Rule2024-27981
Establishing Reasonable Period of Time and Clarifications Regarding Clean Water Act Section 401(a)(1) Certifications for Hydroelectric Proceedings
Primary source
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Published
December 5, 2024
Effective
January 6, 2025
Issuing agencies
Energy DepartmentFederal Energy Regulatory Commission
Abstract
In this final rule, the Federal Energy Regulatory Commission (Commission) amends its regulations to clarify that for any proceedings before the Commission that require a water quality certification pursuant to section 401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act), the reasonable period of time during which the certifying authority may act on the water quality certification request is one year from the certifying authority's receipt of the request. The final rule also clarifies that all Commission authorizations that have the potential to discharge into waters of the United States require a section 401 water quality certification or waiver, including, depending on the activity being proposed, authorizations associated with hydropower exemptions, amendments, and surrenders. Finally, the final rule provides updated terminology in the Commission's hydropower regulations, updates the timing of the filing requirements for the Commission's expedited hydropower licensing process, and in response to comments on the Commission's Notice of Proposed Rulemaking, removes inconsistent language from parts 5 and 7 of the Commission's regulations.
Full Text
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[Federal Register Volume 89, Number 234 (Thursday, December 5, 2024)]
[Rules and Regulations]
[Pages 96524-96531]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-27981]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 4, 5, 6, and 7
[Docket No. RM24-5-000]
Establishing Reasonable Period of Time and Clarifications
Regarding Clean Water Act Section 401(a)(1) Certifications for
Hydroelectric Proceedings
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Final rule.
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SUMMARY: In this final rule, the Federal Energy Regulatory Commission
(Commission) amends its regulations to clarify that for any proceedings
before the Commission that require a water quality certification
pursuant to section 401(a)(1) of the Federal Water Pollution Control
Act (Clean Water Act), the reasonable period of time during which the
certifying authority may act on the water quality certification request
is one year from the certifying authority's receipt of the request. The
final rule also clarifies that all Commission authorizations that have
the potential to discharge into waters of the United States require a
section 401 water quality certification or waiver, including, depending
on the activity being proposed, authorizations associated with
hydropower exemptions, amendments, and surrenders. Finally, the final
rule provides updated terminology in the Commission's hydropower
regulations, updates the timing of the filing requirements for the
Commission's expedited hydropower licensing process, and in response to
comments on the Commission's Notice of Proposed Rulemaking, removes
inconsistent language from parts 5 and 7 of the Commission's
regulations.
DATES: The rule is effective January 6, 2025.
FOR FURTHER INFORMATION CONTACT:
Amber Leasure-Earnhardt (Legal Information), Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426, (202) 502-6891, <a href="/cdn-cgi/l/email-protection#1958747b7c6b37557c786a6c6b7c345c786b7771786b7d6d597f7c6b7a377e766f"><span class="__cf_email__" data-cfemail="41002c2324336f0d2420323433246c0420332f292033253501272433226f262e37">[email protected]</span></a>
Miranda Millerick (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8781, <a href="/cdn-cgi/l/email-protection#e4a98d96858a8085caa98d888881968d878fa482819687ca838b92"><span class="__cf_email__" data-cfemail="1f52766d7e717b7e31527673737a6d767c745f797a6d7c31787069">[email protected]</span></a>
Michael Tust (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-6522
Jody Callihan (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8278
Andrea Claros (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8171
SUPPLEMENTARY INFORMATION:
Paragraph Nos.
I. Background........................................ 2
II. Notice of Proposed Rulemaking.................... 6
III. Discussion...................................... 8
A. Reasonable Period of Time..................... 8
B. Hydropower Exemptions......................... 10
C. Terminology................................... 10
D. Timing of Section 401 Filing Requirements 11
Under Parts 4 and 5.............................
E. Timing of Section 401 Filing Requirements 13
Under Part 7....................................
F. Additional Comments Under Parts 6 and 7....... 15
IV. Regulatory Requirements.......................... 19
A. Information Collection Statement.............. 19
B. Environmental Analysis........................ 20
C. Regulatory Flexibility Act.................... 21
D. Document Availability......................... 23
E. Effective Date and Congressional Notification. 23
I. Background
A. Clean Water Act Section 401
1. Section 401 of the Clean Water Act (CWA) is a direct grant of
authority to states and authorized Tribes \1\ (i.e., certifying
authorities) to review for compliance with appropriate federal, state,
and Tribal water quality requirements any discharge into waters of the
United States that may result from a proposed activity that requires a
[[Page 96525]]
federal license or permit.\2\ Section 401(a)(1) of the CWA prohibits a
federal agency from issuing a federal license, permit, or other
authorization for a project or activity that may result in a discharge
into waters of the United States, such as a Federal Energy Regulatory
Commission (Commission) order issuing a license for a hydroelectric
project or order authorizing an amendment or surrender of a license,
unless the appropriate certifying authority either grants certification
or waives its certification authority.\3\ Under the Clean Water Act, if
the certifying authority ``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,'' then certification is
waived.\4\
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\1\ ``Authorized Tribes'' refers to Indian Tribes that have been
approved for ``treatment as a state'' status under the CWA.
Authorized Tribes may also have the authority under section 401 to
issue water quality certifications.
\2\ 33 U.S.C. 1341(a)(1).
\3\ Id.
\4\ Id.
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2. The January 2021 Executive Order 13990 entitled Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis, among other things directed the Environmental
Protection Agency (EPA) to review the water quality certification rule
EPA promulgated in 2020 under section 401 of the CWA.\5\ In compliance
with the Executive Order, on September 14, 2023, the EPA issued a final
Clean Water Act Section 401 Water Quality Certification Improvement
Rule (Certification Improvement Rule),\6\ which revised its regulations
under 40 CFR part 121.\7\ The Certification Improvement Rule applies to
all actions after the effective date of the rule.
