Rule2023-20219
Clean Water Act Section 401 Water Quality Certification Improvement Rule
Primary source
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Published
September 27, 2023
Effective
November 27, 2023
Issuing agencies
Environmental Protection Agency
Abstract
Following careful reconsideration of the water quality certification rule the U.S. Environmental Protection Agency (EPA or the Agency) promulgated in 2020, the Agency is finalizing a rule revising and replacing the 2020 regulatory requirements for water quality certification under Clean Water Act (CWA) section 401. This final rule updates the existing regulations to better align with the statutory text and purpose of the CWA; to clarify, reinforce, and provide a measure of consistency with elements of section 401 certification practice that have evolved over the more than 50 years since EPA first promulgated water quality certification regulations; 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. An Executive order signed on January 20, 2021, entitled "Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis," directed the Agency to review the water quality certification rule EPA promulgated in 2020, and this final rule culminates that review. The Agency is also finalizing conforming amendments to the water quality certification regulations for EPA-issued National Pollutant Discharge Elimination System (NPDES) permits.
Full Text
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<title>Federal Register, Volume 88 Issue 186 (Wednesday, September 27, 2023)</title>
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[Federal Register Volume 88, Number 186 (Wednesday, September 27, 2023)]
[Rules and Regulations]
[Pages 66558-66666]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20219]
[[Page 66557]]
Vol. 88
Wednesday,
No. 186
September 27, 2023
Part II
Environmental Protection Agency
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40 CFR Parts 121, 122, and 124
Clean Water Act Section 401 Water Quality Certification Improvement
Rule; Final Rule
Federal Register / Vol. 88 , No. 186 / Wednesday, September 27, 2023
/ Rules and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 121, 122, and 124
[EPA-HQ-OW-2022-0128; FRL-6976.1-03-OW]
RIN 2040-AG12
Clean Water Act Section 401 Water Quality Certification
Improvement Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Following careful reconsideration of the water quality
certification rule the U.S. Environmental Protection Agency (EPA or the
Agency) promulgated in 2020, the Agency is finalizing a rule revising
and replacing the 2020 regulatory requirements for water quality
certification under Clean Water Act (CWA) section 401. This final rule
updates the existing regulations to better align with the statutory
text and purpose of the CWA; to clarify, reinforce, and provide a
measure of consistency with elements of section 401 certification
practice that have evolved over the more than 50 years since EPA first
promulgated water quality certification regulations; 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. An Executive order signed on January 20,
2021, entitled ``Protecting Public Health and the Environment and
Restoring Science to Tackle the Climate Crisis,'' directed the Agency
to review the water quality certification rule EPA promulgated in 2020,
and this final rule culminates that review. The Agency is also
finalizing conforming amendments to the water quality certification
regulations for EPA-issued National Pollutant Discharge Elimination
System (NPDES) permits.
DATES: This action is effective on November 27, 2023.
ADDRESSES: The EPA has established a docket for this action under
Docket ID No. EPA-HQ-OW-2022-0128. All documents in the docket are
listed on the <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> website. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available in hard copy form. Publicly available docket
materials are available electronically through <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
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#84e7f3e5b0b4b5c4e1f4e5aae3ebf2"><span class="__cf_email__" data-cfemail="7a190d1b4e4a4b3a1f0a1b541d150c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. 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?
III. Background
A. Development of Section 401
B. Overview of Section 401 Requirements
C. Prior Rulemaking Efforts Addressing Section 401
D. Summary of Stakeholder Outreach
IV. Final 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
N. Severability
V. Economic Analysis
VI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 14094: Modernizing 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 and Executive Order 14096: Revitalizing Our Nation's
Commitment to Environmental Justice for All
K. Congressional Review Act
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/
or 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 ``waters 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, CWA section 401(d) directs states and authorized
Tribes to include conditions, including ``effluent limitations and
other limitations, and monitoring requirements,'' necessary to assure
that the applicant for a Federal license or 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
final rule uses the term ``waters of the United States''
interchangeably with ``navigable waters''.
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Congress originally created the 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
[[Page 66559]]
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 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.''). Consistent
with the overall cooperative federalism framework of the CWA, section
401 authorizes states and authorized Tribes to play a significant role
in the Federal licensing or permitting process.
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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 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, for
a number of years, the 1971 Rule did not fully reflect the amended
statutory language. 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\
But the 1971 Rule did not reflect or account for water quality
certification practices or judicial interpretations of section 401 that
evolved over the 50 years since 1971.
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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 in
2019, see infra).
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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 (July 13, 2020). 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. The 2020 Rule also deviated sharply from the cooperative
federalism framework central to section 401 and the CWA. While the 2020
Rule reaffirmed some of the Agency's and the courts' prior
interpretations, e.g., the need for a potential point source discharge
into waters of the United States to trigger the section 401 water
quality certification requirement, it rejected nearly 50 years of
Agency practice and over 25 years of 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
disrupted state and Tribal certification programs that evolved over the
last half century. In this final rule, the Agency is returning to those
important core interpretations and practices, such as an ``activity''
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 III 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
several of its provisions that were in tension 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 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, in a legal challenge to
the 2020 Rule, a Federal district court remanded and vacated the 2020
Rule. In Re Clean Water Act Rulemaking, 568 F. Supp. 3d 1013 (N.D. Cal.
2021). While EPA had not asked the court to vacate the 2020 Rule,\12\
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.'' Id. at
1026-27. 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-
[[Page 66560]]
intervenors' application for a stay of the vacatur pending the Ninth
Circuit appeal. Louisiana v. Am. Rivers, 142 S. Ct. 1347 (2022).\13\ As
a result of the Supreme Court's stay, the 2020 Rule once again applied
to section 401 certifications. On February 21, 2023, the U.S. Court of
Appeals for the Ninth Circuit reversed the district court's remand with
vacatur order and remanded the case back to the U.S. District Court for
the Northern District of California for further proceedings.\14\ As a
result of the Ninth Circuit's decision, the 2020 Rule applies until
this final rule goes into effect.
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\12\ See EPA's Motion for Remand Without Vacatur, No. 3:20-cv-
04636-WHA (N.D. Cal. July 1, 2021).
\13\ The Court's stay order does not alter EPA's legal
conclusions discussed in this final rule. The request for a stay
concerned only the appropriateness of the district court's vacatur
of a 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 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 Administrative Procedure Act (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.
\14\ The court found that ``the district court lacked the
authority to vacate the 2020 Rule without first holding it
unlawful.'' In Re Clean Water Act Rulemaking, 60 F.4th 583, 596 (9th
Cir. 2023). The court did not address the merits of the 2020 Rule,
noting that it could not ``engage in the factfinding that might be
needed to identify any harms that keeping the 2020 Rule in place
during a remand might cause. . . .'' Id.
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The Agency is finalizing revisions to the 2020 Rule to better
reflect the cooperative federalism framework and text of the 1972 and
1977 statutory amendments. The final rule also clarifies issues such as
scope of certification and the reasonable period of time for a
certifying authority to act. The final rule modifies 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
CWA section 401 and Executive Order 13990. The Agency is also
finalizing conforming amendments to the water quality certification
regulations for EPA-issued NPDES permits.
II. General Information
A. What action is the Agency taking?
In this action, the Agency is publishing a final rule to replace
its currently effective water quality certification regulations at 40
CFR part 121 and to make conforming edits in 40 CFR parts 122 and 124.
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 Final ``Clean
Water Act Section 401 Water Quality Certification Improvement Rule''
(``Economic Analysis for the Final Rule''), which evaluates the
potential costs and benefits and is available in the rulemaking docket.
The analysis is summarized in section V in this preamble. The Economic
Analysis for the Final Rule is qualitative due to significant
limitations and uncertainties associated with estimating the
incremental costs and benefits of the final rule. See section V of this
preamble for further discussion.
III. 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
observed 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 Federal 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, with the enactment of the Clean Water Act, Congress
significantly
[[Page 66561]]
revised the statutory water quality protection framework.\15\ 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.'' \16\ 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 enacted 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).\17\
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\15\ City of Milwaukee v. Illinois, 451 U.S. 304, 310, 317
(1981).
\16\ 33 U.S.C. 1251(b).
\17\ The conference report 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), 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 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
waters 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 comply with public notice procedures
established for certification requests, and where appropriate,
procedures for public hearings. Id.
If a certifying authority determines that the activity will comply
with the listed provisions in section 401(a)(1), it may grant or waive
certification. See section IV.E in this preamble for further discussion
on the scope of 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.'' 33 U.S.C. 1341(d).
If a certifying authority grants certification with conditions, those
conditions are incorporated into 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.'' Id. Either way, the Federal licensing or permitting
agency may issue the Federal license or permit.
Although Congress provided section 401 certification authority to
the jurisdiction in which the discharge originates, Congress also
recognized that another state or authorized Tribe's water quality may
be affected by the discharge, and it created an opportunity for such a
state or authorized 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
[[Page 66562]]
hearing, the Federal agency is required to condition the license or
permit ``in such manner as may be necessary to ensure compliance with
applicable water quality requirements.'' Id. The Federal 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.\18\
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\18\ Section 401(a)(3) identifies the bases a certifying
authority may rely upon for finding that there is no longer
reasonable assurance. These are changes after certification was
granted in: construction or operation of the facility,
characteristics of the water where the discharge occurs, or the
applicable water quality criteria or effluent limits or other
requirements. Id. at 1341(a)(3).
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Sections 401(a)(4) and (a)(5) describe 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 Federal license or permit. Under section
401, the Federal agency may not suspend the license or permit unless it
holds a public hearing.\19\ Id. Once a Federal 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 upon the entering of a judgment under the
CWA that the facility or activity violated applicable provisions of
section 301, 302, 303, 306, or 307 of the CWA. Id. at 1341(a)(5).
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\19\ Each Federal licensing or permitting agency may have its
own regulations regarding additional processes for suspending a
license or permit.
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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 for EPA. First, EPA
may act as a certifying authority where a state or authorized 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 recommendations on such other state or
authorized Tribe's objections. Id. at 1341(a)(2). Lastly, EPA is
responsible for providing technical assistance upon request from
Federal agencies, certifying authorities, or Federal license or permit
applicants. Id. at 1341(b).
C. Prior Rulemaking Efforts Addressing Section 401
In the last 50 plus years, EPA has undertaken two rulemaking
efforts focused solely on addressing water quality certification, one
of which preceded the 1972 amendments to 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 plus 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) of the FWPCA. 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 . . . provide[d] for the uniform content and
form of certification.'' Id. 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) (``1971 Rule'').
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
effects 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.\20\ If the Regional Administrator
determined that there was ``reason to believe that a discharge may
affect the quality of the waters of any State or States other than the
State in which the discharge originates,'' the Regional Administrator
would notify each affected state within 30 days of receipt of the
application materials and certification. Id. at Sec. Sec. 121.13,
121.16 (2019). In cases where the Federal licensing or permitting
agency held a public hearing on the objection raised by an affected
jurisdiction, the Federal agency was required to forward notice of such
objection to the Regional Administrator no later than 30 days prior to
the hearing. Id. at Sec. 121.15 (2019). At the hearing, the Regional
Administrator was required to submit an evaluation and
``recommendations as to whether and under what conditions the license
or permit should be issued.'' Id.
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\20\ 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 (2019).
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Subpart B also provided that certifying authorities may waive the
certification requirement under two circumstances: first, when the
certifying authority sends written notification expressly waiving its
authority to act on
[[Page 66563]]
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 no more than 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
determined that there was ``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
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 separately 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 (June 7, 1979). 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 only to
certification on EPA-issued NPDES permits. Id. at 32880. EPA developed
these regulations, which included a default reasonable period of time
of 60 days, limitations on certification modifications, and
requirements for certification conditions, 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 the Agency 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 additional rulemaking efforts until
2019, the Agency issued three national guidance documents on the water
quality certification process set forth in 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
1989 Guidance 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 in general. 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 1989 Guidance highlighted a certification denial
issued by the then-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 and 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 in 2019).
