receipt of a certification. 40 CFR 121.12(a); see 85 FR
42287. As discussed below, EPA is proposing to return to the approach
taken in the 1971 Rule at proposed Sec. 121.12.
Although the statutory text does not explicitly identify waiver of
certification as an action that initiates section 401(a)(2) review,\60\
the Agency proposes that it is appropriate to treat the waiver of
certification as a substitute for a grant of certification for purposes
of section 401(a)(2) review for several reasons. First, this treatment
is consistent with the purpose of section 401(a)(2). Section 401(a)(2)
provides neighboring jurisdictions with an opportunity to object to
federally licensed or permitted discharges originating in other
jurisdictions, where they determine the discharge will violate their
water quality requirements. A waiver does not indicate a certifying
authority's substantive opinion regarding the water quality
implications (for itself or another jurisdiction) of a proposed
activity or discharge. Rather, a certifying authority may waive
certification for a variety of reasons, including a lack of resources
to evaluate the project. In addition, a certifying authority may be
deemed to have waived certification for various reasons, including if
that certifying authority fails or refuses to act on a request for
certification before the end of the reasonable period of time. See
section V.F in this preamble for further discussion on waivers.
Ultimately a waiver of certification allows the Federal licensing or
permitting agency to issue its license or permit without receipt of a
water quality certification. As a result, a waived certification could
result in water quality impacts that might violate a neighboring
jurisdiction's water quality requirements. It seems reasonable to
afford a mechanism for EPA and a neighboring jurisdiction to evaluate
that possibility. Second, this approach is consistent with the Agency's
approach to section 401(a)(2) for over 50 years. See 40 CFR 121.16
(2019). Therefore, consistent with the approach taken in the 1971 Rule,
the Agency is proposing to restore the interpretation that waivers, in
addition to certifications, initiate the section 401(a)(2) process.
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\60\ See section 401(a)(2) (``Upon receipt of such application
and certification the licensing or permitting agency shall
immediately notify the Administrator of such application and
certification.'') (emphasis added).
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Additionally, the Agency is proposing to clarify the term
``application'' as applied to section 401(a)(2). Section 401(a)(2)
requires a Federal licensing or permitting agency to notify EPA upon
receipt of application and certification. 33 U.S.C. 1341(a)(2). Section
401 uses the term ``application'' throughout section 401(a); however,
when read in context, the term is used for both ``applications for
certification'' and ``applications for such Federal license or
permit.'' The Agency considers the ``request for certification'' to be
an ``application for certification.'' See section V.C in this preamble
for further discussion on a request for certification. In the context
of section 401(a)(2), the term ``application'' is used to refer to the
``application for such Federal license or permit.'' Id. As a result,
section 401(a)(2) is initiated upon the Federal licensing or permitting
agency's receipt of such Federal license or permit application and
either a section 401 certification or a waiver of certification.
However, the Agency is aware that there are instances where a Federal
license or permit application does not accompany a certification or
waiver (e.g., certification on general permits or Corps civil works
projects). To account for Federal agencies' different licensing or
permitting practices, the Agency is proposing to clarify that the term
``application'' in this regulation means the license or permit
application to a Federal agency, or if available, a draft license or
permit.\61\ See proposed Sec. 121.1(c).
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\61\ For this proposed rulemaking, EPA is not suggesting that
Corps civil works projects are exempt from section 401(a)(2)
processes, even though there are no ``applications'' or draft
licenses or permits. Rather, EPA expects the Corps to determine how
best to comply with all section 401 requirements. Compliance may
involve the Corps sending a project study in conjunction with a
certification or a waiver of certification.
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As noted, the Agency is further seeking to clarify when a Federal
agency must provide notification to EPA under section 401(a)(2) and is
proposing basic procedures for Federal agencies to follow when
providing such notification. As discussed above, section 401(a)(2)
provides that the Federal licensing or permitting agency must
``immediately'' notify the EPA Administrator upon receipt of an
application for a Federal license or permit and certification. See 33
U.S.C. 1341(a)(2). EPA seeks to clarify that a Federal agency is only
considered to be in receipt of an application for a license or permit
and certification within the meaning of section 401(a)(2) when such
agency has received both an application for a license or a permit, as
discussed above, and has either received a corresponding certification
or a waiver has occurred.\62\ It is typical for Federal agencies to
receive applications for licenses or permits in advance of receipt of
certification or waiver. In such circumstances, it would be premature
for the Federal agency to provide EPA with notification under section
401(a)(2) until it has also received the certification or waiver has
occurred and the statute accordingly only requires notification to EPA
when the certifying agency is in possession of both.\63\
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\62\ Although this statutory language is unambiguous, EPA is
further discussing when receipt occurs due to questions and
conflicting practices among Federal licensing and permitting
agencies.
\63\ It is necessary that certification or waiver occur for EPA
to make a determination as to whether a discharge from the activity
``may affect'' the water quality of a neighboring jurisdiction under
section 401(a)(2), as EPA only makes such a determination where
certification or waiver has occurred, and considers any conditions
included in a certification in making this determination.
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Furthermore, to aid in clarity and implementation, the Agency is
proposing to retain the 2020 Rule interpretation of ``immediately'' to
mean within five days of the Federal agency's receipt of the
application for a Federal license or permit and either receipt of
certification or waiver. Under the 2020 Rule, the Agency also
interprets the term ``immediately'' to mean within five days of the
Federal agency receiving notice of application and certification to
encourage clear, consistent timing of the notification to EPA. 40 CFR
121.12(a); see 85 FR 42273. The Agency is not aware of any practical
challenges or issues posed by this timeframe. The Federal agency needs
some amount of time to process receipt of the permit or license
application and certification or waiver from the project proponent or
certifying authority, review the received materials, which might be
substantial, and then transmit notice to the appropriate EPA regional
office. EPA considers five days a prompt yet
[[Page 35367]]
reasonable amount of time to complete this process. EPA is soliciting
comment on whether it should interpret ``immediately'' in this context
to mean a different period of time than five days, and whether five
days provides Federal agencies with sufficient time to provide notice
to EPA or if additional time is required.
Although the text of section 401(a)(2) requires a Federal agency to
notify EPA upon receipt of an application and certification, it does
not define the contents of such notification. 33 U.S.C. 1341(a)(2). The
1971 Rule and 2020 Rule provided some direction on information that
could be submitted to EPA as part of the section 401(a)(2) process, but
neither regulation defined the contents of the section 401(a)(2)
notification. See 40 CFR 121.12(b); 40 CFR 121.13 (2019).
The 1971 Rule provided that upon receipt of application for a
license or permit with an accompanying certification, the Federal
agency shall forward copies of the application and certification to the
Regional Administrator. 40 CFR 121.11 (2019). It further stated that
only those portions of the application which relate to water quality
shall be forwarded to the Regional Administrator and allows for the
Regional Administrator to ask for supplemental information if the
documents forwarded do not contain sufficient information to make the
determination provided for in Sec. 121.13. See 40 CFR 121.12 and
121.13 (2019). In the preamble to the 2020 Rule, EPA said it expects
Federal agencies to develop notification processes and procedures but
noted that the Administrator could request copies of the certification
and application. 85 FR 42273. During implementation of the 2020 Rule,
some but not all agencies have developed their own procedures, and
these procedures have varied between agencies and across the country.
To provide consistency and to streamline the notification process,
EPA is proposing to add regulatory text defining the minimum level of
information that must be included in the notification to EPA. The
Agency is proposing that the notification be in writing and contain a
general description of the proposed project, including but not limited
to: permit or license identifier, project location information (e.g.,
latitude and longitude), a project summary including the nature of any
discharge and size or scope of activity, and whether the Federal agency
is aware of any neighboring jurisdiction providing comment on the
project. If the Federal agency is aware that a neighboring jurisdiction
provided comment on the project, the notification shall include a copy
of those comments. Additionally, the notification shall include a copy
of the certification or notice of waiver, and the application, as
defined at proposed Sec. 121.1(c). If supplemental information is
needed to make a determination pursuant to section 401(a)(2), the
Regional Administrator may ask for it in writing with a timeframe for a
response, and the Federal agency shall obtain that information from the
project proponent and forward the additional information to the
Regional Administrator within the specified timeframe. If supplemental
information is not provided in a timely manner, EPA may consider that
lack of information as a factor in its ``may affect'' determination.
The Agency may also develop agreements with Federal agencies to refine
the notification process and the provision of supplemental information.
The Agency is soliciting comment on the proposed aspects of the
notification process, including the timing and the contents of the
Federal agency notification to EPA.
2. EPA's Role Under Section 401(a)(2)
Section 401(a)(2) states that whenever a discharge ``may affect, as
determined by the Administrator, the quality of the waters of any other
State,'' the Administrator must notify the other neighboring
jurisdiction, Federal agency, and the project proponent of their
determination within thirty days of the date of notice of the
application. 33 U.S.C. 1341(a)(2). Under the 1971 Rule, the Regional
Administrator was required to review the Federal license or permit
application, the certification, and any supplemental information
provided to EPA, and, if the Regional Administrator determined that
there was ``reason to believe that a discharge may affect the quality
of the waters of any State or States other than the State in which the
discharge originates,'' the Regional Administrator would notify the
affected jurisdictions within thirty days of receipt of the application
materials and certification. See 40 CFR 121.13 (2019).
Similarly, the 2020 Rule acknowledges EPA's responsibility to
notify a neighboring jurisdiction whenever it determined that a
discharge from the certified activity may affect the water quality of
the neighboring jurisdiction. 40 CFR 121.12(b), 85 FR 42274. However,
the 2020 Rule asserted that it was within the Agency's discretion
whether to make a ``may affect'' determination in the first place, and
that EPA was, therefore, not required to make such a determination. 85
FR 42273. Additionally, the 2020 Rule does not clearly state in either
regulatory text or the preamble whether there are specific factors that
the Administrator must consider in making a ``may affect''
determination and whether any other interested party can be involved
when EPA is making a ``may affect'' determination. Id. During the pre-
proposal outreach, stakeholders raised concerns that EPA had not
clearly identified what factors it intended to use in determining
whether a discharge ``may affect'' the water quality of a neighboring
jurisdiction. Stakeholders also objected to EPA asserting sole
discretion over this ``may affect'' determination without obtaining
input from the neighboring jurisdiction or other stakeholders.
To date, only one Federal district court has addressed EPA's
obligation to make a determination pursuant to section 401(a)(2). In
Fond du Lac, the court addressed two issues concerning section
401(a)(2): (1) whether EPA is required to make a ``may affect''
determination and (2) whether EPA's ``may affect'' determination is
judicially reviewable. 519 F.Supp.3d 549.The court concluded that EPA
is required to determine whether the discharge may affect the quality
of a neighboring jurisdiction's waters. In coming to this conclusion,
the court examined the statutory text and found that it requires EPA to
make ``a discrete factual determination . . . within a specific
timeframe . . . based on an application and certification . . . .'' Id.
at 564. The court further concluded that Federal courts have the
jurisdiction to review EPA's ``may affect'' determination. The court
did not opine on the specific meaning of ``may affect'' means or
factors that EPA should consider in making a ``may affect''
determination.
