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Proposed Rule2022-12209

Clean Water Act Section 401 Water Quality Certification Improvement Rule

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Published

June 9, 2022

Issuing agencies

Environmental Protection Agency

Abstract

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.

Full Text

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<title>Federal Register, Volume 87 Issue 111 (Thursday, June 9, 2022)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>
(our preferred method). Follow the online instructions for submitting
comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#4f0018620b202c242a3b0f2a3f2e61282039">[email&#160;protected]</a>. Include Docket ID No. EPA-HQ-OW-
2022-0128 in the subject line of the message.
<bullet> 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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a>, 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: <a href="/cdn-cgi/l/email-protection#d8bbafb9ece8e998bda8b9f6bfb7ae">[email&#160;protected]</a>.

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 <a href="https://www.epa.gov/environmentaljustice/learn-about-environmental-justice">https://www.epa.gov/environmentaljustice/learn-about-environmental-justice</a>.
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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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> (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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> 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 <a href="https://www.epa.gov/dockets/commenting-epa-dockets">https://www.epa.gov/dockets/commenting-epa-dockets</a>.

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 <a href="https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification">https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification</a>. 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: <a href="https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification">https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification</a>.
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 <a href="/cdn-cgi/l/email-protection#42213523767273022732236c252d34">[email&#160;protected]</a>. 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 <a href="https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification">https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification</a>. While EPA expects the hearing
to go forward as set forth above, please monitor our website or contact
<a href="/cdn-cgi/l/email-protection#50332731646061103520317e373f26">[email&#160;protected]</a> 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 <a href="/cdn-cgi/l/email-protection#23405442171312634653420d444c55">[email&#160;protected]</a> 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

[[Page 35321]]

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\
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

\18\ Each Federal licensing or permitting agency may have its
own regulations regarding additional processes for suspending a
license or permit.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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'').
---------------------------------------------------------------------------

\20\ Updating Regulations on Water Quality Certifications, 84 FR
44080 (August 22, 2019).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

\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).
---------------------------------------------------------------------------

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 <a href="https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/">https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/</a> (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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

\26\ 33 U.S.C. 1342(b).
\27\ 33 U.S.C. 1344(g).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

\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.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------

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, physica

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