Instead of focusing on certifications in the context of wetland
protection, the 2010 Handbook described more broadly how the
certification process could help states and Tribes achieve their water
quality goals. Like the 1989 Guidance, the 2010 Handbook 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. EPA
[[Page 66564]]
rescinded the 2010 Handbook on June 7, 2019, concurrent with the
publication of the third guidance document.
EPA issued the third guidance document in 2019 pursuant to
Executive Order 13868. Clean Water Act Section 401 Guidance for Federal
Agencies, States and Authorized Tribes (June 2019) (``2019 Guidance'')
(rescinded). The 2019 Guidance was meant to ``facilitate consistent
implementation of section 401 and 1971 certification regulations''
based on the view that the 2010 Handbook did not ``reflect current case
law interpreting CWA section 401.'' 85 FR 42213. The 2019 Guidance
focused on three topics: (1) timeline for certification review and
action, (2) the scope of section 401, and (3) the information within
the scope of a certifying authority's review. 2019 Guidance at 1. EPA
rescinded the 2019 Guidance 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, entitled Promoting
Energy Infrastructure and Economic Growth, also directed EPA to propose
new regulations governing section 401 consistent with the policy set
forth in the order to ``promote private investment in the Nation's
energy infrastructure.'' 84 FR 13495, 13496 (April 15, 2019). It is
noteworthy that, even in the context of directing EPA to initiate
changes to a water quality protection rule, the executive order did not
direct the Agency to consider the water quality consequences of any
such changes. EPA issued the proposed rule on August 22, 2019.\21\ EPA
promulgated a final rule on July 13, 2020. Clean Water Act Section 401
Certification Rule, 85 FR 42210 (July 13, 2020) (``2020 Rule'').
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\21\ Updating Regulations on Water Quality Certifications, 84 FR
44080 (August 22, 2019).
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The 2020 Rule reaffirmed that Federal agencies unilaterally set the
reasonable period of time, clarified that the certification requirement
was triggered by a point source discharge from a federally licensed or
permitted activity into ``waters 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 also prohibited a certifying authority from requesting a project
applicant to withdraw and resubmit a certification request and rejected
the scope of certification review (``activity as a whole'') affirmed by
the Supreme Court in PUD No. 1 of Jefferson County v. Washington
Department of Ecology, 511 U.S. 700 (1994), in favor of a more limiting
interpretation (``discharge-only'' approach) favored by two dissenting
Justices in that case.
Following publication, the 2020 Rule was challenged in three
Federal district courts by states, Tribes, and non-governmental
organizations.\22\ Industry stakeholders and eight states intervened on
behalf of EPA to defend the 2020 Rule. On October 21, 2021, following
briefing and a hearing on EPA's motion for remand without vacatur, the
U.S. District Court for the Northern District of California both
remanded and vacated the 2020 Rule. In re Clean Water Act Rulemaking,
568 F. Supp. 3d 1013 (N.D. Cal. 2021) (reversed and remanded by 60
F.4th 583 (9th Cir. 2023)). 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.'' Id. at 1026-27. The court order required a
temporary return to EPA's 1971 Rule until EPA finalized a new rule.\23\
After the Ninth Circuit denied intervenors' motion for stay pending
appeal on February 24, 2022, intervenors filed an application for a
stay of the vacatur pending appeal in the Supreme Court on March 21,
2022. 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). On February 21, 2023, the Ninth Circuit reversed
the remand with vacatur and remanded the case back to the U.S. District
Court for the Northern District of California for further proceedings.
In Re Clean Water Act Rulemaking, No. 21-16958 (9th Cir. February 21,
2023).
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\22\ 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. Pa.); S.C. Coastal Conservation League v. EPA, No. 2:20-cv-
03062 (D.S.C.).
\23\ The two other courts also remanded the 2020 Rule to EPA,
but without vacatur. Order, Delaware Riverkeeper v. EPA, No. 2:20-
cv-03412 (E.D. Pa. August 6, 2021) (determining that vacatur was not
appropriate because the court ``has not yet, and will not, make a
finding on the substantive validity of the Certification Rule'');
Order, S.C. Coastal Conservation League v. EPA, No. 2:20-cv-03062
(D.S.C. August 2, 2021) (remanding without vacating).
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4. Executive Order 13990 and Review of the 2020 Rule
On January 20, 2021, President Biden signed Executive Order 13990,
Protecting Public Health and the Environment and Restoring Science to
Tackle the Climate Crisis (Order). 86 FR 7037 (published January 25,
2021, signed January 20, 2021). The Order provides that ``[i]t is,
therefore, the policy of my 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 Order ``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 Order also revoked Executive Order 13868 of
April 10, 2019 (Promoting Energy Infrastructure and Economic Growth),
which initiated development of the 2020 Rule, and specifically
identified the 2020 Rule for review. 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
[[Page 66565]]
FR 29541 (June 2, 2021). EPA considered several 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 Executive Order; and issues raised in 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 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514-15). The Agency
reviewed the 2020 Rule, determined that the rule should be replaced,
and proposed a replacement rule. Some commenters on the proposed rule
opposed reconsideration of the 2020 Rule and asserted that EPA did not
provide a basis for reconsideration of the 2020 Rule. EPA disagrees.
EPA proposed the replacement rule only after reviewing the statutory
text, legislative history, case law, and public comments. EPA found,
and continues to find, it appropriate to revise the 2020 Rule for
several reasons. First, the 2020 Rule does not represent the best
statutory interpretation of fundamental concepts, such as the scope of
certification. See section IV.E in this preamble for further discussion
on why the 2020 Rule's interpretation of the scope of certification is
inconsistent with the statutory text of section 401 and authoritative
Supreme Court precedent interpreting that text. Further, the 2020 Rule
did not align with the broader water quality protection goals of the
Act or congressional intent behind development and passage of section
401. The 2020 Rule also failed to appropriately address adverse impacts
to state and Tribal water quality, as evidenced in public comment.\24\
See e.g., section IV.E of this preamble for further discussion on the
potential adverse water quality-related impacts of the 2020 Rule's
interpretation of the scope of certification.
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\24\ For example, commenters noted that use of the 2020 Rule's
procedural requirements on certifications for the Army Corps of
Engineers' (Corps) Nationwide General Permits resulted in
certifications with conditions or denials being treated as
constructive waivers. As discussed in section IV.F in this preamble,
the Agency recognizes that a constructive waiver is a severe
consequence; a waiver means that a Federal license or permit that
could adversely impact the certifying authority's water quality
(i.e., cause noncompliance with water quality requirements) may
proceed without any input from the certifying authority.
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Accordingly, EPA is now finalizing revisions to the 2020 Rule to be
fully consistent with the 1972 and 1977 CWA amendments, the Agency's
legal authority, and the principles outlined in Executive Order 13990.
This final rule revises the 2020 Rule to better reflect the CWA's
statutory text, the legislative history regarding section 401, and the
broad water quality protection goals of the Act. In addition, the final
rule clarifies certain aspects of section 401 implementation that have
evolved in response to over 50 years of judicial interpretation and
certifying authority practice, and it supports an efficient and
predictable water quality certification process that is consistent with
the cooperative federalism principles central to the CWA and 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 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 (June 2, 2021).
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, and 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 the 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
gave 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
during this pre-proposal outreach process. Some 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 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 with Tribes over a 90-day
consultation period during development of the
[[Page 66566]]
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 that time, although several Tribes expressed an interest in
receiving additional information and ongoing engagement throughout 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 preferred flexibility in
allowing certifying authorities to waive the 30-day requirement. Some
Tribes expressed ``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 VI.F in this preamble and the ``Summary
Report of Tribal Consultation and Engagement for the Clean Water Act
Section 401 Water Quality Certification Improvement Rule,'' which is
available in the docket for this final rule.
The Agency signed a proposed rule updating the CWA section 401
water quality certification process on June 1, 2022. On June 9, 2022,
the Agency published the proposed rulemaking in the Federal Register,
87 FR 35318 (June 9, 2022), which initiated a 60-day public comment
period that lasted through August 8, 2022. EPA held a virtual public
hearing on July 18, 2022, and hosted a series of stakeholder listening
sessions throughout June 2022, including one listening session for
project proponents on June 14, 2022, three listening sessions for
States and territories on June 15, 22, and 28, 2022, and three
listening sessions for Tribes on June 15, 22, and 28, 2022. The Agency
also hosted a Federal agency listening session on June 14, 2022.
In finalizing the proposed rule, the Agency reviewed and considered
approximately 27,000 comments received on the proposed rulemaking from
a broad spectrum of interested parties. Commenters provided a wide
range of feedback on the proposal, including the substantive and
procedural aspects of the certification process, how the proposed rule
would impact stakeholders, and the legal basis for the proposed rule.
The Agency discusses comments received and responses in the applicable
sections of the preamble to this rule. A complete response to comments
document is available in the docket for this rule (Docket ID No. EPA-
HQ-OW-2022-0128).
IV. Final Rule
EPA is the primary agency responsible for developing regulations
and guidance to ensure effective implementation of CWA programs,
including section 401. See 33 U.S.C. 1251(d), 1361(a). The Agency is
finalizing revisions to 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 CWA. Additionally, the final rule provides 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, the
reasonable period of time, and Federal agency review, the Agency is
finalizing its revisions to clarify and update the regulatory text to
foster a more efficient and predictable certification process. As
demonstrated by the extensive pre-proposal and proposed rule outreach,
this rulemaking is well-informed by stakeholder input on all aspects of
the section 401 certification process.
In addition to the revisions to part 121, EPA is also finalizing
conforming changes to the part 124 regulations governing CWA section
401 certifications for EPA-issued NPDES permits. The final part 121
regulations apply to all Federal licenses or permits subject to CWA
section 401 certification, including EPA-issued NPDES permits.\25\ The
purpose of these conforming changes is to ensure that the part 124
regulations are consistent with the revised provisions of part 121. In
the proposal for this rule, EPA requested comment on whether the Agency
had identified all changes to the part 124 regulations that conflict or
potentially conflict with the proposal and therefore warrant amendment.
EPA is finalizing targeted revisions to specific provisions of the
NPDES regulations at 40 CFR 124.53, 124.54, and 124.55 that implement
section 401. Specifically, EPA is finalizing targeted revisions to 40
CFR 124.53(b) through (e), 124.54(a) and (b), and 124.55(a) through
(d). In addition, EPA is finalizing targeted conforming revisions to
the regulations at 40 CFR 122.4(b), 122.44(d)(3), and
122.62(a)(3)(iii). EPA explains in further detail the reasons for each
conforming change (beyond mere technical revisions) in the preamble
discussion at sections IV.C, IV.D, IV.E, IV.F, IV.G, and IV.I of this
preamble.
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\25\ See Sec. 121.1(c), (f) (defining ``Federal agency'' to
mean ``any agency of the Federal Government to which application is
made for a Federal 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 finalizing several revisions to the definitions section
of the final rule at Sec. 121.1. EPA is finalizing minor revisions to
the definition of ``Administrator,'' located at Sec. 121.1(a), to
remove the reference to authorized representatives. Instead, the Agency
is adding a separate definition for ``Regional Administrator.'' See
Sec. 121.1(i). The Agency is removing the definition for
``certification,'' which was located at Sec. 121.1(b) in the 2020
Rule, because it is not necessary to define the term. Additionally, the
Agency is removing the definitions for ``certified project'' \26\ and
``proposed project'' \27\ because the final rule does not include those
terms. EPA is also clarifying the roles of the stakeholders in the
certification process. First, the Agency is finalizing non-substantive
modifications to the definition of ``Federal agency'' located at final
rule Sec. 121.1(c). Second, the Agency is retaining the term ``project
proponent'' from the 2020 Rule to define the stakeholder seeking
certification. 40 CFR 121.1(h). 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., Corps'
Nationwide Permits, EPA's Construction General Permits). Additionally,
contractors or other agents often seek certification on
[[Page 66567]]
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 finalizing non-substantive changes to
the definition of ``certifying authority'' located at final rule Sec.