EPA agrees with the Fond du Lac court that EPA must determine
whether a discharge ``may affect'' a neighboring jurisdiction once it
receives notification of the application and certification or waiver,
and EPA is proposing to revise the regulation accordingly. When EPA is
the Federal licensing or permitting agency (e.g., EPA-issued NPDES
permits), EPA intends to include such ``may affect'' determination in
the administrative record for the permit action. EPA is further
proposing that, in making a ``may affect'' determination, EPA has the
discretion to look at a variety of factors depending on the type of
license or permit and discharge. Factors that EPA could consider in
making a ``may affect'' determination include, but are not limited to,
the type of project and discharge covered in the license or permit, the
proximity of the project and discharge to other
[[Page 35368]]
jurisdictions, certification and other conditions already contained in
the draft license/permit, and the neighboring jurisdiction's water
quality requirements. Given the range of Federal licenses or permits
that are covered by CWA section 401(a)(2) and EPA's discretion to look
at various factors, EPA is not proposing to identify specific factors
EPA must analyze in making a ``may affect'' determination. Indeed, as
each ``may affect'' determination is likely to be fact-dependent and
based on situation-specific circumstances, EPA is uncertain that
providing a required list of factors is possible. However, in the
interest of transparency, EPA is asking for comment on whether such a
list of specific factors that EPA must consider in making a ``may
affect'' determination should be set forth in regulation and, if so,
what factors should be included.
EPA is further clarifying that, once it receives notice from a
Federal agency initiating its obligation to make a ``may affect''
determination, it is within EPA's sole discretion to examine the facts
and determine whether the discharge ``may affect'' the quality of a
neighboring jurisdiction's waters. Section 401(a)(2) provides that
``[w]henever such a discharge may affect, as determined by the
Administrator. . . .'' 33 U.S.C. 1341(a)(2) (emphasis added). EPA
interprets this language as providing the Agency with sole discretion
in making a ``may affect'' determination. Accordingly, EPA is not
required to engage with stakeholders or seek their input in making this
determination. If an interested party does not agree with EPA's
determination, that interested party may have recourse under the
Administrative Procedure Act as discussed in Fond du Lac. However, in
making its ``may affect'' determination, the Agency does intend to
consider the views of other jurisdictions if provided in a timely
manner. As discussed above, the Agency is proposing to define the
contents of a Federal agency's notification to EPA to include an
indication of whether any neighboring jurisdictions have expressed
water quality concerns or provided such comment on the project.\64\
Other factors informing the Agency's ``may affect'' determination
evaluation are discussed above, including the nature of the neighboring
jurisdiction's water quality requirements.
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\64\ There are other opportunities for stakeholders to provide
input into the certification and licensing or permitting process,
including the public notice and comment processes on the
certification and the license or permit.
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After receiving notification from the Federal licensing or
permitting agency, EPA has 30 days to complete its ``may affect''
determination evaluation. 33 U.S.C. 1341(a)(2). If EPA determines that
the discharge may affect a neighboring jurisdiction's water quality,
EPA must notify the neighboring jurisdiction, the Federal licensing or
permitting agency, and the project proponent. Id. EPA is proposing to
retain regulatory text similar to 40 CFR 121.12(c) that clarifies which
stakeholders EPA must notify upon making a ``may affect''
determination. The Agency is also proposing to define the contents of
such notification similar to the 2020 Rule. The 1971 Rule did not
define the contents of a ``may affect'' notification from EPA to a
neighboring jurisdiction, Federal agency, and project proponent.
However, the 1971 Rule provided that EPA must send the neighboring
jurisdiction a copy of the application and certification it received to
initiate the section 401(a)(2) process. 40 CFR 121.14 (2019). The 2020
Rule defines the contents of EPA's notification. 40 CFR 121.12(c)(1).
EPA is proposing to revise the provision from the 2020 Rule and clarify
that its notification shall be in writing and shall include a statement
that the Agency has determined that the discharge may affect the
neighboring jurisdiction's water quality, as well as a description of
the next steps in the section 401(a)(2) process, a copy of the
certification or waiver, and a copy of the license or permit
application. See proposed Sec. 121.13. The proposed regulation also
retains similar text as the 2020 Rule that, once EPA makes a ``may
affect'' determination, a Federal license or permit may not be issued
pending the conclusion of the section 401(a)(2) process, as described
in further detail below. Accordingly, the Agency is proposing to remove
the regulatory provision located at Sec. 121.9(e) which provides that
a Federal agency may issue a license or permit upon issuance of a
written notice of waiver. As discussed above, waivers also trigger the
section 401(a)(2) process and EPA may make a ``may affect''
determination based upon a waiver of certification. Consistent with the
proposed language at Sec. 121.13(d), a Federal agency may not issue a
Federal license or permit until the section 401(a)(2) process
concludes.
Upon completion of its ``may affect'' determination evaluation, if
EPA does not find that a discharge from the activity may affect the
water quality of a neighboring jurisdiction, then EPA is not required
to provide notification of its determination. See 33 U.S.C. 1341(a)(2).
If a Federal licensing or permitting agency does not receive
notification from EPA that the discharge may affect a neighboring
jurisdiction's water quality within 30 days after proper notification,
then the Federal agency may proceed with processing the license or
permit.
3. Neighboring Jurisdiction's Role Under Section 401(a)(2)
CWA section 401(a)(2) states that if, within sixty days after
receipt of EPA's notification, such other State determines that such
discharge will affect the quality of its waters so as to violate any
water quality requirements in such State, and within such 60 day period
notifies the Administrator and the licensing or permitting agency in
writing of its objection to the issuance of such license or permit and
requests a public hearing on such objection, the licensing or
permitting agency shall hold such a hearing. 33 U.S.C. 1341(a)(2). The
1971 Rule did not describe the contents or form that such an objection
notification must take. However, the 2020 Rule clarifies that the
objection notification must identify the receiving waters that are
determined to be affected and identify the specific water quality
requirements that will be violated. 40 CFR 121.12(c)(2); 85 FR 42274.
In this rule, EPA is proposing to revise the specific requirements
for what a neighboring jurisdiction is required to include in an
objection notification sent pursuant to section 401(a)(2). Initially,
as required by the statute, the neighboring jurisdiction must act
within 60 days of receipt of EPA's notification, and must provide its
objection and request for public hearing in writing to EPA and the
licensing and permitting authority. EPA is also proposing that the
objection notification be sent to the certifying authority. Further,
EPA is proposing that the neighboring jurisdiction include an
explanation of the reasons supporting its determination that the
discharge will violate its water quality requirements, including but
not limited to identifying any water quality requirements that will be
violated. This will allow EPA and the Federal licensing or permitting
agency to understand the basis for the objection. EPA is not proposing
to retain the regulatory text requiring the neighboring jurisdiction to
identify the receiving waters that will be affected by the discharge.
However, EPA anticipates this information will likely be included in
the neighboring jurisdiction's explanation of the reasons supporting
its determination that the discharge will violate its water quality
requirements. EPA is not proposing to require the neighboring
jurisdiction to identify a
[[Page 35369]]
license or permit condition that it thinks would resolve the objection;
however, EPA encourages neighboring jurisdictions to offer such a
condition or conditions and is requesting comment on whether this
element should be required by regulation.
4. Objection and Public Hearing Process Under Section 401(a)(2)
As discussed above, a neighboring jurisdiction must request a
public hearing from the Federal licensing or permitting agency as part
of its objection. CWA section 401(a)(2) does not provide for a specific
process for the section 401(a)(2) public hearing. It merely states
that, if a neighboring jurisdiction objects to a Federal license or
permit and requests a public hearing within the 60-day timeframe, the
Federal licensing or permitting agency must hold a hearing. 33 U.S.C.
1341(a)(2). The statute further provides that the EPA Administrator
must submit an evaluation and recommendations regarding the objection
at the hearing. Id. In addition, section 401(a)(2) states that
additional evidence may be presented at the hearing. After the public
hearing, the Federal licensing or permitting agency must consider the
recommendations of the neighboring jurisdiction and EPA Administrator
as well as any additional evidence presented at the hearing and, based
on that information, must condition the license or permit as may be
necessary to ensure compliance with applicable water quality
requirements. If additional conditions cannot ensure compliance with
applicable water quality requirements, the license or permit cannot be
issued. Id. Notably, the statute is silent as to whether public notice
of the public hearing is required; the nature of, and specific
procedures for, the public hearing; the need for a court reporter or
transcript; whether the Federal licensing or permitting agency's
decision is appealable; and other such matters.
The 1971 Rule provided that, in cases where the Federal licensing
or permitting agency held a public hearing on the objection raised by a
neighboring jurisdiction, the licensing or permitting agency was
required to forward notice of such objection to the Regional
Administrator no later than 30 days prior to the hearing. 40 CFR 121.15
(2019). At the hearing, the Regional Administrator was required to
submit an evaluation and ``recommendations as to whether and under what
conditions the license or permit should be issued.'' Id. EPA retained
these requirements in the 2020 Rule. 40 CFR 121.12(c)(3); 85 FR 42274.
The Agency is proposing to add transparency to the section
401(a)(2) process by requiring the Federal agency to provide for a
minimum of a 30-day public notice of the hearing. This will allow for
notice to all interested parties, including the neighboring
jurisdiction and EPA, and provide adequate time for such parties to
determine whether they have any interest in attending the public
hearing. EPA is not defining the type of public hearing that the
Federal agency must hold since many Federal agencies have their own
regulations regarding public hearings on permits and licenses; however,
EPA recommends that the public hearing would be one at which the
Federal agency accepts comments and additional evidence on the
objection. EPA defers to the Federal agency to decide whether the
public hearing would be conducted in-person and/or remotely through
telephone, online, or other virtual platforms depending on the
circumstances and the Federal agency's public hearing regulations.
As discussed, section 401(a)(2) provides that the EPA Administrator
shall submit an evaluation and recommendations on the objection raised
by the neighboring jurisdiction at the hearing conducted by the Federal
licensing or permitting agency. The statutory text does not elaborate
on how the Administrator is to develop its evaluation and
recommendations or what specific elements it must include. Accordingly,
the statute provides EPA with considerable discretion in developing its
evaluation and recommendations.
EPA interprets its role in providing the evaluation and
recommendations on the neighboring jurisdiction's objection as that of
an objective and neutral evaluator providing recommendations to the
licensing or permitting Federal agency based upon its expert, technical
analysis of the record before it. EPA intends to conduct its evaluation
and make any recommendations based on the information before it, giving
equal consideration to the information and views--if provided--by
interested parties, including the objecting neighboring jurisdiction,
project proponent, and certifying authority. Consistent with this
approach, as a general matter EPA does not intend to invite comment and
input from, or engage with, interested parties when developing its
evaluation and recommendations on the objection. However, EPA may,
where it deems it appropriate, seek additional information from a
neighboring jurisdiction regarding its objection to be sure EPA is able
to develop an informed and well-supported evaluation and accompanying
recommendations. This approach to developing its evaluation and
recommendations is consistent with the hearing process established by
section 401(a)(2), which recognizes a role for the neighboring
jurisdiction independent of the Agency and allows for presentation of
evidence at the hearing by any interested stakeholder, including the
neighboring jurisdiction. If a stakeholder agrees or disagrees with
EPA's evaluation and recommendations presented at the hearing, such
stakeholder may have an opportunity to provide additional information
and comment directly to the Federal agency for its consideration.
After conducting the public hearing, pursuant to CWA section
401(a)(2), the Federal licensing or permitting agency must consider the
recommendations of the neighboring jurisdiction and EPA, as well as any
additional evidence presented at the hearing, as it determines whether
additional permit or license conditions are necessary to ensure
compliance with applicable water quality requirements. 33 U.S.C.
1341(a)(2). The Act does not accord special status to EPA's evaluation
and recommendations compared with the neighboring jurisdiction's input
or other evidence received at the hearing; rather, the section appears
to contemplate that the Federal agency will consider all of the
information presented in making its decision. If the Federal licensing
or permitting agency determines that additional conditions may be
necessary to ensure compliance with the neighboring jurisdiction's
water quality requirements, the Federal licensing or permitting agency
must include those conditions in the Federal license or permit. In
addition, if the Federal licensing or permitting agency cannot include
conditions that will ensure compliance with applicable water quality
requirements, the Federal agency cannot issue the license or permit.
EPA is proposing to specifically incorporate these statutory
requirements in regulatory language.
EPA is not, however, proposing to establish a deadline by which the
Federal licensing or permitting agency must make a determination after
the public hearing. EPA is requesting comment on whether such a
deadline should be established.
CWA section 401(a)(2) states that if the neighboring jurisdiction
notifies EPA and the licensing or permitting agency ``in writing of its
objection to the issuance of [the] license or permit and requests a
public hearing on such objection, the licensing or permitting agency
shall hold such a hearing.'' 33
[[Page 35370]]
U.S.C. 1341(a)(2). For a hearing to be required under section
401(a)(2), there must be (1) a written objection from the neighboring
jurisdiction and (2) a request for a public hearing on the objection.
Id. EPA is proposing that if one of these elements is not present, the
Federal agency is not required to hold a hearing. If a neighboring
jurisdiction can resolve its concerns with the Federal licensing or
permitting agency before a public hearing is held, then under this
proposed approach, the neighboring jurisdiction could withdraw its
objection and, as a result, a public hearing would not be required. EPA
does not assume that a withdrawal of a written objection would
eliminate the need for the Federal licensing or permitting agency to
comply with its own public notice requirements if resolution of the
objection results in a change to the permit or license. EPA is
requesting comment on whether a neighboring jurisdiction could withdraw
its objection before the hearing is held and, thus, eliminate the
requirement to hold a public hearing. EPA is also requesting comment on
whether it should develop any regulatory text to clarify this aspect of
the section 401(a)(2) process.
L. Treatment in a Similar Manner as a State Under Section 401
This proposed rulemaking would add provisions enabling tribes to
obtain treatment in a similar manner as a state (TAS) solely for
section 401, as well as provisions on how tribes can obtain TAS for the
limited purpose of participating as a neighboring jurisdiction under
section 401(a)(2). These proposed provisions provide more opportunities
and clarity for tribes interested in participating in the section 401
certification process. Although the CWA clearly allows tribes to obtain
TAS for section 401, current regulations and practice treat TAS for
section 401 as an adjunct to TAS for the CWA section 303(c) program for
water quality standards.
Section 401 specifies that certification under section 401(a)(1)
shall be made by the state in which the discharge originates or will
originate, or if appropriate, the interstate water pollution control
agency with jurisdiction over the waters of the United States where the
discharge originates or will originate. 33 U.S.C. 1341(a)(1). Likewise,
under section 401(a)(2) the Administrator considers whether a discharge
from a project may affect ``the quality of the waters of any other
state'' in initiating the neighboring jurisdiction process. Id. at
1341(a)(2). Prior Agency guidance and the 2020 Rule preamble provided
that only tribes with TAS for section 401 may act as certifying
authorities under section 401(a)(1) and may act as neighboring
jurisdictions under section 401(a)(2). 85 FR 42270, 42274; 2010
Handbook, at 6 (rescinded). The 1971 Rule did not address tribes with
TAS; the TAS provisions in the CWA were not introduced until the 1987
CWA Amendments.
Under section 518 of the CWA, EPA may treat federally-recognized
Indian tribes in a similar manner as a state for purposes of
administering most CWA programs over Federal Indian reservations. 33
U.S.C. 1377. Under section 518 and EPA's implementing regulations, an
Indian tribe is eligible for TAS to administer CWA regulatory programs,
including section 401, if it can demonstrate that (1) it is federally-
recognized and exercises governmental authority over a Federal Indian
reservation; \65\ (2) it has a governing body carrying out substantial
governmental duties and power; (3) it has the appropriate authority to
perform the functions to administer the program; and (4) it is
reasonably expected to be capable of carrying out the functions of the
program it applied to administer. See 33 U.S.C. 1377(e), (h); see also,
e.g., 40 CFR 131.8.
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\65\ ``Federal Indian reservation'' means all land within the
limits of any Indian reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any
patent, and including rights-of-way running through the reservation.
33 U.S.C. 1377(h)(1).
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While certain CWA programs have TAS implementing regulations,\66\
there are currently no such regulations tailored solely for section
401. In the absence of TAS provisions tailored specifically for section
401, tribes have received TAS for section 401 when eligible for TAS to
administer the section 303(c) program for water quality standards. 40
CFR 131.4(c) (``Where EPA determines that a Tribe is eligible to the
same extent as a State for purposes of water quality standards, the
Tribe likewise is eligible to the same extent as a State for purposes
of certifications conducted under Clean Water Act section 401.''). To
date, 78 federally-recognized tribes (out of 574) have received TAS for
section 401 concurrently with obtaining TAS for section 303(c).\67\
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\66\ For example, there are TAS regulatory provisions for the
CWA section 303(c) water quality standards (WQS) program, located at
40 CFR 131.8, and for the CWA section 303(d) impaired water listing
and total maximum daily load program, located at 40 CFR 130.16.
\67\ See https://www.epa.gov/tribal/tribes-approved-treatment-state-tas.
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Upon receiving TAS for section 401, tribes have two roles. First,
tribes that receive section 401 TAS are responsible for acting as a
certifying authority for projects that may result in a discharge into
waters of the United States on their Indian reservations. As certifying
authorities, tribes with TAS may grant, grant with conditions, deny, or
waive certification based on whether a federally licensed or permitted
project will comply with sections 301, 302, 303, 306, and 307 of the
CWA and any other appropriate requirements of tribal law. See 33 U.S.C.
1341(a)(1) and (d). Second, tribes that receive section 401 TAS are
accorded the status of ``neighboring jurisdiction'' for purposes of
section 401(a)(2). If EPA makes a ``may affect'' determination with
respect to that neighboring jurisdiction, the neighboring jurisdiction,
including tribes with TAS for section 401, may object to the Federal
license or permit if they determine that the discharge ``will violate''
their water quality requirements and request a public hearing from the
Federal licensing or permitting agency. 33 U.S.C. 1341(a)(2).
EPA is proposing a section 401-specific set of requirements and
procedures for tribes seeking TAS for purposes of making sections
401(a)(1) and 401(d) certification decisions and for exercising their
statutory rights as a ``neighboring jurisdiction'' under section
401(a)(2). These proposed procedures do not eliminate or modify the
section 401 procedures already found in part 131. Instead, they provide
an alternate path for tribes wishing to obtain TAS status only for
section 401 and not also for section 303(c).
1. Obtaining TAS for Section 401
Proposed Sec. 121.11 includes the criteria an applicant tribe
would be required to meet to be treated in a similar manner as states,
the information the tribe would be required to provide in its
application to EPA, and the procedure EPA would use to review the
tribal application. This section is intended to ensure that tribes
treated in a similar manner as states for the purposes of the section
401 water quality certification program are qualified, consistent with
CWA requirements, to implement a water quality certification program.
The procedures are meant to provide more opportunities for tribes to
engage fully in the program and are not intended to act as a barrier to
tribal assumption of the section 401 program. The proposed procedures
are modeled after the TAS regulatory provisions for the CWA section
303(c) WQS program, located at 40 CFR 131.8, and the TAS provisions
[[Page 35371]]
for the CWA section 303(d) impaired water listing and total maximum
daily load program, located at 40 CFR 130.16. The WQS TAS regulations,
developed in the early 1990s, have acted as a model for other programs
including the section 303(d) regulations. See 81 FR 65905.
Additionally, as discussed above, EPA's TAS regulations allow tribes to
simultaneously obtain TAS for sections 303(c) and 401 and have been
used by 78 tribes to date. As a result, the Agency thinks the part 131
and part 130 TAS regulations provide an appropriate model for this
proposal.
Consistent with the requirements provided in CWA section 518, EPA
proposes that four criteria must be met for tribes to obtain TAS for
section 401. First, the tribe should be federally recognized by the
U.S. Department of the Interior and meet the definitions in proposed
Sec. 121.1(f) and (g). Second, the tribe should have a governing body
that carries out ``substantial governmental duties and powers'' over a
defined area. Third, the tribe should have appropriate authority to
regulate and manage water resources within the borders of the tribe's
reservation. Lastly, the tribe should be reasonably expected, in the
Regional Administrator's judgment, to be capable of administering a
section 401 water quality certification program.
The tribe may satisfy the first criterion by stating that it is
included on the list of federally recognized tribes that is published
periodically by the U.S. Department of the Interior. Alternatively, the
tribe may submit other appropriate documentation (e.g., if the tribe is
not yet included on the U.S. Department of the Interior list but is
federally recognized).
To meet the second criterion, the tribe would show that it conducts
``substantial governmental duties and powers,'' which the Agency views
as performing governmental functions to promote the health, safety, and
welfare of the affected population within a defined geographical area.
See 54 FR 39101; 81 FR 65906. This requires a descriptive statement
that should (1) describe the form of tribal government, (2) describe
the types of essential governmental functions currently performed by
the tribal governing body, including but not limited to, the exercise
of the power of eminent domain, taxation, and police power, and (3)
identify the sources of authorities to carry out these functions.
To establish the third criterion that the tribe has the authority
to manage the water resources within the borders of the tribe's
reservation, the tribe would submit a descriptive statement comprised
of two components. First, the statement should include a map or legal
description of the area over which the tribe has authority to regulate
surface water quality. Second, there should be a statement signed by
the tribe's legal counsel or equivalent explaining the legal basis for
the tribe's regulatory authority. EPA notes that section 518 of the CWA
includes a delegation of authority from Congress to eligible Indian
tribes to regulate the quality of waters of their reservations under
the CWA. See 81 FR 30183 (May 16, 2016). Absent rare circumstances that
may affect a tribe's ability to effectuate the delegation of authority,
tribes may rely on the congressional delegation of authority included
in section 518 of the statute as the source of authority to administer
a section 401 water quality certification program. This is identical to
the manner in which tribes have been demonstrating authority for
eligibility to administer 401 certifications under existing TAS
regulations, the only change being that under the new proposed
regulations, tribes would be able to seek TAS eligibility for section
401 only. Similarly, as with tribes already administering section 401
under prior TAS approvals, the authority to issue certifications
exercised by a tribe authorized under the new proposed regulation will,
by virtue of the congressional delegation, apply throughout the
reservation area covered by the TAS approval, irrespective of land
ownership or the tribal membership status of the Federal license
applicant. See, e.g., 81 FR 30190. Therefore, grants or waivers of
certification by an authorized tribe, as well as any conditions
included in a certification or denials of certification by an
authorized tribe, would apply to any application for a Federal license
throughout the relevant reservation without any separate need to
demonstrate inherent tribal jurisdiction.