121.1(b). Other revisions to regulatory definitions are discussed
throughout this preamble.
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\26\ 40 CFR 121.1(d) (2020).
\27\ 40 CFR 121.1(k) (2020).
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This section of the final rule preamble includes 12 sub-sections
that each discuss: (1) the final rule provisions, (2) a summary of the
Agency's final rule rationale and public comments (where applicable),
and (3) implementation considerations for the final rule provisions
(where applicable). Section IV.A of this preamble discusses when
section 401 certification is required. Sections IV.B through IV.F of
this preamble walk readers through the section 401(a)(1) certification
process in chronological order (i.e., pre-filing meeting request
through the certification decision). Section IV.G of this preamble
discusses the Federal agency review process that follows the section
401(a)(1) certification process. Section IV.K of this preamble
discusses the section 401(a)(2) neighboring jurisdictions process that
occurs after the section 401(a)(1) certification process (if the
certification was granted or waived), but before the Federal license or
permit may be issued. Sections IV.I through IV.J of this preamble
discuss events that may occur after the certification is granted until
the Federal license or permit expires, including certification
modifications (section IV.I of this preamble) and enforcement and
inspection (section IV.J of this preamble). Section IV.H of this
preamble discusses EPA's roles under section 401, including EPA's role
as the certifying authority. Section IV.L of this preamble discusses
the new provisions for Tribes to obtain treatment in a similar manner
as a state (TAS) for section 401 or section 401(a)(2). Section IV.M of
this preamble discusses general implementation considerations for this
final rule. Lastly, section IV.N discusses severability of this final
rule. This final rule is structured in a manner to clearly and
transparently convey to stakeholders the CWA section 401 certification
and post-certification processes.
A. When Section 401 Certification Is Required
1. What is the Agency finalizing?
EPA is finalizing the regulatory text located at final rule Sec.
121.2 to affirm that a ``[c]ertification or waiver is required for any
Federal license or permit that authorizes any activity which may result
in any discharge from a point source into waters of the United
States.'' 40 CFR 121.2. The regulatory text clarifies the circumstances
under which a section 401 certification is required and is 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 discharge from a point
source \28\ into waters of the United States must obtain a section 401
certification or waiver. The Agency made minor revisions to the
proposed text at Sec. 121.2 to better match the statutory language in
section 401(a)(1) and clarify when certification is required, including
adding the word ``Federal'' before license or permit, ``any'' before
both ``activity'' and ``discharge,'' and changing from ``a water of the
United States'' to ``waters of the United States.'' To be clear, these
changes do not represent a change in substance from proposal.
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\28\ For ease of discussion and comprehension, the Agency uses
the term ``discharge'' interchangeably with the more precise
``discharge from a point source'' or ``point source discharge.'' As
discussed in section IV.A.2.c of this preamble, several years after
PUD No. 1, the Ninth Circuit clarified that the type of
``discharge'' that triggers section 401's certification requirement
is a ``point source'' discharge. ONDA v. Dombeck, 172 F.3d 1092 (9th
Cir. 1998).
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2. Summary of Final Rule Rationale and Public Comment
a. 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
``waters of the United States.'' 33 U.S.C. 1341(a)(1). The Agency is
retaining the 2020 Rule's definition for a ``license or permit'' with
minor modifications to clarify that section 401 is required for any
federally licensed or permitted activity which may result in any
discharge into waters of the United States. EPA is also adding the word
``Federal'' before ``license or permit'' throughout the final rule to
further clarify that the license or permit subject to certification
must be Federal.
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, 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).
Section 401 certification is not required for licenses or permits
issued by a state or Tribe that administers a federally approved permit
program. For example, states and Tribes may be authorized to administer
the section 402 NPDES permitting program \29\ or the section 404 dredge
and fill permitting program.\30\ Permits issued by states or Tribes
pursuant to their authorized or 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.
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\29\ 33 U.S.C. 1342(b).
\30\ 33 U.S.C. 1344(g).
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The Agency is not providing 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 Federal
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 permits issued by
the Army Corps of Engineers as well as 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).\31\ See
[[Page 66568]]
section IV.A.3 infra for further discussion on the types of Federal
licenses or permits subject to section 401.
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\31\ 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
discharges of dredged material or fill into waters of the United
States. 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 the final rule.
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b. Potential for a Discharge To Occur
Consistent with the 2020 Rule and the proposal, a certification or
waiver is required for any Federal license or permit that authorizes
any activity which may result in any discharge from a point source into
waters of the United States. 40 CFR 121.2. 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 result in any discharge into the navigable
waters . . .'') (emphasis added); see 40 CFR 121.2. Most commenters
supported the clarification in proposed Sec. 121.2 that section 401 is
triggered by a point source discharge as well as when any Federal
license or permit authorizes any activity that may result in any point
source discharge. A few commenters, seeming to refer to the proposal
preamble as opposed to regulatory text, expressed concern that the
addition of the word ``potential'' would change the universe of
projects requiring 401 certification; EPA disagrees. EPA's approach is
consistent with the plain language of the statutory phrase ``may result
in any discharge.'' The phrase ``may result'' contemplates that both
the presence of, and/or potential for, any discharge triggers the
requirement for a section 401 certification. This approach is also
consistent with the Agency's longstanding implementation of section
401. See, e.g., 85 FR 42236 (July 13, 2020) (``Under this final rule,
the requirement for a section 401 certification is triggered based on
the potential for any federally licensed or permitted activity to
result in a discharge from a point source into waters of the United
States.''); 2010 Handbook at 4 (rescinded in 2019, see supra) (``It is
important to note that [section] 401 is triggered by the potential for
a discharge; an actual discharge is not required.'').
EPA requested comment on whether it should develop a specific
process or procedure for project proponents, certifying authorities,
and/or Federal agencies to follow to determine whether a federally
licensed or permitted activity may result in a discharge and therefore
require section 401 certification. Some commenters asserted that EPA
should not develop such a process because certifying authorities and/or
Federal agencies have well-established practices and experience
determining whether an activity will require a section 401
certification, including one commenter who asserted that an EPA-defined
process could disrupt established efficiencies. Conversely, some
commenters asserted that EPA should develop a process for determining
when a federally licensed or permitted activity may result in a
discharge and require section 401 certification for various reasons,
asserting that such a process would allow for consistent
implementation.
Based on comments, the Agency is not developing a specific process
or procedure for project proponents, certifying authorities, and/or
Federal agencies to follow to determine whether a federally licensed or
permitted activity may result in a discharge and therefore require
section 401 certification. After more than 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
federally licensed or permitted projects 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
``waters 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.
c. Discharge
Consistent with the Agency's longstanding position and the 2020
Rule, EPA is finalizing that a discharge from a point source (or
``point source discharge''), or potential for one, is required to
trigger section 401. See 40 CFR 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. Although the Agency is retaining the same interpretation
of ``discharge'' as the 2020 Rule, to simplify the regulation, the
Agency is removing the definition of ``discharge'' \32\ and instead
incorporating those definitional concepts into the regulatory text at
final rule Sec. 121.2, which discusses when certification is required.
This simpler approach will provide greater clarity about the nature of
discharges that trigger the need for section 401 certification or
waiver.
---------------------------------------------------------------------------
\32\ 40 CFR 121.1(f) (2020).
---------------------------------------------------------------------------
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) (emphasis added). 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 \33\ have long interpreted the definition of ``discharge'' in way
that gives meaning to the word ``includes'' in the definition. EPA and
the Corps have interpreted the definition of ``discharge'' to be
distinct from the term ``discharge of pollutant'' and therefore
encompassing both the discharge without the addition of pollutants and
the ``discharges of pollutants.'' Many commenters supported the
Agency's clear articulation of its longstanding interpretation that any
discharge triggering a section 401 certification does not require an
addition of pollutants. On the other hand, some commenters argued that
eliminating the requirement that there be an addition of pollutants
goes beyond the plain language of CWA section 401. As an initial
matter, the final rule's interpretation of discharge is not a change
from longstanding practice, including the 2020 Rule. See 85 FR 42237
(``The EPA has concluded that unlike other CWA regulatory provisions,
section 401 is triggered by the potential for any unqualified
discharge, rather than by a discharge of pollutants.''). EPA strongly
disagrees that the plain language of section 401 requires that any
discharge triggering section 401 include an addition of pollutants. As
discussed above, the statutory definition of ``discharge'' is broad and
is not limited to a discharge of pollutants. Additionally, as discussed
below, this interpretation is consistent with the text
[[Page 66569]]
of the statute as interpreted by the U.S. Supreme Court.
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\33\ In the context of section 404, the Corps does the day-to-
day work of conducting jurisdictional determinations though EPA has
final administrative authority over the scope of CWA jurisdiction.
Administrative Authority to Construe Sec. 404 of the Federal Water
Pollution Control Act (``Civiletti Memorandum''), 43 Op. Att'y Gen.
197 (1979).
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In S.D. Warren, 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.'' Id.
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 (ONDA) v. Dombeck, 172 F.3d 1092, 1095-99 (9th Cir. 1998)
(``ONDA'').\34\ In ONDA, the Ninth Circuit addressed the issue of
whether ``the term `discharge' in [section 401] includes releases from
nonpoint sources as well as releases from point sources.'' Id. at 1094-
95. The court held that the ``term `discharge' in [section 401] is
limited to discharges from point sources.'' Id. at 1097. The court
found its holding to be consistent with the Supreme Court's holding in
PUD No. 1. 511 U.S. 700 (1994).\35\ The court in ONDA found that
although PUD No. 1 held that certification conditions may address water
quality impacts from the certified activity beyond its discharges, a
triggering discharge is still required for section 401 to apply and
``PUD No. 1 did not broaden the meaning of the term `discharge' under
Sec. 1341.'' Id. at 1098-99.\36\ 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 at
5-6 (rescinded in 2019, see supra) (discussing requirement of section
401 certification when there is a point source discharge).\37\
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\34\ In ONDA, 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.
\35\ See section IV.E of this preamble for further discussion of
on PUD No 1.
\36\ 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 discharge from a point source. Or. Natural
Desert Ass'n v. USFS, 550 F.3d 778 (9th Cir. 2008). 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 [ONDA].'' Id.
at 785.
\37\ The United States argued that section 401 requires the
discharge to be from a point source in briefs filed before the Ninth
Circuit. 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).
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EPA is finalizing the text at Sec. 121.2, including the phrase
``from a point source,'' because it is consistent with the case law
discussed above and the Agency's longstanding approach, and because it
provides greater clarity about the nature of discharges that trigger
the need for section 401 certification or waiver. However, just as the
Agency is not defining in regulation the term ``discharge'' for
purposes of section 401, the Agency is not providing 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.\38\ 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.\39\
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\38\ The CWA defines point source as ``any discernible, confined
and discrete conveyance, including but not limited to any pipe,
ditch, channel, tunnel, conduit, well, discrete fissure, container,
rolling stock, concentrated animal feeding operation, or vessel or
other floating craft.'' 33 U.S.C. 1362(14).
\39\ See, e.g., North Carolina v. FERC, 112 F.3d 1175, 1187
(D.C. Cir. 1997) (holding that withdrawal of water from lake does
not constitute discharge for CWA section 401 purposes).
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Several commenters supported adding the phrase ``from a point
source'' at proposed Sec. 121.2. These commenters stated that the
change is consistent with applicable case law and the text and
structure of the CWA. In addition, these commenters appreciated that
EPA clarified that section 401 was triggered by any discharge from a
point source versus a discharge from a nonpoint source. Conversely,
other commenters opposed adding the phrase ``from a point source'' at
proposed Sec. 121.2, arguing that EPA's reliance on the definition of
point source at 33 U.S.C. 1362(14) implicitly requires the addition of
pollutants to trigger section 401 certification in contravention of SD
Warren. The commenters also asserted that it appears to conflict with
EPA's concurrent proposal that the scope of review is restored to the
``activity as a whole.'' A few commenters suggested that if EPA did not
strike the phrase ``from a point source,'' the rule should state that
certification is triggered regardless of whether the discharge from a
point source results in an addition of pollutants.