A tribe may satisfy the fourth criterion regarding its capability
by either (1) providing a description of the tribe's technical and
management skills to administer a water quality certification program
or (2) providing a plan that proposes how the tribe will acquire such
skills. Additionally, when considering tribal capability, EPA would
also consider whether the tribe can demonstrate the existence of
institutions that exercise executive, legislative, and judicial
functions, and whether the tribe has a history of successful managerial
performance of public health or environmental programs.
To provide direction on how a tribe may meet the criteria described
above, EPA is also proposing to describe the contents of an application
for TAS for section 401. See proposed 40 CFR 121.11(b). These contents
include a statement that the tribe is recognized by the Secretary of
the Interior, a descriptive statement that demonstrates the tribal
government carries out substantial duties and powers, a descriptive
statement of the tribe's authority to regulate water quality, and a
narrative statement that describes the tribe's capability to administer
a section 401 water quality certification program. Consistent with
existing TAS regulations for other programs, the proposed rulemaking
also provides that tribal applicants include additional documentation
that may be required by EPA to support the tribal application. Each TAS
application will present its own set of legal and factual
circumstances, and EPA anticipates that in some cases it may be
necessary to request additional information when reviewing a tribe's
application. Such requests would, for instance, generally relate to
ensuring that the application contains sufficient complete information
to address the required statutory and regulatory TAS criteria. This
could include, for instance, information relating to a unique issue
pertaining to the applicant tribe or its reservation or an issue
identified during the comment process described below. Consistent with
longstanding practice, the Agency would work with tribes in an
appropriately streamlined manner to ensure that their TAS applications
contain all necessary information to address applicable statutory and
regulatory criteria. If a tribe has previously qualified for TAS under
another EPA program, the tribe is only required to submit information
that was not previously submitted as part of a prior TAS application.
EPA is also proposing to describe EPA's procedures to review and
process an application for section 401 TAS. See proposed 40 CFR
121.11(c). Under this proposal, once EPA receives a complete tribal
application, it will promptly notify the tribe of receipt and process
the application in a timely manner. Within 30 days after receipt of the
tribe's complete application for section 401 TAS, EPA shall provide
notice to appropriate governmental entities \68\ of the application,
including information on the substance of and basis for the tribe's
assertion of authority to regulate reservation water quality.
Appropriate
[[Page 35372]]
governmental entities will be given 30 days to provide comment on the
tribe's assertion of authority. Consistent with prior practice
regarding such notice in connection with TAS applications for other
programs, EPA also intends to provide sufficiently broad notice (e.g.,
through local newspapers, electronic media, or other appropriate media)
to inform other potentially interested entities of the applicant
tribe's complete application and of the opportunity to provide relevant
information regarding the tribe's assertion of authority. If the
tribe's assertion of authority is challenged, EPA will determine
whether the tribe has adequately demonstrated authority to regulate
water quality on the reservation after considering all relevant
comments received.
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\68\ EPA defines the term ``appropriate governmental entities''
as ``States, tribes, and other Federal entities located contiguous
to the reservation of the tribe which is applying for treatment as a
State.'' 56 FR 64876, 64884 (December 12, 1991).
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However, if a tribe previously qualified for TAS for another
program that also required a tribe to demonstrate authority to regulate
reservation water quality (i.e., CWA section 303(c) program, CWA
section 303(d) program, CWA section 402 program, or CWA section 404
program) and EPA provided a notice and comment opportunity, the Agency
would not require notice on the tribe's assertion of authority to
appropriate governmental entities in the section 401 TAS application
unless there were different jurisdictional issues or significant new
factual or legal information relevant to jurisdiction. EPA thinks this
approach could help streamline the process and avoid a potentially
duplicative notice process. The Agency is proposing to apply this
approach prospectively only, i.e., where the tribe obtains TAS for the
CWA section 303(c), 402, or 404 programs after the effective date of
this rule. In other words, if a tribe first gains TAS for another CWA
regulatory program after this rule is finalized, and subsequently seeks
TAS under this rule, additional notice and comment would not be
required as part of the section 401 TAS application unless different
jurisdictional issues or significant new factual or legal information
relevant to jurisdiction are presented in the 401 application. If the
Regional Administrator determines that a tribe's application meets the
requirements proposed in Sec. 121.11(b), the Regional Administrator
would promptly notify the tribe in writing. A decision by the Regional
Administrator that a tribe does not meet the requirements proposed in
Sec. 121.11(b) would not preclude the tribe from resubmitting the
application at a future date. If the Regional Administrator determines
that a tribal application is deficient or incomplete, EPA will identify
such deficiencies and gaps so the tribe can make changes as appropriate
and necessary.
Promulgating a regulation expressly providing a process and
requirements for section 401 TAS in the absence of 303(c) TAS is
consistent with section 518 and would provide clarity and increased
opportunities for interested tribes to participate in section 401.
Additionally, developing regulations on section 401 TAS as a standalone
process for tribes seeking this authority who are not concurrently
applying for section 303(c) TAS may encourage more tribes to seek TAS
for section 401. Decoupling section 401 TAS from section 303(c)
recognizes that section 401 and section 303 administration are related,
but distinct functions and is responsive to tribal stakeholders who
have expressed an interest in participating in the section 401
certification process. EPA is requesting comment on this more targeted
proposed approach to obtaining TAS for section 401.
2. Obtaining TAS for Section 401(a)(2)
If a tribe receives TAS for section 401, it is treated in a manner
similar to a state and considered an ``authorized tribe'' for purposes
of exercising its statutory authority under section 401. Generally, the
Federal statutory and the proposed regulatory requirements for state
water quality certification would apply to authorized tribes, including
acting as a certifying authority and neighboring jurisdiction, as
appropriate. However, EPA is also proposing regulatory language that
would allow a tribe to apply for TAS for only the limited purpose of
being a neighboring jurisdiction under section 401(a)(2). As noted
above, prior Agency guidance and the 2020 Rule preamble expressed the
interpretation that only tribes with TAS status may participate as a
neighboring jurisdiction under section 401.\69\ This is because, unlike
section 401(a)(1), which specifically requires EPA to act as a
certifying authority on behalf of jurisdictions without the authority
to certify,\70\ section 401(a)(2) only provides ``states'' with an
opportunity to participate as a neighboring jurisdiction.
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\69\ See 2010 Handbook (rescinded); 85 FR 42274.
\70\ 33. U.S.C. 1341(a)(1) (``In any case where a State or
interstate agency has no authority to give such a certification,
such certification shall be from the Administrator.'')
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Although 78 tribes have received TAS for section 401 to date, EPA
recognizes that some tribes may not desire or have the resources to
apply for the section 401 certification program. However, pre-proposal
input suggests that tribes may wish to be notified about, and have the
ability to object to and provide information regarding, potential
Federal licenses and permits that may impact their waters. Several
tribal stakeholders have expressed concern that tribes without TAS are
not able to participate in the section 401(a)(2) neighboring
jurisdiction process. In light of this input, EPA is proposing to
provide tribes with an opportunity to seek TAS authorization for the
limited purpose of being a neighboring jurisdiction pursuant to section
401(a)(2).
This approach has been taken in other EPA programs. For example,
the Agency's regulations under the Clean Air Act provide opportunities
for interested tribes to seek TAS authorization for reasonably
severable elements of programs under that statute, so long as such
elements are not integrally related to program elements that are not
included and are consistent with applicable statutory and regulatory
requirements. See 40 CFR 49.7(c). Under that authority, EPA has
approved tribes for TAS authorization for the procedural comment
opportunity provided in connection with issuance of certain permits by
upwind permitting authorities, without requiring those tribes to seek
authorization for the entire relevant program. See 42 U.S.C.
7661d(a)(2).
EPA thinks that the neighboring jurisdiction role under section
401(a)(2) is similar. See discussion in section V.K in this
preamble.\71\ EPA thinks it is appropriate to allow tribes wishing to
protect their water quality interests under section 401(a)(2) to apply
for and obtain TAS status to do so independently of whether they also
desire to take on the separate responsibility to act pursuant to
sections 401(a)(1) and 401(d). Nothing in the language of section 401
precludes this approach.
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\71\ Under section 401(a)(2), once EPA determines that a
federally licensed or permitted discharge may affect the water
quality of a neighboring jurisdiction, EPA must notify that
neighboring jurisdiction. 33 U.S.C. 1341(a)(2). In turn, the
neighboring jurisdiction has 60 days to evaluate the notice and
determine whether the discharge will violate its water quality
requirements, object to the issuance of the license or permit, and
request a public hearing from the Federal licensing or permitting
agency. Id. Ultimately, the Federal licensing or permitting agency
is responsible for evaluating the neighboring jurisdiction's input,
in addition to EPA's input and other input received at the public
hearing, to determine whether it needs to condition the license or
permit to assure that it will comply with the neighboring
jurisdiction's water quality requirements. If conditions cannot
assure such compliance, then the Federal agency may not issue the
license or permit. Id.
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Additionally, EPA thinks that the neighboring jurisdiction role
under section 401(a)(2) is reasonably severable from the statute's
other water quality certification activities. Section 401 provides
separate and distinct roles for
[[Page 35373]]
certifying authorities and neighboring jurisdictions. As noted above,
the statutory language expressly provides a role for states and EPA to
act as certifying authorities in section 401(a)(1), but only provides a
role for states to act as a neighboring jurisdiction in section
401(a)(2). While both sections allow states and tribes with TAS status
to inform the Federal licensing or permitting process, there are
significant differences. For example, if a certifying authority places
conditions on a Federal license or permit through a water quality
certification, the Federal agency must incorporate those conditions
into the license or permit. 33 U.S.C. 1341(d). However, if a
neighboring jurisdiction objects to a Federal license or permit and
recommends conditions it would like to see in the Federal license or
permit, the Federal agency must consider that objection and recommended
conditions as part of its broader analysis, but it is not required to
incorporate them verbatim as required by section 401(d). Rather, the
Federal agency is only required to impose a neighboring jurisdiction's
recommended conditions to the extent they are necessary to assure
compliance with the neighboring jurisdiction's applicable water quality
requirements. Id. at 1341(a)(2).
EPA thinks that authorizing tribes to obtain TAS solely for section
401(a)(2) would allow tribes not interested in issuing their own
certifications to have an opportunity to participate as a neighboring
jurisdiction where discharges into another jurisdiction's waters may
affect their own water quality. The proposed approach is responsive to
stakeholder feedback and promotes tribal agency by providing an
opportunity for tribes to protect their water quality by participating
in the section 401 certification process without requiring the tribe to
assume all of the authorities and responsibilities of section 401. EPA
is soliciting comment on the proposed provisions, as well as comment on
any alternative approaches.
In section V.E in this preamble, EPA discussed the term ``any other
appropriate requirement of State law.'' That discussion applies equally
to tribal law for those tribes that obtain TAS status, either for
section 401 in its entirely or only for section 401(a)(2). There is no
reason to treat a tribe's laws differently than a state's laws with
respect to their ability to form the legal basis for a certification
decision or any conditions the tribe might find necessary to include in
a certification. Once it attains TAS status, a tribe stands on equal
footing with a state regarding its ability to carry out its functions
under sections 401(a)(1), 401(d) and 401(a)(2). Accordingly, a tribe
with TAS status under section 401(a)(2) may rely upon any of its water
quality-related laws in deciding whether to issue a certification (or
conditions) under sections 401(a)(1) and (d) or object to a Federal
license or permit under section 401(a)(2).