EPA disagrees with commenters asserting that the definition of
``point source'' located at 33 U.S.C. 1362(14) implicitly requires the
addition of pollutants. The CWA provides that a point source is a
conveyance ``from which pollutants are or may be discharged.'' 33
U.S.C. 1362(14) (emphasis added). Given the language of the statute, it
is reasonable for EPA to conclude that a discharge of pollutants is not
required for a conveyance to be considered a point source. The Agency
also disagrees that the requirement of a point source discharge to
trigger section 401 conflicts with the scope of review. As discussed in
section IV.E in this preamble, once there is a prerequisite potential
for a point source discharge into waters of the United States, then the
certifying authority may evaluate and place conditions on the
``activity,'' which includes consideration of water quality-related
impacts from both point sources and nonpoint sources. EPA appreciates
commenter suggestions regarding regulatory text that states that a
point source does not need to result in an addition of pollutants. EPA
is declining to add such language in the regulatory text and instead
relying on the statutory definition of ``point source.'' However, EPA
has emphasized this point throughout this section of the preamble and
will continue to do so in implementation of the final rule.
Many commenters who provided input on this topic urged EPA to
revise the regulation to include discharges from both point and
nonpoint sources.
[[Page 66570]]
These commenters stated that the term ``discharge'' as used throughout
the CWA means something broader than discharges from point sources,
citing SD Warren, given that the goal of the CWA is to ``restore and
maintain the chemical, physical and biological integrity of the
Nation's waters.'' See 33 U.S.C. 1251(a). The commenters asserted that
revising the regulation to include discharges from nonpoint sources
will ensure that states and Tribes are able to exercise their section
401 authority to protect water quality from federally licensed or
permitted activities that would result in a nonpoint source discharge.
One commenter encouraged the Agency to use the statutory language in
section 401(a)(1) to describe the type of activity that triggers 401
and asserted that limiting discharges to point sources has no basis in
the statutory text, while another commenter asserted that the Federal
Government and the Supreme Court recognized that all discharges trigger
section 401.
The Agency disagrees that the term ``discharge'' as used in CWA
section 401 means something broader than discharges from point sources
or that it has no basis in the statutory text. As discussed above, the
ONDA court held that the ``term `discharge' in [section 401] is limited
to discharges from point sources.'' Id. at 1097. EPA also disagrees
that the Federal Government has recognized that all discharges trigger
section 401. As noted above, this was the Federal Government's position
before the Ninth Circuit in ONDA, see footnote 37, and EPA has
consistently implemented this view in rulemaking, guidance, and through
its actions pursuant to CWA section 401. EPA emphasizes that this final
rule does not prevent or limit certifying authorities from protecting
their water quality from federally licensed or permitted activities
that would result in nonpoint source discharges. See 33 U.S.C. 1370.
With respect to using section 401 certifications to address nonpoint
source discharges, certifying authorities may consider water quality-
related impacts from nonpoint source discharges after determining that
the project satisfies the prerequisite potential for a point source
discharge into waters of the United States.
d. ``Into the Navigable Waters''
Consistent with the 2020 Rule and proposal, the final rule provides
that section 401 certification is required for Federal licenses or
permits that authorize any activity which may result in any discharge
from a point source into waters of the United States.\40\ 40 CFR 121.2.
Section 401 states that certification is required for any 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).
Requiring section 401 certification for any federally licensed or
permitted activity that may result in any discharge into waters of the
United States is consistent with the plain language of section
401(a)(1) 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 reading is also consistent
with the Agency's longstanding position and practice. See, e.g., 2010
Handbook at 3, 5 (rescinded in 2019, see supra) (``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.'').
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\40\ In County of Maui, Hawaii v. Hawaii Wildlife Fund, et al.,
the Supreme Court addressed the question of whether the CWA requires
a NPDES permit under section 402 of the Act when pollutants
originate from a point source and travel through groundwater before
reaching navigable waters. 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 several factors that
may prove relevant for purposes of determining whether a section 402
permit is required. 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 to navigable
waters would also trigger section 401 if a Federal agency issues the
applicable license or permit.
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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 IV.E
in this preamble, the Agency concludes that while a certifying
authority is limited to considering impacts to ``waters of the United
States'' when certifying compliance with the enumerated provisions of
the CWA, a certifying authority is not so limited when certifying
compliance with requirements of state or Tribal law that otherwise
apply to waters of the state or Tribe beyond waters of the United
States.
3. Implementation
Although the Agency is not providing an exclusive list of all
Federal licenses or permits subject to section 401, EPA recognizes that
there is an array of licenses and permits that may trigger the need to
seek certification. These may include, but are not limited to, CWA
section 404 permits issued by the Corps for the discharge of dredge or
fill material, Rivers and Harbors Act section 10 permits issued by the
Corps for construction of wharfs, piers, etc., Rivers and Harbors Act
section 9 permits issued by the Corps (for the construction of dams and
dikes) and the Coast Guard (for construction of bridges and causeways),
FERC licenses for the construction and operation of non-Federal
hydropower projects, FERC certificates for the construction and
operation of interstate natural gas pipeline projects, shoreline
permits issued by the Tennessee Valley Authority for shoreline
construction activities, EPA-issued CWA section 402 permits for the
discharge of pollutants, nuclear power plant licenses issued by Nuclear
Regulatory Commission, permits for wineries and distilleries issued by
the Alcohol and Tobacco Tax and Trade Bureau, and mine plans of
operation for mining activities on National Forest Service Lands
approved by the Forest Service. See also Economic Analysis for the
Final Rule at section 3.4. As discussed above, the operative question
is whether the federally licensed or permitted activity may result in
any discharge into waters of the United States.
Section 401 is not limited to individual Federal licenses or
permits, but also extends to general Federal licenses and permits such
as CWA section 404 general permits (including Nationwide General
Permits, Regional General Permits, and State Programmatic General
Permits) and CWA section 402 general permits (including the Pesticide
General Permit, Multi-Sector General Permit for stormwater discharges
associated with industrial activity, and the Construction General
Permit for stormwater discharges associated with construction
activity). Several commenters requested clarification that the section
401 certification process only applies to individual Federal licenses
or permits. Another commenter said that it is not clear how the
proposed rule would apply to nationwide permits and state programmatic
permits, and further suggested that these permits be exempted from the
rule. EPA disagrees with these comments. General Federal licenses or
permits that may result in a discharge into waters of the United States
are subject to the same requirements under section 401 as an
[[Page 66571]]
individual Federal license or permit. Section 401 does not provide an
exemption for any Federal licenses or permits that may result in a
discharge into waters of the United States. Additionally, both case law
and prior Agency rulemakings and guidance recognize that general
Federal licenses or permits are subject to section 401 certification.
See U.S. v. Marathon Development Corp., 867 F.2d 96, 100 (1st Cir.
1989) (``Neither the language nor history of section 404(e) of the
Clean Water Act . . . suggests that states have any less authority in
respect to general permits than they have in respect to individual
permits.''); 40 CFR 121.5(c), 121.7(d)(2) and (e)(2) (2020) (describing
requirements for certification on the issuance of a general license or
permit); 2010 Handbook at 29-30 (rescinded in 2019, see supra)
(discussing the application of section 401 to general permits).
Accordingly, EPA cannot adopt commenter suggestions to exempt general
permits from the certification process.
Several commenters requested that EPA affirmatively state that the
section 401 certification process does not apply to ``verifications''
of Federal general permit actions; instead, commenters suggested that
the certification process should occur at the time the Federal general
permit is issued. Federal agencies seek certification on general
permits before the permits are issued. Accordingly, final rule Sec.
121.5 provides the minimum content requirements for all requests for
certification, including certification for the issuance of a general
Federal license or permit. If a certifying authority grants or waives
certification for either a CWA section 402 or 404 general permit, then
entities seeking coverage under that general permit do not need to
separately seek certification before doing so. When a certifying
authority denies certification on a section 402 general permit, EPA can
issue the general permit for the jurisdictions that granted or waived
certification but cannot issue the permit for jurisdictions that denied
certification.\41\ If a certifying authority grants certification with
conditions on an EPA-issued general permit, then the certification with
conditions becomes part of the general permit applicable within the
certifying authority's jurisdiction.
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\41\ If a certifying authority denies certification on an EPA-
issued NPDES general permit, dischargers could always apply for an
individual NPDES permit. That individual permit would also require a
401 certification.
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When a certifying authority denies certification for a CWA section
404 Nationwide or Regional General Permit, the Corps allows specific
projects to be covered by the Nationwide or Regional General Permit if
the project proponent obtains certification from the certifying
authority for that project. In that instance, a project proponent would
submit a request for certification in accordance with final rule Sec.
121.5 for individual Federal licenses or permits. When a certifying
authority grants certification with conditions on a Nationwide or
Regional General Permit, the Corps may either incorporate the
conditions into a state- or Tribe-specific version of the general
permit or require the project proponent to obtain certification from
the certifying authority for that project to qualify for the general
permit.
As discussed above, section 401 is triggered by a potential point
source discharge from a federally licensed or permitted activity into
waters of the United States. A few commenters recommended that the
Agency explicitly acknowledge that point sources include discharges
from CWA section 404 dredge and fill activities (e.g., equipment,
construction activities) in the regulatory text. Considering the broad
applicability of section 401 to all Federal licenses or permits, the
Agency does not find it necessary to focus the regulatory text on point
sources from one type of federally licensed or permitted activity.
Rather, the Agency intends to rely on the definition of point source at
33 U.S.C. 1362(14), which defines point source as ``any discernible,
confined and discrete conveyance . . . from which pollutants are or may
be discharged.'' As emphasized above, a point source does not require
the addition of pollutants, but rather is a conveyance from which
pollutants are or may be discharged. For example, a point source
includes the turbine or tailrace of a hydroelectric dam, and bulldozers
or other construction equipment. In both instances, the equipment
(e.g., turbine, bulldozer) acts as a discernable, confined, or discrete
conveyance that pollutants could be discharged from, but the addition
or existence of such pollutants is not necessary for the equipment to
be considered a point source.
B. Pre-Filing Meeting Request
1. What is the Agency finalizing?
EPA is finalizing the requirement that ``[t]he project proponent
shall request a pre-filing meeting with the certifying authority at
least 30 days prior to submitting a request for certification in
accordance with the certifying authority's applicable submission
procedures, unless the certifying authority waives or shortens the
requirement for the pre-filing meeting request.'' 40 CFR 121.4. This
requirement 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. If a certifying authority does not
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 not defining the ``applicable submission
procedures'' or other procedural aspects of a pre-filing meeting
request or subsequent meeting. Accordingly, the Agency is finalizing
the removal of the 2020 Rule's recommendations for pre-filing meetings.
See 40 CFR 121.4(c) and (d) (2020). The Agency is also finalizing the
removal of regulatory text discussing the certifying authority's
obligations in response to a pre-filing meeting request because the
final rule does not compel any action by the certifying authority. See
40 CFR 121.4(b) (2020).
2. Summary of Final Rule Rationale and Public Comment
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
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
[[Page 66572]]
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 rulemaking, some stakeholders
found the pre-filing meeting request requirement to be essential to an
efficient certification process, while others 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 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). In response to pre-proposal input, the Agency
proposed to retain a pre-filing meeting request provision with
modifications to provide certifying authorities the flexibility to
waive or shorten this requirement.
Many commenters recognized that pre-filing meetings have the
potential to facilitate and help streamline the certification process
through early coordination. Conversely, other commenters expressed
concern that the pre-filing meeting request requirement creates delays
and administrative burden. Some commenters said that, in lieu of an
actual requirement, EPA should only encourage pre-filing meeting
requests. Several commenters supported the flexibility included in the
proposed rule giving certifying authorities the ability to waive or
shorten the requirement.