M. Implementation Considerations
EPA recognizes that both certifying authorities and Federal
agencies have existing regulations addressing implementation of section
401. For example, as discussed in section V.C in this preamble, the
Agency is aware that some certifying authorities have regulations
defining the contents of a request for certification. As a result of
this rulemaking effort, certifying authorities may choose to modify
their existing regulations if certain proposed provisions are finalized
(e.g., they may choose to define the contents of a certification
request in regulation instead of relying on EPA's proposed definition).
Similarly, EPA is aware that the Corps, FERC, and EPA's NPDES program
have separate section 401 implementation regulations addressing their
respective licensing or permitting programs.\72\ EPA expects that
Federal agencies with existing section 401 implementing regulations
will evaluate their regulations and other guidance documents to ensure
consistency with this regulation. EPA is requesting comment on the
types of implementation materials that EPA should develop to assist
Federal agencies and certifying authorities to implement any proposed
or alternative provisions discussed throughout this preamble.
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\72\ See e.g., 33 CFR 325.2 (water quality certification on
section 404 permits); 18 CFR 4.34 (water quality certification on
FERC hydropower licenses); 40 CFR 124.53 through 124.55 (water
quality certification on EPA-issued NPDES permits).
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VI. Economic Analysis
Pursuant to Executive Orders 12866 (Regulatory Planning and Review)
and 13563 (Improving Regulation and Regulatory Review), EPA has
prepared an economic analysis (EA) to inform the public of potential
effects associated with this proposed rulemaking. This analysis is not
required by the CWA.
To support the proposed rulemaking, EPA prepared an EA and other
related rule analyses to assess potential impacts of the rule. These
analyses seek to evaluate the benefits and costs of the proposed
rulemaking and the effects of the rule on vulnerable groups and small
entities. The EA presents an overview of practice under the 1971 Rule
and 2020 Rule (baselines),\73\ a description of the proposed changes,
and an assessment of the potential impacts of the proposed rulemaking
on project proponents, certifying authorities, and Federal agencies
when transitioning from the baselines of regulatory practice to the new
proposed requirements. Appendix A in the EA provides a plain-language
comparison of the 1971 Rule, 2020 Rule, and proposed rulemaking
provisions in a table format. Within the EA, the Agency included
discussion of the environmental benefits and process costs with
examples relative to the proposed rulemaking provisions. EPA also
assessed environmental justice impacts of the proposed rulemaking on
vulnerable communities and impacts on small entities. The Agency also
prepared an Information Collection Request Supporting Statement which
describes the overall burden of the section 401 regulations. See
section VII.B in this preamble.
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\73\ On October 21, 2021, the U.S. District Court for the
Northern District of California issued an order remanding and
vacating EPA's 2020 Rule. The vacatur was nationwide in scope, and
the order required a temporary return to the 1971 Rule until EPA
finalized a new certification rule. However, the U.S. Supreme Court
issued a stay of the vacatur on April 6, 2022, which put the 2020
Rule back in effect pending the Ninth Circuit and potential Supreme
Court appeal. Due to the stay of the vacatur pending appeal, EPA
considers two baselines in the economic analysis.
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Section 401 certification decisions have varying effects on
certifying authorities and project proponents. However, the Agency has
limited data regarding the number of certification requests submitted
and the certification decisions taken on certification requests (i.e.,
whether the certification requests were granted, granted with
conditions, denied, or waived). The Agency does not maintain a national
database of certifying authority decisions and therefore did not have
data available to perform a fully quantitative economic analysis. Given
the absence of data related to section 401 regulations, EPA performed a
qualitative analysis of the section 401 certification process under the
1971 Rule, the 2020 Rule, and under the proposed rulemaking.The Agency
reviewed information from several sources to characterize section 401
baseline conditions and understand potential impacts of the proposed
regulatory changes. Specifically, the Agency investigated state and
territory websites and assembled available information concerning
section 401 fees and certification decisions. EPA also conducted a
focused review of pre-
[[Page 35374]]
proposal input letters \74\ to extract any information concerning
economic impacts of section 401 and key issues identified during
implementation of section 401. Within the EA, EPA describes the various
Federal licenses and permits that require section 401 certification and
the potential actions that certifying authorities may take pursuant to
their section 401 authority. Additionally, the Agency summarized the
annual number of licenses and permits that require section 401
certification under different Federal authorities to determine the
extent of licensing and permitting actions within the section 401
universe. These types of information are used in the EA to describe
implementation practices and trends under the baselines and serve as
the basis for assessing impacts of the proposed rulemaking.
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\74\ Docket ID No. EPA-HQ-OW-2021-0302.
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In determining the potential effects of the proposed rulemaking,
EPA described the impacts of rule revisions in several key areas
including pre-filing meetings, contents of certification requests, time
period for review, neighboring jurisdictions, and tribal provisions for
implementing section 401. The 1971 Rule baseline did not include a pre-
filing meeting request requirement. However, because pre-filing
meetings allow for early discussion of project details, such meetings
would ultimately be expected to reduce burden elsewhere in the section
401 certification process. The 2020 Rule does not provide certifying
authorities with the option to waive or shorten the pre-filing meeting
request requirement. The Agency anticipates that the proposed pre-
filing meeting request provision would provide flexibility for
certifying authorities to decide whether to require pre-filing meeting
requests and whether to hold pre-filing meetings based on project
complexity and other factors. Relative to both the 1971 Rule and 2020
Rule baselines, the Agency expects that the proposed requirement to
include a copy of the draft license or permit with all requests for
certifications would decrease the number of redundant and unnecessary
certification conditions and increase the amount of relevant project-
specific information available to the certifying authority promoting a
more efficient certification review process. Additionally, relative to
the two baselines, the proposed changes concerning the reasonable time
for certification review would balance equities between certifying
authorities and Federal agencies and provide flexibility for certifying
authorities and Federal agencies to determine the optimal length for
the reasonable period of time or any extensions, provided they do not
exceed one year from receipt. For example, the proposed rulemaking
would allow certifying authorities to ensure that the reasonable period
of time is informed by the size and complexity of the project, the
certifying authority's available resources (e.g., staff size), and
public notice and comment requirements. Allowing the certifying
authority and Federal agency to negotiate a reasonable period of time
at the beginning of the certification process (subject to a 60-day
default) is also likely to improve the efficiency of the review
process. The proposed rule also provides greater clarity regarding the
process to protect neighboring jurisdiction waters (e.g., by specifying
the contents of a notification from a Federal agency to EPA), which is
also expected to increase its efficiency. This clarity and efficiency
is expected when using the 1971 Rule as the baseline, as well as for
the 2020 Rule baseline (though potentially to a lesser extent due to
some updated provisions in the 2020 Rule). Neither the 1971 Rule nor
the 2020 Rule included TAS provisions. Proposed revisions permitting
tribes to obtain TAS solely for section 401 and, if desired, to only
obtain TAS for the purpose of participating as neighboring
jurisdictions under section 401(a)(2), would provide tribes with a
greater ability to protect their water resources from the adverse
effects of pollution from federally licensed or permitted projects.
In some areas, the proposed rulemaking would revive practices that
had been widely implemented for 50 years before the 2020 Rule.
Specifically, the proposal would return the scope of a certifying
authority's section 401 review as encompassing the ``activity as a
whole,'' which is consistent with longstanding Agency and certifying
authority practice and allows certifying authorities to protect their
waters from the widest range of impacts. The Agency is proposing to put
back a certification modification process, allowing certifying
authorities and Federal agencies the flexibility to mutually agree on
circumstances warranting modification. Provided that certification
modification efforts are appropriately coordinated, the modification
process under the proposed rulemaking would allow certifying
authorities to adapt to changes in environmental and regulatory
conditions, and provide needed flexibility to accommodate changed
circumstances after issuance of a section 401 certification.
EPA anticipates that the proposed rulemaking will enhance the
ability of states and tribes to protect their water resources by
clarifying key components of the water quality certification process
and improving coordination between Federal agencies, certifying
authorities, and project proponents. The Agency is seeking comment on
the EA and information collection request, including the information
used to inform the Agency's understanding of baseline conditions.
Additionally, EPA is requesting comment on any additional data sources
that can be used to characterize the baseline for section 401
implementation and serve as the basis for understanding the potential
impacts of any of these proposed regulatory changes.
VII. Statutory and Executive Order Reviews
Additional information about these statutes and Executive orders
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.
A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review
This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket for this action. The Agency prepared an economic analysis of the
potential benefits and costs associated with this action. This
analysis, the Economic Analysis for the Proposed Rule, is available in
the docket for this action and is briefly summarized in section VI in
this preamble.
B. Paperwork Reduction Act (PRA)
The information collection activities in this proposed rulemaking
have been submitted for approval to OMB under the PRA. The Information
Collection Request (ICR) document that EPA prepared has been assigned
EPA ICR number 2603.06. A copy of the ICR is included in the docket for
this rule, and it is briefly summarized here.
The information collected under section 401 is used by certifying
authorities and EPA to evaluate potential water quality impacts from
federally licensed or permitted projects. When states or tribes with
TAS act as the certifying authority, the primary collection of this
information is performed by the Federal agencies issuing the licenses
or permits or the states and tribes acting as certifying authorities.
When EPA acts as the
[[Page 35375]]
certifying authority or evaluates potential neighboring jurisdiction
impacts, the information is collected by EPA. Information collected
directly by EPA under section 401 in support of the section 402 NPDES
program is already captured under existing ICR No. 0229.255 (OMB
Control No. 2040-0004). The information collected under section 518(e)
is used by EPA to determine whether a tribe is eligible for TAS for
section 401 or section 401(a)(2). Information collected directly by EPA
under section 518(e) in support of the process for tribes to obtain TAS
for CWA section 303(c) and section 401 simultaneously is already
captured under existing ICR No. 0988.14 (OMB Control No. 2040-0049).
The proposed revisions clarify the nature of the information
project proponents must include in a request for section 401
certification. They also contain a pre-filing meeting request
requirement for project proponents which may be waived or shortened by
a certifying authority. The proposed revisions also provide tribes with
the ability to obtain TAS solely for either section 401 or section
401(a)(2). Total annual burden for respondents (project proponents and
certifying authorities and tribes applying for TAS) are anticipated to
be 861,274 hours with the associated annual labor costs being
approximately $47 million. EPA expects that these proposed revisions
will provide additional transparency in the certification modification
and section 401(a)(2) contexts. EPA expects these proposed revisions to
provide greater clarity regarding section 401 requirements, to reduce
the overall preparation time spent by a project proponent on
certification requests, and to reduce the review time for certifying
authorities. EPA solicits comment on whether there are ways it can
increase clarity, reduce the information collection burden, or improve
the quality or utility of the information collected, or the information
collection process itself, in furtherance of goals and requirements of
section 401.
In the interest of transparency, EPA is providing the following
summary of the relevant portions of the burden assessment associated
with EPA's existing certification regulations. EPA does not expect any
measurable change in information collection burden associated with the
proposed rulemaking changes.