After considering public comment, EPA is finalizing the pre-filing
meeting request requirement as proposed, with minor, non-substantive
revisions. EPA finds that the final rule's approach to the pre-filing
meeting request requirement both facilitates early coordination in the
certification process while recognizing 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 final rule enables a certifying authority to shorten or waive the
pre-filing meeting request requirement on a case-by-case or categorical
basis. For example, certifying authorities may categorically waive or
shorten the pre-filing meeting request requirement for less complex,
routine projects, as these projects most likely would not benefit from
early engagement between the project proponent and certifying authority
as large, complex projects would. This flexibility reflects both
cooperative federalism principles and the reality that not every
project will meaningfully benefit from a pre-filing meeting. EPA
encourages certifying authorities to make their requests for
certification requirements and the applicable submission procedures
transparent to project proponents, especially in instances where the
pre-filing meeting request requirement was waived, so that submission
of the request for certification goes smoothly in cases where there is
no early coordination through the pre-filing meeting process.
EPA requested comment on whether it should define the pre-filing
meeting request process and ``applicable submission procedures'' for
other certifying authorities in regulatory text. A few commenters
stated that there should be procedures for the pre-filing meeting
requests to increase clarity and consistency, including a list of
minimum information to include in the meeting request. Other commenters
opposed the idea of EPA setting procedures for pre-filing meetings to
maintain flexibility. EPA finds that certifying authorities are best
equipped to determine their procedures and needs for pre-filing
meetings and requests. Like the approach taken under the 2020 Rule, EPA
is not defining the process or manner 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. See infra for discussion on EPA's applicable
submission procedures when EPA acts as the certifying authority. The
Agency is also not defining a pre-filing meeting process (e.g.,
identifying meeting subject matter or meeting participants) nor
retaining the 2020 Rule's recommendations for pre-filing meetings. 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) and
(d) (2020). The Agency is removing these recommendations from the
regulatory text because (1) they were not expressed as, or intended to
be, regulatory requirements, and (2) 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 also requested 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
five days of receipt of the pre-filing meeting request. Many commenters
suggested that certifying authorities should be required to provide a
written response within five days informing the project proponent if a
pre-filing meeting is needed. The Agency is not adding a requirement
that a certifying authority must respond in writing within five days of
receipt of the pre-filing meeting request. Instead, similar to the 2020
Rule, this final rule does not require certifying authorities to grant
or respond to a pre-filing meeting request. See 40 CFR 121.4(b) (2020).
However, the Agency is finalizing removal of the 2020 Rule provision
stating that the certifying authority is not obligated to grant or
respond to a pre-filing meeting request because the 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. Generally, EPA expects that it
will provide written acknowledgement that the pre-filing meeting
request has been received within five 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.
EPA requested comment on whether project proponents should have the
opportunity to participate in determining the need for a pre-filing
meeting request. Some commenters argued that the project proponent
should be involved in determining the need for a pre-filing meeting.
After considering public comments, EPA is not requiring the
participation of the project proponent when determining the need for a
pre-filing meeting request. However, the Agency encourages certifying
authorities to engage with project proponents early in the process as
they can inform decisions based on their knowledge of the project.
3. Implementation
Pre-filing meeting requests ensure that certifying authorities can
receive early notification of requests for certification and discuss
the project and potential
[[Page 66573]]
information needs with the project proponent before the statutory
``reasonable period of time'' for certification review begins (e.g.,
they allow the certifying authority to collect important details about
a proposed project and its potential effects on water quality). The
intent of the pre-filing meeting request provision is to support early
engagement and coordination between certifying authorities and project
proponents as needed. However, EPA recognizes that there are various
project types and complexities. Accordingly, this final rule provides
certifying authorities with the flexibility to waive or shorten the
requirement on a case-by-case or categorical basis. For example,
certifying authorities could either require or waive the pre-filing
meeting request requirement for all projects, specific types of
projects (e.g., projects under 300 linear feet), or types of Federal
licenses or permits (e.g., general permits). EPA recommends that
certifying authorities clearly communicate to project proponents their
expectations for pre-filing meetings requests and waivers (e.g.,
whether they may grant waivers, either categorically or on an
individual basis, and any procedures and/or deadlines for submission of
requests and the grant of waivers) so that project proponents may
clearly and efficiently engage in the certification process. EPA also
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).
Additionally, the final rule allows certifying authorities to
determine appropriate submission procedures for pre-filing meeting
requests. 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.\42\ Second, the Agency
recommends that project proponents include the following information,
as available, in any written request for a pre-filing meeting with EPA:
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\42\ Under final rule Sec. 121.5(b)(7), a project proponent
must submit documentation that a pre-filing meeting was requested,
unless the pre-filing meeting request requirement was waived. See
section IV.C in this preamble for further discussion on the contents
of a request for certification when EPA is acting as the certifying
authority.
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 other 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.
These are good practices for any pre-filing meeting requests to any
certifying authority.
The final rule allows certifying authorities flexibility to
determine the procedures and content of pre-filing meetings. EPA,
however, 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
request for certification to enable the certifying authority to take
final action on the request for certification within the reasonable
period of time. During the pre-filing meeting, project proponents could
share a description and map of the proposed project location and
timeline, as well as discuss potential water quality-related impacts
from the activity. Certifying authorities could use the meeting as an
opportunity to provide information on how to submit requests for
certification (e.g., discuss procedural requirements for submission of
a request for certification). Certifying authorities should also
consider including the Federal agency in the pre-filing meeting process
for early coordination where the Federal agency is not otherwise
legally precluded. Additionally, the final provision provides
flexibility for the certifying authority to determine whether the pre-
filing meeting request requirements are 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.
C. Request for Certification
1. What is the Agency finalizing?
At Sec. 121.5(a), EPA is requiring that all requests for
certification be in writing, signed, and dated and include defined
minimum contents. Unlike the proposed rule, which required a copy of
the draft Federal license or permit for all requests for certification,
the Agency is bifurcating the minimum content requirements for an
individual Federal license or permit and the issuance of a general
Federal license or permit. Under the final rule, if the request for
certification is for an individual Federal license or permit, the
request for certification must include a copy of the Federal license or
permit application and any readily available water quality-related
materials that informed the development of the application. If the
request for certification is for the issuance of a general Federal
license or permit, then the request for certification must include a
copy of the draft Federal license or permit and any readily available
water quality-related materials that informed the development of the
draft Federal license or permit. For all requests for certification,
the final rule requires a certifying authority to send written
confirmation to the project proponent and Federal agency of the date
that a request for certification is received by the certifying
authority in accordance with its applicable submission procedures.
Additionally, the final rule provides that where a project
proponent is seeking certification from EPA when the Agency is the
certifying authority, or from a state or authorized Tribe that does not
specify additional contents of a request for certification (e.g.,
through regulation, forms, etc.), the project proponent must also
submit seven additional components, as applicable, including: (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 or diagram of the
proposed activity site, including the proposed activity boundaries in
relation to local streets, roads, and 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) when
any discharge(s) may commence; (6) A list of all other Federal,
interstate, Tribal, state, territorial, or local agency authorizations
required for the proposed activity and the current status of each
authorization; and (7) Documentation that a pre-filing meeting request
was submitted to the certifying authority in accordance with applicable
submission procedures, unless the pre-filing
[[Page 66574]]
meeting request requirement was waived. 40 CFR 121.5(b).
The Agency is also finalizing the ability for state or Tribal
certifying authorities to define the additional contents of a request
for certification in regulation or another appropriate manner, such as
an official form used for requests for certification, in lieu of
relying on EPA's default list of additional contents. Therefore, under
this final rule, where a project proponent is requesting certification
from a certifying authority other than EPA and that certifying
authority has identified additional required contents of a request for
certification beyond the minimum contents outlined in 40 CFR 121.5(a),
then the request for certification must include those additional
required contents.
The Agency restructured Sec. 121.5 to clarify which components are
required for all requests for certification versus which components
depend on the certifying authority. Section 121.5(a) defines the
minimal contents for all requests for certification, no matter the
certifying authority (i.e., states, Tribes, or EPA). Section 121.5(b)
defines the additional contents in a request for certification when EPA
is the certifying authority. Section 121.5(c) clarifies that if the
certifying authority is a state or authorized Tribe that has identified
additional contents for a request for certification, then the project
proponent must include those additional contents in a request for
certification. Lastly, Sec. 121.5(d) clarifies that if the certifying
authority is a state or authorized Tribe that has not identified
additional contents for a request for certification, then the project
proponent must include those additional contents defined at Sec.
121.5(b) in a request for certification. This structural change is
intended to provide greater clarity for stakeholders in implementation
of this final rule.
2. Summary of Final Rule Rationale and Public Comment
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) (``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). The statute does not define
either ``request for certification'' or ``receipt.''
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 (2020); see 85 FR 42243 (July 13, 2020). 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.
Some commenters asserted that the 2020 Rule's approach provided
clarity about the requirements for project proponents to request
certification and when the reasonable period of time begins. These
commenters stated that the 2020 Rule created a predictable and
transparent certification process by defining a clear list of contents
of certification requests. Conversely, some commenters highlighted
challenges with implementing the 2020 Rule's approach for certification
requests. Commenters stated that 2020 Rule requirements were
disconnected from longstanding cooperative processes established among
stakeholders and created confusion due to differences from certifying
authorities' requirements.
EPA agrees that defining some minimum components of a request for
certification increases clarity and efficiency in the certification
process. Recognizing that some certifying authorities already have or
will define additional requirements for requests for certification they
receive, EPA is only defining minimum contents for all requests for
certification. EPA finds this approach best respects longstanding state
and Tribal processes familiar to stakeholders and enables states and
Tribes to determine their specific information needs. EPA is also
finalizing additional contents for requests for certification to EPA or
states and Tribes that fail to define such additional contents to
provide stakeholders with greater certainty and predictability in the
certification process. The final rule establishes an approach that
provides efficiency for requests for certification, while staying
consistent with cooperative federalism principles and case law.
EPA is also finalizing conforming changes to the part 124
regulations governing the contents of a request for certification of
EPA-issued NPDES permits. EPA proposed to delete Sec. 124.53(b)
because the provision allowed a request for certification to precede
development of a draft NPDES permit, which was inconsistent with the
proposed rule. EPA also proposed to delete Sec. 124.53(c) because the
list of contents at Sec. 124.53(c) differed from the proposed list of
contents. See 87 FR 35336-57 (June 9, 2022). In light of changes in the
final rule, EPA is not deleting in full Sec. 124.53(b) or (c), and
instead is making targeted revisions to be consistent with the final
rule. First, EPA is revising 40 CFR 124.53(b), which provided that when
EPA received 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 revising Sec. 124.53(b) to
clarify that EPA may forward permit applications for individual NPDES
permits to a certifying authority and request certification consistent
with final rule Sec. Sec. 121.4 and 121.5 (e.g., EPA will request a
pre-filing meeting and include contents for a request for certification
consistent with this final rule). It is worth noting that although
Sec. 124.53(b) allows EPA to request certification on a permit
application for individual permits (consistent with this final rule),
this approach is not common practice. Under the final rule and Sec.
124.53(c), EPA may continue to request certification after the draft
individual or general NPDES permit is prepared (and include a copy of
draft permit in the request for certification). Nevertheless, EPA is
retaining Sec. 124.53(b) with the revisions discussed above to provide
stakeholders and EPA with flexibility to request certification prior to
developing a draft individual NPDES permit.
Second, EPA is also revising 40 CFR 124.53(c), which identified the
required contents of a request for certification of an EPA-issued NPDES
permit if a certification had not been received by the time the draft
permit is prepared.
[[Page 66575]]
EPA is revising Sec. 124.53(c) to specify that if certification has
not been requested by the time a draft NPDES permit is prepared, EPA
will send a request for certification consistent with final rule Sec.
121.5, and will include a copy of the draft permit with that request.