Respondents/affected entities: Project proponents, state and tribal
reviewers (certifying authorities), tribes applying for TAS.
Respondent's obligation to respond: Required to obtain section 401
water quality certification; voluntary for tribes to apply for TAS.
Estimated number of respondents: 154,006 responses from 72,125
respondents annually.
Frequency of response: Variable (one per Federal license or permit
application, or only once) depending on type of information collected.
Total estimated burden: 861,274 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
Total estimated cost: $47 million (per year), includes $0
annualized capital or operation & maintenance costs.
An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. The EPA will respond to any ICR-related
comments in the final rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs using the
interface at www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. OMB must receive
comments no later than [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION
IN THE FEDERAL REGISTER].
C. Regulatory Flexibility Act (RFA)
I certify that this proposed rulemaking will not have a significant
economic impact on a substantial number of small entities under the
RFA. The small entities subject to the requirements of this action are
small businesses applying for Federal licenses or permits subject to
section 401 certification, which includes construction, manufacturing,
mining, and utility businesses. Section 401 requires project proponents
to obtain a water quality certification from the certifying authority
where the potential discharge originates or will originate before it
may obtain such Federal license or permit. Small entities are not
subject to economic impacts from the proposed rule's requirements on
certifying authorities, Federal agencies, or neighboring jurisdictions
because small entities do not act in those roles under section 401.
EPA is not able to quantify the impacts of the proposed rulemaking
on small entities due to several data limitations and uncertainties,
which are described within the Economic Analysis for the Proposed Rule,
available in the docket for this rulemaking. However, EPA is including
a qualitative assessment of the potential impacts of the proposed
rulemaking on project proponents that are small entities in the
Economic Analysis. Based on the qualitative analysis, the Agency has
determined that some small entities may experience some impact from the
proposed rulemaking but that the impact would not be significant. See
the Economic Analysis for details of the qualitative analysis.
D. Unfunded Mandates Reform Act (UMRA)
This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. While this action
creates enforceable duties for the private sector, the cost does not
exceed $100 million or more. This action does not create enforceable
duties for state and tribal governments. See the Economic Analysis in
the docket for further discussion on UMRA.
E. Executive Order 13132: Federalism
Under the technical requirements of Executive Order 13132 (64 FR
43255, August 10, 1999), EPA has determined that this proposed
rulemaking does not have federalism implications but expects that this
proposed rulemaking may be of significant interest to state and local
governments.
EPA is proposing updates to its CWA section 401 regulation to
provide greater clarity and flexibility for certifying authorities in
relation to acting on pre-filing meeting requests, contents of requests
for certification, and acting within the reasonable period of time. EPA
is also proposing to clarify the scope of Federal agency review of
certification decisions; however, nothing in EPA's proposed rulemaking
would preempt state law. These proposed regulatory clarifications and
revisions will reinforce the authority granted to states by CWA section
401 to protect their water quality, which had been exercised by the
states prior to implementation of the 2020 Rule.
Prior to proposing this rule, EPA solicited recommendations and
conducted pre-proposal outreach, such as virtual listening sessions,
where many state and local governments, intergovernmental associations,
and other associations representing state and
[[Page 35376]]
local governments participated. Specifically, EPA hosted webinar-based
listening sessions for pre-proposal input on June 14, June 15, June 23,
and June 24, 2021, with over 400 participants from most states and a
few territories. Furthermore, EPA accommodated requests for listening
sessions with representatives from the Association of Clean Water
Administrators, the Association of State Wetland Managers, the
Environmental Council of the States, Western States Water Council,
Indiana Department of Environmental Management, Maryland Department of
the Environment, New Mexico Environmental Department, New York
Department of Environmental Conservation, Oregon Department of
Environmental Quality, Virginia Department of Environmental Quality,
and Washington Department of Ecology. All pre-proposal input letters
and summaries of the webinar-based listening sessions are available in
Docket ID No. EPA-HQ-OW-2021-0302. These webinars, meetings, and input
letters provided a wide and diverse range of interests, positions, and
recommendations to the Agency. The pre-proposal feedback from
certifying authorities covered eight of the issues the EPA identified
in the Federal Register document. See 86 FR 29543-44. Generally,
participants advocated for states to have increased authority and
flexibility to determine the needs and requirements for certification
requests. In addition, states asked EPA to clarify definitions and
conveyed support for interim guidance and immediate relief as they
continued to implement the 2020 Rule.
After publishing this proposed rulemaking, EPA will conduct
additional outreach and engagement with state and local government
officials, or their representative national organizations, prior to
finalizing a rule. All comment letters and recommendations received by
EPA during the comment period from state and local governments will be
included in the proposed rulemaking docket (Docket ID No. EPA-HQ-OW-
2022-0128).
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action may have implications for tribal governments. However,
it will neither impose substantial direct compliance costs on federally
recognized tribal governments, nor preempt tribal law. This action may
change how tribes with TAS for section 401 administer the section 401
program, but it will not have an administrative impact on tribes on
whose behalf EPA issues certifications. As discussed in the preamble,
EPA expects this proposal to expand and further clarify the
opportunities for tribal participation in the CWA section 401 water
quality certification process.
EPA consulted with tribal officials under the EPA Policy on
Consultation and Coordination With Indian Tribes early in the process
of developing this proposed rulemaking to allow them to have meaningful
and timely input into its development.
The Agency initiated a tribal consultation and coordination process
before proposing this rule by sending a ``Notification of Consultation
and Coordination'' letter, dated June 7, 2021, to all 574 of the tribes
federally recognized at that time (see Docket ID No. EPA-HQ-OW-2021-
0302). The letter invited tribal leaders and designated consultation
representatives to participate in the tribal consultation and
coordination process for this rulemaking. In addition to two national
tribal webinars held on June 29 and July 7, 2021, the Agency convened
other listening sessions, that tribal members and representatives
attended, for certifying authorities and the public. EPA continued
outreach and engagement with tribes and sought other opportunities to
provide information and hear feedback from tribes at national and
regional tribal meetings during and after the end of the consultation
period. The Agency did not receive any consultation requests. All
tribal and tribal organization letters and webinar feedback are
included in the pre-proposal docket (Docket ID No. EPA-HQ-OW-2021-
0302), and a summary of the tribal consultation and coordination effort
may be found in the docket for this action (Docket ID No. EPA-HQ-OW-
2022-0128).
Many tribal feedback letters or meeting participants expressed an
interest in receiving additional information and in continued
engagement with the Agency during development of the proposed
rulemaking; however, most of these tribal representatives highlighted
other ongoing rulemakings that also required their engagement. Common
themes expressed in the tribal feedback letters included the need for
applicants to submit complete certification requests, expanding the
scope of certifications, cooperative federalism, concerns about a
Federal agency's unilateral ability to determine the reasonable period
of time, and concerns about Federal agencies waiving certifying
authority decisions. Feedback was relatively consistent across these
stakeholders regardless of whether the feedback was from tribes having
TAS or not.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.
H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
I. National Technology Transfer and Advancement Act
This proposed rulemaking does not involve technical standards.
J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this decision is contained in the Economic Analysis
for the Proposed Rule, which can be found in the docket for this action
and is briefly summarized in section VI in this preamble.
The Agency recognizes that the burdens of environmental pollution
disproportionately fall on population groups of concern (e.g.,
minority, low-income, and indigenous populations as specified in
Executive Order 12898), and EPA is responsive to environmental justice
concerns through multiple provisions in this proposal. The proposed
pre-filing meeting request requirement provides a mechanism to ensure
certifying authorities can request and receive information needed to
protect their water resources and population groups of concern during
early engagement. Additionally, the proposal to include a copy of the
draft permit or license in a ``request for certification'' empowers
certifying
[[Page 35377]]
authorities with more details upfront about the project to make a well-
informed decision that may affect population groups of concern,
promoting environmental justice and transparency in the certification
process. This also enables certifying authorities to share a greater
level of detail with the public (including population groups of concern
that may be impacted by a proposed project), so that participants in
the public notice and comment process can provide better informed
input.\75\ Under the proposed collaborative approach for determining
the reasonable period of time, certifying authorities can take the
needs of population groups of concern into account when determining the
amount of time they need to review and evaluate the potential impacts
of a proposed project on the communities' water resources (e.g., a
certifying authority may suggest a longer reasonable period of time to
facilitate outreach to population groups of concern or to conduct
studies on a proposed project's impact on these communities).
Additionally, the ``activity as a whole'' approach for scope of review
has the potential to benefit population groups of concern by ensuring
that the certifying authority can broadly review the potential water
quality impacts on those communities. The proposed TAS provisions for
section 401 as a whole or for section 401(a)(2) give tribes additional
options to obtain TAS, as well as more opportunities to provide input
and voice any water quality concerns during the certification process.
Lastly, when EPA is acting as the certifying authority, the Agency is
proposing to update the public notice provision to facilitate
participation by the broadest number of potentially interested
stakeholders, including population groups of concern. These proposed
approaches and their responsiveness to environmental justice concerns
is further discussed within the environmental justice section of the
Economic Analysis.
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\75\ Under section 401(a)(1), a certifying authority is required
to provide public notice on a request for certification.
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List of Subjects
40 CFR Part 121
Environmental protection, Administrative practice and procedure,
Intergovernmental relations, Water pollution control.
40 CFR Part 122
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.
40 CFR Part 124
Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous waste, Indians-lands, Reporting and
recordkeeping requirements, Water pollution control, Water supply.
Michael S. Regan,
Administrator.
For the reasons set out in the preamble, EPA proposes to amend 40
CFR parts 121, 122, and 124 as follows:
0
1. Revise part 121 to read as follows:
PART 121--STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL
LICENSE OR PERMIT
Sec.
Subpart A--General
121.1 Definitions.
121.2 When certification is required.
121.3 Scope of certification.
121.4 Pre-filing meeting requests.
121.5 Request for certification.
121.6 Reasonable period of time.
121.7 Certification decisions.
121.8 Failure or refusal to act.
121.9 Federal agency review.
121.10 Modifications.
121.11 Requirements for Indian Tribes to administer a water quality
certification program.
Subpart B--Neighboring Jurisdictions
121.12 Notification to the Regional Administrator.
121.13 Determination of effects on neighboring jurisdictions.
121.14 Neighboring jurisdiction objection and request for a public
hearing.
121.15 Public hearing and Federal agency evaluation of neighboring
jurisdiction objection.
Subpart C--Certification by the Administrator
121.16 When the Administrator certifies.
121.17 Public notice and hearing.
Subpart D--Review and Advice
121.18 Review and advice.
Authority: 33 U.S.C. 1251 et seq.
Subpart A--General
Sec. 121.1 Definitions.
As used in this part, the following terms shall have the meanings
indicated:
(a) Activity as a whole means any aspect of the project activity
with the potential to affect water quality.
(b) Administrator means the Administrator, Environmental Protection
Agency (EPA).
(c) Application means an application for a license or permit
submitted to a Federal agency, or if available, the draft license or
permit.
(d) Certifying authority means the entity responsible for
certifying compliance with applicable water quality requirements in
accordance with Clean Water Act section 401.
(e) Federal agency means any agency of the Federal Government to
which application is made for a license or permit that is subject to
Clean Water Act section 401.