EPA is finalizing deletions of the required contents of a request for
certification in Sec. 124.53(c)(2) and (3) because the list of
contents at Sec. 124.53(c)(2) and (3) differ from the list of contents
in Sec. 121.5. Also, as explained in section IV.D in this preamble,
the statement required at Sec. 124.53(c)(3) regarding the reasonable
period of time was not consistent with the approach to the reasonable
period of time at Sec. 121.6.
The following sections discuss the minimum contents for all
requests for certification, state and Tribal authority to define
additional contents, the additional contents defined by EPA and their
application in instances where states and Tribes decline to define such
additional contents, and when a certifying authority is in ``receipt''
of a request for certification.
a. Minimum Contents of a Request for Certification
i. Application or Draft Federal License or Permit
In a change from the proposed rule, EPA is finalizing that all
requests for certification on an individual Federal license or permit
shall include ``[a] copy of the Federal license or permit application
submitted to the Federal agency,'' while all requests for certification
on the issuance of a general Federal license or permit shall include
``[a] copy of the draft Federal license or permit.'' 40 CFR 121.5(a).
EPA proposed in Sec. 121.5(a) that all requests for certification
``shall include a copy of the draft license or permit'' to ensure that
states and Tribes have the critical information to make a timely and
informed certification decision. 87 FR 35332. Many commenters opposed
this approach for various reasons, including but not limited to
possible impacts to certifying authority practice and relationships,
concerns over potential delays, and concerns over how the proposed
approach would work in instances where a Federal agency does not
develop a draft license or permit, particularly for individual Federal
licenses or permits.
In response to comments, EPA decided to partially change the
requirement in the final rule to require that all requests for
certification on an individual Federal license or permit include the
Federal license or permit application at a minimum, instead of the
draft Federal license or permit. See 40 CFR 121.5(a)(1). EPA recognizes
that with respect to general Federal licenses and permits, there often
is no formal ``application,'' and for that reason the final rule allows
the Federal agencies issuing those general Federal licenses and permits
to submit the draft general Federal license or permit to the certifying
authority instead of a Federal license or permit ``application.'' See
40 CFR 121.5(a)(2). EPA's bifurcated approach for requests for
certification for individual Federal licenses or permits and for the
issuance of general Federal licenses or permits promotes clarity and
should minimize delays in the licensing and permitting process, since
EPA anticipates most stakeholders are familiar with starting the
section 401 certification process with a Federal license or permit
application (for individual licenses or permits) or with a copy of the
draft Federal license or permit (for the issuance of a general license
or permit). Additionally, this bifurcation is modeled on the separate
lists for the contents of requests for certification included in the
2020 Rule.
ii. Water Quality-Related Materials
In the final rule, EPA is requiring project proponents to include
``any readily available water quality-related materials that informed
the development of the application'' for requests for certification for
individual Federal licenses or permits. See 40 CFR 121.5(a)(1)(ii). In
the case that the request for certification is for the issuance of a
general Federal license or permit, it must include ``any readily
available water quality-related materials that informed the development
of the draft Federal license or permit.'' See 40 CFR 121.5(a)(2)(ii).
The term ``readily available water quality-related materials that
informed the development of'' either the application or the draft
license or permit refers to existing water quality-related materials
that are in the project proponent's possession or easily obtainable
\43\ and informed the project proponent's development of the
application or draft license or permit. These materials for either
request may include, but are not limited to, water quality baseline
conditions from the project site, sediment and erosion control plans,
restoration plans, alternatives analyses, mitigation plans, modeling,
and/or other materials that have already been developed for the Federal
license or permit application or draft license or permit and would help
inform the certifying authority of the water quality-related impacts
from the activity.\44\
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\43\ For example, this could include maps, studies, or a
reference to a website or literature that contain information that
informed the development of the application or draft license or
permit.
\44\ These examples are not intended to be exhaustive, nor does
EPA expect that all of the example materials listed will be readily
available and/or materials that informed the develop of the
application or draft Federal license or permit in all cases. Rather,
EPA is providing these examples because these are materials that EPA
has previously asked for and found informative when conducting its
reviews of requests for certification.
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The Agency had proposed that, at a minimum, all requests for
certification include ``any existing and readily available data or
information related to potential water quality impacts from the
proposed project.'' EPA intended that 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, would reduce the need for duplicative studies
and analyses. Several commenters supported the requirement that the
request for certification include ``any existing and readily available
data or information related to potential water quality impacts from the
proposed project,'' and a few commenters noted that this information is
important for decision-making and allows certifying authorities to
better evaluate potential impacts of a project. Conversely, many
commenters did not support the inclusion of ``any existing and readily
available data or information related to potential water quality
impacts from the proposed project,'' arguing that it was unclear and
would be difficult to implement. Some of these commenters added that
the requirement would create confusion and delays in the certification
process.
In response to commenter concerns, EPA is adjusting the regulatory
text in the final rule to read ``any readily available water quality-
related materials that informed the development of'' the application or
draft general Federal license or permit. See 40 CFR 121.5(a)(1)(ii),
(a)(2)(ii). EPA recognizes the importance of providing certifying
authorities with critical information to inform their analysis while at
the same time considering important implementation details. First, this
revision provides a predictable endpoint for project proponents because
it is limited to existing data or information that was used in the
development of the Federal license or permit application or the draft
general Federal license or permit. Second, consistent with the
[[Page 66576]]
scope of review under this final rule, this revision limits any such
materials to ``water quality-related materials.'' This will ensure that
project proponents provide certifying authorities with pertinent water
quality-related information to fully inform their certification
analysis. EPA also finds that limiting such materials to ``water
quality-related'' should clarify that project proponents may redact or
exclude personally identifiable information (e.g., personal addresses,
personal finance information) and/or other sensitive information.
A few commenters asserted that while they supported the minimum
requirements of the proposed rule, they believed that the Agency should
not limit certifying authorities to ``any existing and readily
available'' and suggested deleting the phrase or clarifying that it
should not be construed to restrict a certifying authority from
requesting new, additional, or not-yet available data related to the
proposed activity. EPA appreciates these concerns, however, as
discussed above, the Agency finds it reasonable and appropriate for the
rule to balance certifying authority information needs with legitimate
implementation concerns by limiting the default requirements to
existing, readily available information. However, if there are other
materials that did not necessarily ``inform the development'' of the
application or draft Federal license or permit (e.g., section 402
permit factsheets, permit description presentations, etc.), the
certifying authority is free to define such materials in its additional
contents for a request for certification, see discussion infra, or
request such additional information after receiving a request for
certification. A project proponent may also include any additional
information in the request for certification. Furthermore, certifying
authorities are encouraged to use the pre-filing meeting request
process to further communicate appropriate water quality-related
materials that would be helpful in reviewing a request for
certification on an individual Federal license or permit.
b. Additional Contents in a Request for Certification
Consistent with the proposed rule, EPA is finalizing that where a
``certifying authority has identified contents of a request for
certification'' that are relevant to the water quality-related impacts
from the activity, in addition to the minimum requirements discussed
above, ``the project proponent shall include in the request for
certification those additional contents identified prior to when the
request for certification is made.'' 40 CFR 121.5(c). The Agency is
also finalizing a set of additional contents that a project proponent
must include in a request for certification when EPA acts as the
certifying authority. 40 CFR 121.5(b). For further clarity, the
additional contents listed at Sec. 121.5(b) are required in each
request for certification to a state or authorized Tribe that has not
established its own list of requirements. If a state or authorized
Tribe has established its own list for a request for certification,
then EPA's list of additional contents would not apply. The Agency has
restructured Sec. 121.5 to clearly distinguish between requirements
that apply to all requests for certification, see Sec. 121.5(a),
versus requirements that only apply to requests for certification to
EPA or states or Tribes that fail to define additional contents, see
Sec. 121.5(b) and (d), or requirements that apply to requests for
certification to states or Tribes that define additional contents, see
Sec. 121.5(c).
EPA acknowledges that this final rule's approach contrasts with the
approach taken in the 2020 Rule, which defined the contents of a
certification request for all certifying authorities. However, this
final rule is a better--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.
i. State and Tribal Certifying Authorities
Under Sec. 121.5(c), ``[w]here a project proponent is seeking
certification from a certifying authority other than the Regional
Administrator, and that certifying authority has identified contents of
a request for certification in addition to those identified in
paragraph (a) of [Sec. 121.5], the project proponent shall include in
the request for certification those additional contents identified
prior to when the request for certification is made.'' This approach is
consistent with the proposal and the intent of the Act, is reasonable,
is responsive to concerns and considerations raised through the public
comment process, and ultimately is the most efficient path forward.
Many commenters supported certifying authorities having the ability
to define the contents of a request for certification, saying that it
ensures states and Tribes have the information they need to protect
their water quality. Commenters provided a variety of reasons why they
supported this approach, including asserting that it will ensure a
comprehensive review under section 401 in the reasonable period of time
and enable states and Tribes to ensure they have needed information to
determine whether a project will comply with their water quality
requirements. Several commenters argued that this approach is an
improvement over the 2020 Rule's ``one-size fits all'' approach to
request for certification. EPA agrees that certifying authorities are
best suited for determining their needs in making their certification
decisions.
As an initial matter, the Agency finds it is reasonable for states
and Tribes to have the authority to determine what information is
necessary to initiate the certification process under section 401 in
compliance with their own water quality requirements. In order to
effectuate Congress's goals and directives 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 copy of the Federal license or permit application and any
water quality-related materials that informed the development of the
application, is necessary to make an informed decision regarding
protecting their water quality from adverse effects from a federally
licensed or permitted activity. Defining an exclusive list of
components for requests for certification for all certifying
authorities could inhibit a comprehensive review under section 401 in
the reasonable period of time. The diverse nature of Federal licenses
and permits and the variety of potential water quality impacts from
those different types of activities do not lend themselves to a one-
size-fits-all approach.
Indeed, to define an exclusive list of contents would frustrate the
intent of the Act's emphasis on cooperative federalism and lead to
procedural inefficiencies. Specifically, a framework requiring the
reasonable period of time to begin before the certifying authority has
essential information that it has transparently publicized as necessary
to make its own certification decision would be inconsistent with the
language, goals, and intent of the statute. Congress clearly did not
intend section 401 reviews to turn on incomplete applications, and the
[[Page 66577]]
reasonable period of time and one-year backstop were added by Congress
to ensure that ``sheer inactivity by the State . . . will not frustrate
the Federal application.'' H.R. Rep. No. 92-911, at 122 (1972).
Moreover, this approach should be familiar to project proponents who
followed specific requirements established by states and Tribes during
the last approximately 50 years. The Agency's final approach 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.
Some commenters opposed the proposed rule and argued that the
Agency cannot delegate the ability to define additional requirements
for a certification request to certifying authorities under NYSDEC. The
Agency does not agree. In NYSDEC, the Second Circuit never addressed
the separate question of whether EPA or certifying authorities have the
underlying authority to establish--in advance of receiving a request
for certification--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 the Agency 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 define the term ``request for certification,'' EPA and other
certifying authorities may do so in a reasonable manner that
establishes--in advance of receiving the request--a discernable and
predictable set of requirements for a request for certification that
starts the reasonable period of time. No court has considered this
issue and come to the opposite conclusion. The Agency decides,
consistent with principles of cooperative federalism enshrined in the
Act, to continue this lawful, familiar, and time-tested practice.
Most commenters that opposed this approach argued that, as an
implementation matter, EPA is inviting certifying authorities to engage
in the types of practices that were rejected by the Second Circuit in
NYSDEC. Specifically, commenters asserted that the proposed approach
would allow certifying authorities to issue regulations that expand the
required contents of a request for certification without any oversight
or limits and for reasons other than potential water quality impacts.
Other commenters asserted that the proposed approach did not enforce
any transparency requirements against certifying authorities, and,
therefore, certifying authorities would vaguely or broadly define the
minimum contents or require information that was currently unavailable
to stall the start of the reasonable period of time. Still other
commenters argued that the ability of states and authorized Tribes to
define the contents for a request for certification would result in a
patchwork of different requirements, placing burdens on project
proponents, especially for projects that span multiple states. The
Agency acknowledges these concerns and has incorporated reasonable
changes into the final rule that establish sufficient guardrails to
prevent those practices, while also allowing certifying authorities to
act on a request for certification in a timely and informed manner.