(f) Federal Indian Reservation, Indian reservation, or reservation
means all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation.
(g) Indian Tribe or Tribe means any Indian Tribe, band, group, or
community recognized by the Secretary of the Interior and exercising
governmental authority over a Federal Indian Reservation.
(h) License or permit means any license or permit issued or granted
by an agency of the Federal Government to conduct any activity which
may result in any discharge into waters of the United States.
(i) Neighboring jurisdiction means any state, or tribe with
treatment in a similar manner as a state for Clean Water Act section
401 in its entirety or only for Clean Water Act section 401(a)(2),
other than the jurisdiction in which the discharge originates or will
originate.
(j) Project proponent means the applicant for a license or permit
or the entity seeking certification.
(k) Receipt means the date that a request for certification, as
defined by the certifying authority, is documented as received by a
certifying authority in accordance with the certifying authority's
applicable submission procedures.
(l) Regional Administrator means the Regional designee appointed by
the Administrator, Environmental Protection Agency.
(m) Water quality requirements means any limitation, standard, or
other requirement under sections 301, 302, 303, 306 and 307 of the
Clean Water Act, any Federal and state or tribal laws or regulations
implementing those sections, and any other water quality-related
requirement of state or tribal law.
Sec. 121.2 When certification is required.
Certification or waiver is required for any license or permit that
authorizes an activity which may result in a discharge from a point
source into a water of the United States.
[[Page 35378]]
Sec. 121.3 Scope of certification.
When a certifying authority reviews a request for certification, it
shall evaluate whether the activity as a whole will comply with all
applicable water quality requirements.
Sec. 121.4 Pre-filing meeting requests.
The project proponent shall request a pre-filing meeting from a
certifying authority at least 30 days prior to submitting a request for
certification in accordance with the certifying authority's applicable
submission procedures, unless the certifying authority waives or
shortens the requirement for a pre-filing meeting request.
Sec. 121.5 Request for certification.
(a) A request for certification shall be in writing, signed, and
dated and shall include a copy of the draft license or permit (unless
legally precluded from obtaining a copy of the draft license or permit)
and any existing and readily available data or information related to
potential water quality impacts from the proposed project.
(b) Where a project proponent is seeking certification from the
Regional Administrator, a request for certification shall also include
the additional contents identified in paragraph (c) of this section.
Where a project proponent is seeking certification from a certifying
authority other than the Regional Administrator, and that certifying
authority has not identified in regulation additional contents of a
request for certification, the project proponent shall submit a request
for certification as defined in paragraph (c) of this section.
(c) A request for certification submitted to the Regional
Administrator shall include the following, if not already included in
the draft license or permit:
(1) The name and address of the project proponent;
(2) The project proponent's contact information;
(3) Identification of the applicable Federal license or permit,
including Federal license or permit type, project name, project
identification number, and a point of contact for the Federal agency;
(4) Where applicable, a list of all other Federal, interstate,
tribal, state, territorial, or local agency authorizations required for
the proposed activity and the current status of each authorization; and
(5) Documentation that a pre-filing meeting request was submitted
to the certifying authority in accordance with applicable submission
requirements, unless a pre-filing meeting request has been waived.
(d) A certifying authority shall send written confirmation of the
date of receipt of the request for certification to the project
proponent and Federal agency.
Sec. 121.6 Reasonable period of time.
(a) The reasonable period of time shall begin upon receipt of a
request for certification.
(b) The Federal agency and the certifying authority may, within 30
days of receipt of a request for certification, jointly agree in
writing to a reasonable period of time for the certifying authority to
act on the request for certification, provided the reasonable period of
time does not exceed one year from receipt.
(c) If the Federal agency and the certifying authority do not agree
on the length of a reasonable period of time within 30 days of receipt
of a request for certification, the reasonable period of time shall be
60 days. If a longer period of time is necessary to accommodate the
certifying authority's public notice requirements or force majeure
events (including, but not limited to, government closure or natural
disasters), upon notification by the certifying authority prior to the
end of the reasonable period of time, the reasonable period of time
shall be extended by the period of time necessitated by public notice
requirements or the force majeure event. In its notification, the
certifying authority shall provide the Federal agency with a
justification for such extension in writing. Such an extension may not
exceed one year from receipt of the certification request.
(d) The Federal agency and certifying authority, after consulting
with the project proponent, may agree to extend the reasonable period
of time in writing for any other reason, provided the reasonable period
of time as extended does not exceed one year from receipt of the
request for certification.
Sec. 121.7 Certification decisions.
(a) A certifying authority may act on a request for certification
in one of four ways: grant certification, grant certification with
conditions, deny certification, or expressly waive certification.
(b) A certifying authority shall act on a request for certification
within the scope of certification, as defined at Sec. 121.3, and
within the reasonable period of time, as determined pursuant to Sec.
121.6.
(c) A grant of certification by a certifying authority shall be in
writing and include the following:
(1) Name and address of the project proponent and identification of
the applicable Federal license or permit; and
(2) A statement that the activity as a whole will comply with water
quality requirements.
(d) A grant of certification with conditions by a certifying
authority shall be in writing and include the following:
(1) Name and address of the project proponent and identification of
the applicable Federal license or permit;
(2) Any conditions necessary to assure that the activity as a whole
will comply with water quality requirements; and
(3) A statement explaining why each of the included conditions is
necessary to assure that the activity as a whole will comply with water
quality requirements.
(e) A denial of certification by a certifying authority shall be in
writing and include the following:
(1) Name and address of the project proponent and identification of
the applicable Federal license or permit; and
(2) A statement explaining why the certifying authority cannot
certify that the activity as a whole will comply with water quality
requirements.
(f) An express waiver by a certifying authority shall be in writing
and include the following:
(1) Name and address of the project proponent and identification of
the applicable Federal license or permit; and
(2) A statement stating that the certifying authority expressly
waives its authority to act on a request for certification.
(g) If the certifying authority determines that no water quality
requirements are applicable to the activity as a whole, the certifying
authority shall grant certification.
Sec. 121.8 Failure or refusal to act.
The certification requirement shall be waived if a certifying
authority fails or refuses to act on a request for certification in
accordance with Sec. 121.7(a) within the reasonable period of time, as
defined at Sec. 121.6.
Sec. 121.9 Federal agency review.
(a) To the extent a Federal agency reviews a certification decision
for compliance with Clean Water Act section 401, its review is limited
to evaluating whether:
(1) The certification decision indicates whether it is a grant,
grant
[[Page 35379]]
with conditions, denial, or express waiver;
(2) The proper certifying authority issued the certification
decision;
(3) The certifying authority provided public notice on the request
for certification; and
(4) The certification decision was issued within the reasonable
period of time, as defined at Sec. 121.6.
(b) If a Federal agency determines that a certification decision
does not meet the elements identified in paragraph (a)(1) or (3) of
this section, the Federal agency shall notify the certifying authority
and provide the certifying authority with an opportunity to ensure that
its certification decision meets those elements. If necessary, the
reasonable period of time shall be extended to provide the certifying
authority with such an opportunity, but in no case shall the reasonable
period of time exceed one year from the receipt of the certification
request.
(c) If a Federal agency determines that a certification decision
does not meet the element identified in paragraph (a)(4) of this
section, the Federal agency shall notify the certifying authority and
project proponent in writing that the certification requirement has
been waived in accordance with Sec. 121.8. Such notice shall satisfy
the project proponent's obligations under Clean Water Act section 401.
Sec. 121.10 Modifications.
(a) The certifying authority may not:
(1) Revoke or modify a denial of certification;
(2) Revoke or modify a waiver of certification;
(3) Revoke a grant of certification (with or without conditions);
or
(4) Modify a grant of certification (with or without conditions)
into a denial or waiver of certification.
(b) Provided that the Federal agency and the certifying authority
agree in writing that the certifying authority may modify a grant of
certification (with or without conditions), the certifying authority
may modify the agreed upon portions of the certification.
Sec. 121.11 Requirements for Indian Tribes to administer a water
quality certification program.
(a) The Regional Administrator may accept and approve a tribal
application for purposes of administering a water quality certification
program if the Tribe meets the following criteria:
(1) The Indian Tribe is recognized by the Secretary of the Interior
and meets the definitions in Sec. 121.1(f) and (g);
(2) The Indian Tribe has a governing body carrying out substantial
governmental duties and powers;
(3) The water quality certification program to be administered by
the Indian Tribe pertains to the management and protection of water
resources that are within the borders of the Indian reservation and
held by the Indian Tribe, within the borders of the Indian reservation
and held by the United States in trust for Indians, within the borders
of the Indian reservation and held by a member of the Indian Tribe if
such property interest is subject to a trust restriction on alienation,
or otherwise within the borders of the Indian reservation; and
(4) The Indian Tribe is reasonably expected to be capable, in the
Regional Administrator's judgment, of carrying out the functions of an
effective water quality certification program in a manner consistent
with the terms and purposes of the Clean Water Act and applicable
regulations.
(b) Requests by an Indian Tribe for administration of a water
quality certification program should be submitted to the appropriate
EPA Regional Administrator. The application shall include the following
information, provided that where the Tribe has previously qualified for
eligibility or ``treatment as a state'' under another EPA-administered
program, the Tribe need only provide the required information that has
not been submitted in a previous application:
(1) A statement that the Tribe is recognized by the Secretary of
the Interior.
(2) A descriptive statement demonstrating that the tribal governing
body is currently carrying out substantial governmental duties and
powers over a defined area. The statement should:
(i) Describe the form of tribal government;
(ii) Describe the types of governmental functions currently
performed by the tribal governing body such as, but not limited to, the
exercise of police powers affecting (or relating to) the health,
safety, and welfare of the affected population, taxation, and the
exercise of the power of eminent domain; and
(iii) Identify the source of the tribal government's authority to
carry out the governmental functions currently being performed.
(3) A descriptive statement of the Tribe's authority to regulate
water quality. The statement should include:
(i) A map or legal description of the area over which the Tribe
asserts authority to regulate surface water quality; and
(ii) A statement by the Tribe's legal counsel or equivalent
official that describes the basis for the Tribe's assertion of
authority and may include copies of documents such as tribal
constitutions, by-laws, charters, executive orders, codes, ordinances,
and/or resolutions that support the Tribe's assertion of authority.
(4) A narrative statement describing the capability of the Indian
Tribe to administer an effective water quality certification program.
The narrative statement should include:
(i) A description of the Indian Tribe's previous management
experience that may include the administration of programs and services
authorized by the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450, et seq.), the Indian Mineral Development Act (25
U.S.C. 2101, et seq.), or the Indian Sanitation Facility Construction
Activity Act (42 U.S.C. 2004a);
(ii) A list of existing environmental or public health programs
administered by the tribal governing body and copies of related tribal
laws, policies, and regulations;
(iii) A description of the entity (or entities) which exercise the
executive, legislative, and judicial functions of the tribal
government;
(iv) A description of the existing, or proposed, agency of the
Indian Tribe which will assume primary responsibility for establishing
and implementing a water quality certification program; and
(v) A description of the technical and administrative capabilities
of the staff to administer and manage an effective water quality
certification program or a plan which proposes how the Tribe will
acquire additional administrative and technical expertise. The plan
must address how the Tribe will obtain the funds to acquire the
administrative and technical expertise.