First, as identified in Sec. 121.3, the scope of the certifying
authority's review is explicitly limited in the final rule to ``the
water quality-related impacts.'' To clarify that such limitations
extend to the contents of a request for certification, EPA added text
at Sec. 121.5(c) that such additional contents are ``relevant to the
water quality-related impacts from the activity.'' Hence, contents of
requests for certification that are substantively beyond the scope of
water quality-related impacts cannot be reasonably necessary to make an
informed decision regarding the potential water quality-related impacts
from the activity, and thus would not be in conformity with the
regulation. The regulatory text provides flexibility within the scope
for certifying authorities interested in developing their own
additional contents of requests for certification.
Next, Sec. 121.5(c) itself limits the ability of a certifying
authority to request materials to those ``identified prior to when the
request for certification is made.'' Although the Agency is allowing
states and authorized Tribes to define their own additional
requirements for a request for certification, the rule provides a
backstop for those states or authorized Tribes that either do not
identify those additional requirements before the request for
certification is made or change their requirements after the request
for certification is made. In other words, certifying authorities
cannot subsequently modify or add to the required contents of a request
for certification after the request was submitted. This does not mean a
certifying authority could not ask for additional information after a
request for certification is made; rather, a certifying authority
cannot alter the required contents of a request for certification after
it is received.
The Agency expects that those states and authorized Tribes that
choose to identify additional contents in a request for certification
will do so clearly enough to provide project proponents with full
transparency as to what is required. Relatedly, to remain consistent
with legal precedent, states and authorized Tribes should avoid non-
exhaustive or vague lists that a certifying authority could rely on to
continually deem requests incomplete. When developing their lists of
additional contents in a request for certification, EPA recommends that
certifying states and authorized Tribes look to Sec. 121.5(b) for the
list of contents EPA has outlined for requests for certification when
it acts as a certifying authority as a guide to help the certifying
state or authorized Tribe develop its own list.
The Agency originally proposed that the contents of a request for
certification be established by a state or authorized Tribe in
regulation. Several commenters disagreed that certifying authorities
should be limited to defining the contents of a request for
certification in regulation. A few commenters asserted that the
contents do not need to be in a regulation to be transparent or
publicly available, while a few commenters urged EPA to consider that
some state processes are well-known to the regulated community or have
been used for 50 years. A few of these commenters argued that states
use different approaches to defining the contents of a certification
request, including statute, policy documents, application forms, and
guidance. These commenters asserted that placing the contents of a
request in regulation would be an unnecessary burden, time consuming
(e.g., may require legislative approval before going into effect), and
interfere with a state's ability to describe the information in
certification request. Conversely, some commenters asserted that by
allowing the certifying authority to set the minimum requirements, and
requiring those minimum requirements to be in regulation, the project
proponent, the certifying authority, and the public would be fully
informed of when the reasonable time begins and ends. One commenter
asserted that Due Process and basic fairness require certifying
authorities to publish such contents clearly and authoritatively and
asserted that EPA should clarify that certification request
requirements and receipt timing cannot be tied to procedures or
requirements that are not adopted and published as regulations.
[[Page 66578]]
After considering public comments, the Agency is not requiring a
state or authorized Tribe to define additional contents of a request
for certification in regulation. The Agency agrees that the required
contents of a request do not need to be in a regulation to be
transparent, publicly available, and provide project proponents with
adequate notice. The critical inquiry for state and Tribal certifying
authorities to consider is whether the method of identifying the
required contents in a request for certification is clear, objective,
and authoritative such that notions of fairness and notice are served.
The Agency notes that some of the state and Tribal processes are
already well known to the regulated community, have been used for 50
years, and are not in regulation. As a practical matter, states and
authorized Tribes use different approaches to define the required
contents of a request for certification, including statute,
regulations, policy documents, application forms, and guidance. The
burden of putting the contents of a request in regulation can be time
consuming (e.g., may require legislative approval before going into
effect), and may interfere with certifying authorities' ability to
describe the information they expect in a request for certification.
The final rule 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 is
finalizing, the reasonable period of time starts on the date that a
``request for certification'' was received in accordance with the
certifying authority's applicable submission procedures. As discussed
above, the request for certification is defined to mean a request that
contains the contents required by EPA's final regulations and any
additional state or Tribal requirements identified prior to when the
request for certification was made. This approach creates a bright-line
for project proponents seeking to avoid unexpected shifts and identify
the necessary contents for a request for certification with certainty.
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
authorized 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 at 15-16 (rescinded in 2019,
see supra) (``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.'').
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 identified ahead of time, is
not inherently subjective and can be defined by the information
identified by regulation or on a form. 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 following submission regarding whether the request was
``complete.''
The use of a ``completeness'' standard for applications or similar
documents is not a novel concept in CWA implementing regulations.\45\
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 nor 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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\45\ 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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While acknowledging the ruling in NYSDEC, the Agency also notes
that the Fourth Circuit ruled in support of the reasonable period of
time beginning when the certifying authority deems the application
complete. AES Sparrows Point LNG v. Wilson, 589 F.3d 721 (4th Cir.
2009). The final rule approach is consistent with this decision in that
regard, and not inconsistent with NYSDEC, as explained above.
States' and authorized Tribes' ability to define additional
contents of a request for certification should ultimately reduce the
need for certifying authorities to request additional information from
project proponents after the request for certification has been
submitted. The limitations referenced above do not preclude certifying
authorities from asking for more information after they receive a
request for certification and the reasonable period of time begins, if
the certifying authority determines additional information would help
inform its decision-making on the request for certification. However,
these requests for additional information by a certifying authority
should be targeted to information relevant to the potential water
quality-related impacts from the activity. EPA also encourages
certifying authorities and project proponents to discuss the necessary
information that must be part of the request for certification during
the pre-filing meeting process.
ii. Requirements When EPA Is the Certifying Authority
The Agency is finalizing a list of additional contents required for
requests for certification submitted to EPA when EPA acts as a
certifying authority.\46\ This list also applies to requests for
certification submitted to states and authorized Tribes that have not
identified additional contents of a request for certification. As
discussed below, these components contain some similarities to the 1971
Rule and 2020
[[Page 66579]]
Rule, with revisions to provide further clarification and efficiency
for project proponents, 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.''
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\46\ EPA acts as the certifying authority on behalf of states or
Tribes that do not have ``authority to give such certification.'' 33
U.S.C. 1341(a)(1). EPA acts as the certifying authority in two
scenarios: (1) on behalf of Tribes without ``treatment in a similar
manner as a state'' (TAS) and (2) on lands of exclusive Federal
jurisdiction.
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EPA proposed a list of contents that shall be included in requests
for certification to the Regional Administrator shall include the
following, if not already included in the draft license or permit:
1. The name and address of the project proponent;
2. The project proponent's contact information;
3. Identification of the applicable Federal license or permit,
including Federal license or permit type, project name, project
identification number, and a point of contact for the Federal agency;
4. Where 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. 40
CFR 121.5(c)
Proposed Sec. 121.5(b) also provided that ``[w]here a project
proponent is seeking certification from a certifying authority other
than the Regional Administrator, and that certifying authority has not
identified in regulation additional contents of a request for
certification, the project proponent shall submit a request for
certification as defined in [Sec. 121.5(c)].''
In this final rule at Sec. 121.5(b), EPA is finalizing a slightly
different list of additional contents in a request for certification
than what was proposed that combines components proposed and offered as
alternatives in the preamble to the proposed rule, due to the feedback
received in the public comments and the removal of a draft Federal
license or permit from the minimum contents for all requests for
certification. The final list of additional contents for a request for
certification when EPA is the certifying authority (or when states or
Tribes fail to define such additional contents) includes seven
components derived from the proposed approach and the alternative
approach:
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 or diagram of the proposed activity site, including the
proposed activity boundaries in relation to local streets, roads, and
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) when any discharge(s)
may commence;
6. A list of all other Federal, interstate, Tribal, state,
territorial, or local agency authorizations required for the proposed
activity and the current status of each authorization; and
7. Documentation that a pre-filing meeting request was submitted to
the certifying authority in accordance with applicable submission
procedures, unless the pre-filing meeting request requirement was
waived.
A few commenters agreed that EPA's additional contents for a
request for certification should be the default contents for a request
to a certifying authority that does not define additional contents.
However, some commenters expressed concern that EPA's default list of
additional certification request components was inadequate and did not
capture all the items a state or authorized Tribe may need for its
analysis. One commenter asserted that EPA's default additional
components create a presumption that EPA's list is sufficient for a
request for certification, and recommended that EPA make clear that
states and authorized Tribes have the authority to specify the contents
of a request for certification where they are the certifying authority.
To provide transparency and predictability, the final rule requires
project proponents seeking certification from a state or authorized
Tribe that has not identified additional contents of a request for
certification to submit the additional contents identified at Sec.
121.5(b). See Sec. 121.5(d). However, this final rule does not create
the presumption that the contents identified at Sec. 121.5(b) will be
sufficient for all scenarios and all certifying authorities. Rather,
the Agency is providing a list of minimum contents as a baseline and
allowing state and Tribal certifying authorities to define additional
contents for each request for certification. As discussed above, the
additional contents in Sec. 121.5(b) would not apply where a
certifying authority has established its own list of requirements for a
request for certification. However, EPA recommends that certifying
authorities wishing to establish their own lists of additional contents
of requests for certification consider the requirements outlined by the
Agency in Sec. 121.5(b), as these contents reflect the additional
information deemed necessary by EPA for the Agency to initiate its
analysis of a certification request on a Federal license or permit
application.
EPA requested comment on an alternative list of additional contents
to accompany a request for certification on a Federal license or permit
application. 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. 87 FR 35336.
A few commenters did not find the additional requirements for the
alternative approach to be necessary, because the information would
already be included in the application or under current state
requirements. On the other hand, some commenters provided suggestions
for the default additional contents. A few commenters recommended
supplementing the default additional request components with the six
additional components listed in the proposal preamble as an
alternative, and as suggested by one of these commenters, revising as
appropriate to address any duplication.
EPA does not agree with commenters asserting that additional
components are unreasonable. While some commenters said doing so was
unnecessary, the relevant inquiry is whether EPA's
[[Page 66580]]
inclusion of additional components is ``reasonable,'' not whether it is
``necessary.'' EPA anticipates that the list of additional required
contents at Sec. 121.5(b) is appropriate for EPA as a certifying
authority and as a default list for those other certifying authorities
that have not identified additional required contents for requests for
certification. EPA also does not intend for this list to be
duplicative. Accordingly, EPA has added text at final rule Sec.
121.5(b) to clarify that a project proponent only needs to provide the
additional components where such components are not already included in
the minimal contents of a request for certification defined at Sec.
121.5(a). For example, if a map or diagram of the proposed activity
site is part of the Federal license or permit application, the project
proponent would not be required to submit a second copy of the map or
diagram.
EPA agrees with commenters who suggested that the Agency combine
the proposed and alternative lists of additional contents. As discussed
below, the Agency has revised the list of additional contents to reduce
duplication among the minimal contents of a request for certification.
Additionally, the Agency recognizes that some of the components listed
at Sec. 121.5(b) may not be applicable if the project proponent is a
Federal agency seeking certification on the issuance of a general
Federal license or permit. Accordingly, the Agency has added regulatory
text at Sec. 121.5(b) to clarify that only the applicable additional
components need to be included in a request for certification to EPA.
First, based on commenter recommendations, EPA is not finalizing
the components of the proposed list that are expected to be captured by
the requirements in Sec. 121.5(a), such as the name and address of the
project proponent, the project proponent's contact information, and
identification of the applicable Federal license or permit, including
the Federal license or permit type, project name, project
identification number, and a point of contact for the Federal agency.
Although this type of background information was included in the 1971
Rule and the 2020 Rule, this information is unnecessary and redundant
to both the Federal license or permit application and draft Federal
license or permit.