(5) Additional documentation required by the Regional Administrator
which, in the judgment of the Regional Administrator, is necessary to
support a tribal application.
(c) The procedure for processing a Tribe's application is as
follows:
(1) The Regional Administrator shall process an application of an
Indian Tribe submitted pursuant to paragraph (b) of this section in a
timely manner. The Regional Administrator shall promptly notify the
Indian Tribe of receipt of the application.
(2) Except as provided in paragraph (c)(4) of this section, within
30 days after receipt of the Tribe's application, the Regional
Administrator shall provide appropriate notice. The notice shall:
[[Page 35380]]
(i) Include information on the substance and basis of the Tribe's
assertion of authority to regulate the quality of reservation waters;
(ii) Be provided to all appropriate governmental entities; and
(iii) Provide 30 days for comments to be submitted on the tribal
application. Comments shall be limited to the Tribe's assertion of
authority.
(3) If a Tribe's asserted authority is subject to a competing or
conflicting claim, the Regional Administrator, after due consideration,
and in consideration of other comments received, shall determine
whether the Tribe has adequately demonstrated that it meets the
requirements of paragraph (a)(3) of this section.
(4) Where, after [EFFECTIVE DATE OF FINAL RULE], EPA has determined
that a Tribe qualifies for treatment in a similar manner as a state for
the Clean Water Act section 303(c) Water Quality Standards Program,
Clean Water Act section 303(d) Impaired Water Listing and Total Maximum
Daily Loads Program, Clean Water Act section 402 National Pollutant
Discharge Elimination System Program, or Clean Water Act section 404
Dredge and Fill Permit Program, and has provided notice and an
opportunity to comment on the Tribe's assertion of authority to
appropriate governmental entities as part of its review of the Tribe's
prior application, no further notice to governmental entities, as
described in paragraph (c)(2) of this section, shall be provided with
regard to the same Tribe's application for the water quality
certification program, unless the application presents to the EPA
Regional Administrator different jurisdictional issues or significant
new factual or legal information relevant to jurisdiction.
(5) Where the Regional Administrator determines that a Tribe meets
the requirements of this section, they shall promptly provide written
notification to the Indian Tribe that the Tribe is authorized to
administer the water quality certification program.
(d) An Indian Tribe may submit a tribal application for purposes of
administering only the Clean Water Act section 401(a)(2) portion of a
water quality certification program.
Subpart B--Neighboring Jurisdictions
Sec. 121.12 Notification to the Regional Administrator.
(a) Within five days of the date that it has received both the
application and either a certification or waiver for a Federal license
or permit, the Federal agency shall provide written notification to the
Regional Administrator.
(1) The notification shall include a copy of the certification or
waiver and the application for the Federal license or permit.
(2) The notification shall also contain a general description of
the proposed project, including but not limited to, permit or license
identifier, project location (e.g., latitude and longitude), a project
summary including the nature of any discharge and size or scope of
activity, and whether the Federal agency is aware of any neighboring
jurisdiction providing comment about the project. If the Federal agency
is aware that a neighboring jurisdiction provided comment about the
project, it shall include a copy of those comments in the notification.
(b) If the Regional Administrator determines there is a need for
supplemental information to make a determination about potential
neighboring jurisdiction effects pursuant to Clean Water Act section
401(a)(2), the Regional Administrator may make a written request to the
Federal agency that such information be provided in a timely manner for
EPA's determination, and the Federal agency shall obtain that
information from the project proponent and forward the additional
information to the Administrator within such timeframe.
(c) The Regional Administrator may enter into an agreement with a
Federal agency regarding the manner of this notification process and
the provision of supplemental information.
Sec. 121.13 Determination of effects on neighboring jurisdictions.
(a) Within 30 days after the Regional Administrator receives notice
in accordance with Sec. 121.12(a), the Regional Administrator shall
determine whether a discharge from the certified or waived project may
affect water quality in a neighboring jurisdiction.
(b) If the Regional Administrator determines that the discharge
from the project may affect water quality in a neighboring
jurisdiction, within 30 days after receiving notice in accordance with
Sec. 121.12(a), the Regional Administrator shall notify the
neighboring jurisdiction, the certifying authority, the Federal agency,
and the project proponent in accordance with paragraph (c) of this
section.
(c) Notification from the Regional Administrator shall be in
writing and shall include:
(1) A statement that the Regional Administrator has determined that
a discharge from the project may affect the neighboring jurisdiction's
water quality;
(2) A copy of the license or permit application and related
certification or waiver; and
(3) A statement that the neighboring jurisdiction has 60 days to
notify the Regional Administrator, the Federal agency, and the
certifying authority, in writing, whether it has determined that the
discharge will violate any of its water quality requirements, to object
to the issuance of the Federal license or permit, and to request a
public hearing from the Federal agency.
(d) A Federal license or permit may not be issued pending the
conclusion of the process described in Sec. Sec. 121.14 and 121.15.
Sec. 121.14 Neighboring jurisdiction objection and request for a
public hearing.
(a) If the neighboring jurisdiction determines that a discharge
will violate any of its water quality requirements, within 60 days
after receiving notice in accordance with Sec. 121.13(c), the
neighboring jurisdiction shall notify the Regional Administrator, the
Federal agency, and the certifying authority in accordance with
paragraph (b) of this section.
(b) Notification from the neighboring jurisdiction shall be in
writing and shall include:
(1) A statement that the neighboring jurisdiction objects to the
issuance of the Federal license or permit;
(2) An explanation of the reasons supporting the neighboring
jurisdiction's determination that the discharge will violate its water
quality requirements, including but not limited to, an identification
of those water quality requirements that will be violated; and
(3) A request for a public hearing from the Federal agency on its
objection.
Sec. 121.15 Public hearing and Federal agency evaluation of
neighboring jurisdiction objection.
(a) Upon a request for hearing from a neighboring jurisdiction in
accordance with Sec. 121.14(b), the Federal agency shall hold a public
hearing on the neighboring jurisdiction's objection to the license or
permit.
(b) The Federal agency shall provide public notice at least 30 days
in advance of the hearing.
(c) At the hearing, the Regional Administrator shall submit to the
Federal agency its evaluation and recommendation(s) concerning the
objection.
(d) The Federal agency shall consider recommendations from the
neighboring jurisdiction and the Regional
[[Page 35381]]
Administrator, and any additional evidence presented to the Federal
agency at the hearing, and determine whether additional license or
permit conditions may be necessary to ensure that any discharge from
the project will comply with the neighboring jurisdiction's water
quality requirements. If such conditions may be necessary, the Federal
agency shall include them in the license or permit.
(e) If additional license or permit conditions cannot ensure that
the discharge from the project will comply with the neighboring
jurisdiction's water quality requirements, the Federal agency shall not
issue the license or permit.
Subpart C--Certification by the Administrator
Sec. 121.16 When the Administrator certifies.
(a) Certification or waiver by the Administrator is required where
no state, tribe, or interstate agency has authority to give such a
certification.
(b) When acting pursuant to this section, the Administrator shall
comply with the requirements of Clean Water Act section 401 and this
part.
Sec. 121.17 Public notice and hearing.
(a) Within 20 days of receipt of a request for certification, the
Administrator shall provide public notice of receipt of a request for
certification. Following such public notice, the Administrator shall
provide an opportunity for public comment.
(b) If the Administrator determines that a public hearing on a
request for certification is appropriate or necessary, the
Administrator shall schedule such hearing at an appropriate time and
place and, to the extent practicable, give all interested and
potentially affected parties the opportunity to present evidence or
testimony in person or by other means.
Subpart D--Review and Advice
Sec. 121.18 Review and advice.
Upon the request of any Federal agency, certifying authority, or
project proponent, the Administrator shall provide any relevant
information on applicable effluent limitations, or other limitations,
standards, regulations, or requirements, or water quality criteria, and
shall, when requested by any Federal agency, certifying authority, or
project proponent, comment on any methods to comply with such
limitations, standards, regulations, requirements, or criteria.
PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM
0
2. The authority citation for part 122 continues to read as follows:
Authority: The Clean Water Act, 33 U.S.C. 1251 et seq.
0
3. Section 122.4 is amended by revising paragraph (b) to read as
follows:
Sec. 122.4 Prohibitions (applicable to State NPDES programs, see
Sec. 123.25).
* * * * *
(b) When the applicant is required to obtain a State or other
appropriate certification under section 401 of the CWA and that
certification has not been obtained or waived;
* * * * *
0
4. Section 122.44 is amended by revising paragraph (d)(3) to read as
follows:
Sec. 122.44 Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec. 123.25).
* * * * *
(d) * * *
(3) Conform to the conditions in a State certification under
section 401 of the CWA when EPA is the permitting authority;
* * * * *
PART 124--PROCEDURES FOR DECISIONMAKING
0
5. The authority citation for part 124 continues to read as follows:
Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et
seq.
0
6. Section 124.53 is amended by:
0
a. Removing paragraphs (b), (c), and (e);
0
b. Redesignating paragraph (d) as paragraph (b); and
0
c. Revising newly redesignated paragraph (b).
The revision reads as follows:
Sec. 124.53 State certification.
* * * * *
(b) State certification shall be granted or denied within the
reasonable period of time as required under CWA section 401(a)(1). The
State shall send a notice of its action, including a copy of any
certification, to the applicant and the Regional Administrator.
0
7. Section 124.54 is amended by revising paragraphs (a) and (b) to read
as follows:
Sec. 124.54 Special provisions for State certification and
concurrence on applications for section 301(h) variances.
(a) When an application for a permit incorporating a variance
request under CWA section 301(h) is submitted to a State, the
appropriate State official shall either:
(1) Deny the request for the CWA section 301(h) variance (and so
notify the applicant and EPA) and, if the State is an approved NPDES
State and the permit is due for reissuance, process the permit
application under normal procedures; or
(2) Forward a copy of the certification required under CWA section
401(a)(1) to the Regional Administrator.
(b) When EPA issues a tentative decision on the request for a
variance under CWA section 301(h), and no certification has been
received under paragraph (a) of this section, the Regional
Administrator shall forward the tentative decision to the State. If the
State fails to deny or grant certification and concurrence under
paragraph (a) of this section within the reasonable period of time
provided in CWA section 401(a)(1), certification shall be waived and
the State shall be deemed to have concurred in the issuance of a CWA
section 301(h) variance.
* * * * *
0
8. Section 124.55 is amended by:
0
a. Revising paragraph (a);
0
b. Removing paragraph (b);
0
c. Redesignating paragraphs (c), (d), (e), and (f) as paragraphs (b),
(c), (d), and (e) respectively; and
0
d. Revising newly redesignated paragraphs (b) and (c).
The revisions read as follows:
Sec. 124.55 Effect of State certification.
(a) When certification is required under CWA section 401(a)(1), no
final permit shall be issued:
(1) If certification is denied; or
(2) Unless the final permit incorporates the conditions specified
in the certification.
(b) A State may not condition or deny a certification on the
grounds that State law allows a less stringent permit condition.
(c) A condition in a draft permit may be changed during agency
review in any manner consistent with a corresponding certification. No
such changes shall require EPA to submit the permit to the State for
recertification.
* * * * *
[FR Doc. 2022-12209 Filed 6-8-22; 8:45 am]
BILLING CODE 6560-50-P