Second, similar to the 2020 Rule, the Agency is finalizing the
requirement that the project proponent provide a list of other
authorizations that are required for the proposed activity and the
current status of such authorizations. This requirement will allow the
Agency to assess how water quality impacts may be addressed through
other Federal, state, Tribal, or local authorizations and potentially
reduce redundancies or inconsistencies between the certified Federal
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 Federal licenses or permits that would be used by project
applicants in the future. 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.
Third, like the 2020 Rule, the Agency is finalizing a requirement
that the project proponent submit documentation that it requested a
pre-filing meeting, unless the 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 IV.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.
Fourth, the Agency is adding five components that were offered as
alternatives to the final rule text to provide EPA with information
about the proposed activity, including a description of the proposed
activity, the location of any discharge from the proposed activity, a
map or diagram of the proposed activity site, a description of current
activity site conditions, and the date(s) on which the proposed
activity will begin and end. These components are similar to those in
the 2020 Rule, see Sec. 121.5(b)(4) (2020), and the 1971 Rule, see
Sec. 122.22(b), (d) (2019). These components are necessary to initiate
EPA's analysis of a request for certification on a Federal license or
permit application.
The Agency is not including the sixth alternative component offered
at proposal, which would have required a project proponent to submit
any additional information to inform whether any discharge from the
proposed activity will comply with applicable water quality
requirements. EPA finds that such a component would be too vague and
would not provide project proponents with a clear, predictable set of a
requirements for a request for certification. However, if EPA later
determines additional information would be helpful to inform its
decision-making on a request for certification, this final rule does
not preclude EPA from asking for additional information after a
certification request is submitted. But EPA cannot require additional
components, aside from contents listed at Sec. 121.5(a) and (b), in a
request for certification.
The Agency is also finalizing the removal of the contents of the
2020 Rule at Sec. 121.5(b)(5), (8), and (9); the 1971 Rule also
contained similar contents to Sec. 121.5(b)(5) of the 2020 Rule. See
40 CFR 121.22(c), (e) (2019). Section 121.5(b)(5) of the 2020 Rule,
which required the project proponent to ``[i]nclude a description of
any methods and means proposed to monitor the discharge and the
equipment or measures planned to treat, control, or manage the
discharge,'' is unnecessary since the final rule requires a project
proponent to provide the Federal license or permit application or draft
Federal license or permit, as appropriate, and any readily available
water quality-related materials that informed the development of the
application or draft Federal license or permit in its request. The
Agency also finds it unnecessary to retain the requirements at Sec.
121.5(b)(8) and (9) of the 2020 Rule. In 2020, EPA required the project
proponent to include an attestation statement that the project
proponent ``certifies that all information contained herein is true,
accurate, and complete to the best of my knowledge and belief'' 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. 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 final contents for a request
for certification include either the license or permit application or a
copy of the draft Federal license or permit, which presumably
incorporates accurate information about the proposed project.
Additionally, Sec. 121.5(b)(9) of the 2020 Rule, which required the
project proponent to include a statement that it ``hereby requests that
the certifying authority review and take action on this CWA 401
certification request within the applicable reasonable period of
time,'' is unnecessary because a project proponent is required to
submit a request for certification as defined in this final rule.
Submitting a request for certification as defined in this final rule
should be a clear
[[Page 66581]]
indication to the certifying authority that the project proponent is
seeking certification.
A few commenters provided detailed, lengthy lists of additional
contents, beside the seven that EPA is finalizing, that could be
required by certifying authorities, including but not limited to
various plans, photographs, field surveys, construction methods, and
maps. Another commenter asserted that a request should include the
requirements for a complete application that are at least as stringent
as Federal agencies making similar determinations, such as the Corps'
requirements for complete CWA section 404 permit applications.
EPA appreciates commenter suggestions and while EPA is not
including additional contents in Sec. 121.5(b), aside from those
discussed above, the Agency emphasizes that certifying authorities are
free to define additional contents for their requests for
certification. As discussed in the prior subsection, EPA has adjusted
the language in the final rule to increase flexibility for certifying
authorities to define the additional contents of a request for
certification in regulation or another appropriate manner, such as an
official form used for requests for certification. Such additional
contents should be communicated clearly and transparently for project
proponents to be aware of before submitting a request for
certification.
c. Defining ``Receipt'' of a Request for Certification
The Agency is clarifying at Sec. 121.6(a) that ``the reasonable
period of time begins on the date that the certifying authority
receives a request for certification, as defined in Sec. 121.5, in
accordance with the certifying authority's applicable submission
procedures.'' In proposed Sec. 121.6(a), EPA stated that ``the
reasonable period of time shall begin upon receipt of a request for
certification.'' The Agency proposed to define ``receipt'' at Sec.
121.1(k) to mean ``the date that a request for certification, as
defined by the certifying authority, is documented as received by a
certifying authority in accordance with the certifying authority's
applicable submission procedures.'' The final rule merely simplifies
the proposed rule's approach to when the reasonable period of time
begins by placing the definition of receipt in Sec. 121.6(a).
The statute provides that the reasonable period of time begins
``after receipt of such request.'' 33 U.S.C. 1341(a)(1). The statute
does not define the term ``receipt of such request,'' nor does it
define how a request for certification must be received by a certifying
authority. The 1971 Rule did not address or define the term
``receipt,'' however, the Agency opted to define the term in the 2020
Rule. 40 CFR 121.1(m) (2020). 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.
Consistent with the statutory text, the reasonable period of time
begins on the date that the certifying authority receives a request for
certification, as defined at Sec. 121.5, and is submitted in
accordance with the certifying authority's applicable submission
procedures. 40 CFR 121.6(a). As discussed in more detail below, the
certifying authority must send written notification to the project
proponent and Federal agency of the date the request for certification
was received.
Some commenters asserted that, due to the wide variety of project
types, the regulations should not dictate when the reasonable period of
time begins. These commenters added that states and authorized Tribes
should determine when the reasonable period of time starts, and when
they have sufficient information to conduct a proper review, provided
it does not exceed the statutory one-year limit. As described above,
EPA provides in the final rule at Sec. 121.6(a) that ``the reasonable
period of time begins on the date that the certifying authority
receives a request for certification, as defined in Sec. 121.5, in
accordance with the certifying authority's applicable submission
procedures.'' This approach provides certifying authorities with a role
in determining when the clock starts (i.e., by defining additional
contents of a request for certification and applicable submission
procedures), while also providing transparency and consistency around
the process for requesting certification and starting the reasonable
period of time for project proponents.
Some commenters stated that the proposed definition of ``receipt''
would limit predictability and could allow certifying authorities to
delay the certification process by saying they have not received the
request for certification in full and in accordance with its submission
procedures. A few commenters asserted that the Second Circuit held that
allowing states to determine when requests are ``complete'' could
create a ``subjective standard'' in violation of the bright line
requirements of section 401. NYSDEC, 884 F.3d at 455-56. While not
retaining a definition of ``receipt'' in the final rule, EPA maintains
that consistent with section 401(a)(1), the reasonable period of time
clock starts when the certifying authority has received a request for
certification, as defined in Sec. 121.5 of the final rule, in
accordance with the certifying authority's applicable submission
procedures. See 40 CFR 121.6(a). EPA disagrees with commenter
assertions that having the certifying authority determine when it has
received a request for certification will lead to certifying
authorities subjectively determining when a request for certification
has or has not been submitted. Rather, this final rule expressly
rejects such practices by limiting requests for certification from
state and Tribal certifying authorities with additional required
components to those that are identified prior to when the request for
certification is made. See 40 CFR 121.5(c). This does not mean a
certifying authority could not ask for additional information after a
request for certification is made; rather, a certifying authority
cannot alter the required contents of the request for certification
after it is received. Similarly, the Agency disagrees that the concept
of ``completeness'' is inherently subjective. As discussed above,
having the certifying authority establish a list of additional required
contents for a request for certification before receiving a request for
certification, and therefore determine when the request has been
received, is not at odds with the decision from the Second Circuit. See
discussion supra.
The project proponent must submit the request for certification 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 limiting
or defining a set of standard applicable submission procedures. The
certifying authority may provide these applicable submission procedures
in regulations or another appropriate manner, such as an official form
used for requests for certification. In whichever way the certifying
authorities
[[Page 66582]]
provide their procedures, EPA encourages certifying authorities to
communicate them transparently and publicly. EPA recommends that the
certifying authority and project proponent communicate with each other
(e.g., during any pre-filing meeting engagement) to discuss submission
procedures and contents of the request for certification.
As mentioned above, once a certifying authority receives a request
for certification, the certifying authority must send written
confirmation to the project proponent and the Federal agency of the
date that the request for certification was received. The Agency
proposed similar language at Sec. 121.5(d). However, the Agency has
moved this provision to Sec. 121.6(a) to better clarify that the
reasonable period of time does not start with the written confirmation
from the certifying authority. Rather, consistent with section
401(a)(1), it begins on the date that the project proponent submitted
the request for certification. EPA recognizes that the final rule no
longer includes a strict period for negotiation on the length of the
reasonable period of time between the certifying authority and the
Federal agency at the start of the reasonable period of time, which
means that the certifying authority may not promptly notify the project
proponent and the Federal agency that the request for certification was
received. Accordingly, the Agency is removing the regulatory text
located at Sec. 121.6(b) in the 2020 Rule, which required 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. Under this final rule, the certifying authority is responsible
for confirming the date of receipt of a request for certification with
the project proponent and Federal agency. However, the final rule
approach will not lead to the same level of confusion as the 2020 Rule
requirement for the project proponent to submit the request for
certification concurrently to the certifying authority and the Federal
agency. Under the 2020 Rule, although the certifying authority was
responsible for determining whether a request was received, a project
proponent could submit a deficient certification request to the Federal
agency and spur the Federal agency to communicate an inaccurate date of
receipt for the request. The final rule approach avoids this potential
miscommunication by relying on the certifying authority, rather than
the project proponent, to communicate the date of receipt of a request
for certification with the project proponent and Federal agency.
3. Implementation
The Agency recommends that project proponents, certifying
authorities, and Federal agencies work together to determine the most
efficient and effective means of communication before the certification
process begins to ensure a common understanding of the contents of a
request for certification. The final rule's pre-filing meeting process
provides an opportunity for such early engagement to identify and
discuss the appropriate request for certification requirements. Because
the final rule allows certifying authorities to require additional
contents in a request for certification as long as they are identified
prior to when the request for certification is made, certifying
authorities should make their additional contents for request for
certification and applicable submission procedures readily available
and transparent to the regulated public. EPA intends to support
certifying authority efforts to make the requests for certification
requirements transparent. For example, EPA could provide links to other
certifying authorities' websites on EPA's website or maintain an up-to-
date list of points of contact to connect project proponents with the
appropriate certifying authority.
Another way a certifying authority may further support the
efficient review of requests for certification would be for the
certifying authority to make available draft certification conditions
that project proponents can consider while developing their project
design plans and request for certification materials. Project
proponents can save time and money by preparing for and mitigating the
impacts from an activity that will not comply with applicable water
quality requirements. EPA acknowledges that not all certifying
authorities will be able to provide conditions that anticipate
potential water quality impacts from various types of activities that
will not comply with their applicable water quality requirements;
however, some certifying authorities have made example certification
conditions for certain project types or waterbodies available prior to
receipt of requests for certification for those project types or
geographic areas.
The Agency wishes to clarify several implementation questions or
issues related to the request for certification that have previously
arisen or were revealed through public comment on this rulemaking.
First, with regards to project proponents seeking project-specific
certification to obtain authorization under a Corps general permit,
project proponents must submit the minimum contents defined at Sec.
121.5(a)(1). For example, if a state or authorized Tribe denied
certification on the issuance of a Corps' general permit, then to
obtain authorization under that general permit, the project proponent
would need to obtain a project-specific certification or waiver from
the state or
[…truncated; see source link]Indexed from Federal Register on September 27, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.