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\5\ Exec. Order No. 13990, 86 FR 7037 (Jan. 25, 2021). EPA
issued the Clean Water Act Section 401 Certification Rule on June 1,
2020. 85 FR 42210 (July 13, 2020).
\6\ 88 FR 66558 (Sept. 27, 2023).
\7\ The rule was published in the Federal Register on September
27, 2023, and became effective 60 days after publication on November
27, 2023.
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B. Reasonable Period of Time
3. Regarding the statutory reasonable period of time in which a
certifying authority must act on a request for certification, section
121.6(b) of EPA's Certification Improvement Rule contemplates that the
federal agency and certifying authority will establish a reasonable
period of time on a case-by-case basis. If the federal agency and
certifying authority do not agree, the rule sets a six-month default
reasonable period of time.\8\ The rule, however, also provides that if
a federal agency establishes a one-year reasonable period of time by
regulation, the maximum time allowed under the CWA, the federal agency
may use that one year as the reasonable period of time without
negotiating with certifying authorities.\9\
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\8\ 88 FR 66663.
\9\ Id. at 66588.
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4. With respect to licensing proceedings, the Commission
promulgated regulations providing for a categorical one-year reasonable
period of time for action by a certifying authority, as reflected in
subsection 4.34(b)(5)(iii) of its regulations in 1987,\10\ subsection
5.23(b)(2) of its regulations in 2003,\11\ and subsection 7.2(b)(3)(ii)
of its regulations in 2019.\12\ Although it is the Commission's
practice to apply a one-year reasonable period of time for water
quality certification applications in all hydropower proceedings where
they are required,\13\ the current regulations are silent as to certain
Federal Power Act (FPA) proceedings, including those regarding
hydropower exemptions (a subcategory of licensing proceedings),
amendments to hydropower licenses, or surrenders of hydropower
licenses, some of which may trigger section 401 of the CWA.
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\10\ Waiver of the Water Quality Certification Requirements of
Section 401(a)(1) of the Clean Water Act, Order No. 464, 52 FR 5446
(Feb. 23, 1987), FERC Stats. & Regs. ] 30,730 (1987) (cross-
referenced at 38 FERC ] 61,146); 18 CFR 4.34(b)(5)(iii). Part 4 of
the Commission's regulations governs applicants using the
traditional licensing process and the alternative licensing process.
\11\ Hydroelectric Licensing under the Fed. Power Act, Order No.
2002, 68 FR 51070 (Aug. 25, 2003), Order No. 2002-A, 69 FR 5268
(Feb. 4, 2004), 104 FERC ] 61,109 (2003), order on reh'g, 106 FERC ]
61,037 (2004); 18 CFR 5.23(b)(2). Part 5 governs applicants using
the integrated licensing process.
\12\ Hydroelectric Licensing Reguls. under the Am.'s Water
Infrastructure Act of 2018, Order No. 858, 84 FR 17064 (Apr. 24,
2019), 167 FERC ] 61,050 (2019); 18 CFR 7.2(b)(3)(ii). Part 7
governs applicants using the expedited licensing process for
qualifying non-federal hydropower projects at existing nonpowered
dams and for closed-loop pumped storage projects.
\13\ In 2021, the Commission also promulgated subsections 153.4
and 157.22(b) of its regulations governing liquified natural gas
(LNG) facilities and natural gas pipelines, respectively, to
establish a categorical ``reasonable period of time'' of one year
for a certifying authority to act on a certification request. 18 CFR
153.4, 157.22(b); Waiver of the Water Quality Certification
Requirements of Section 401(a)(1) of the Clean Water Act, 174 FERC ]
61,196 (2021).
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C. Hydropower Exemptions
5. Currently, the Commission's regulations do not specify that
hydropower exemption applicants must obtain a water quality
certification or waiver if the proposed project may result in a
discharge into waters of the United States. The Commission stated in
its preamble to the 1980 rule establishing the small hydropower
exemption that there is no applicable section 401 requirement where
there is no license.\14\ This unsupported statement implied,
incorrectly, that an exemption is not a federal license or permit
subject to section 401 of the CWA.\15\ Subsequently, in 1987, the
Commission explained in its response to comments for its final rule
promulgating the Commission's part 4 regulations for waiver of water
quality certification requirements that, although the Commission had
not required applicants for exemptions to obtain water quality
certification, it would consider changing its practice in a later
rulemaking.\16\ As matter of practice, the Commission incorporates
water quality certification conditions into final exemption orders when
a certification is issued by the relevant certifying authority.\17\
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\14\ Exemption from All of Part of Part 1 of the Fed. Power Act
of Small Hydroelectric Power Projects with an Installed Capacity of
5 Megawatts of Less, Order No. 106, 45 FR 76115 (Nov. 18, 1980),
FERC Stats. & Regs. ] 30,204, at 31,368 (1980) (cross-referenced at
13 FERC ] 61,116). The Commission's hydropower exemption regulations
were revised in 2014 to increase the maximum installed capacity for
eligible small hydroelectric power projects from 5 MW to 10 MW.
Revisions & Tech. Corrections to Conform the Commission's Reguls. to
the Hydropower Regul. Efficiency Act of 2013, Order No. 800, 79 FR
59105 (Oct. 1, 2014), 148 FERC ] 61,197 (2014); see also 18 CFR
4.101-4.108. The Commission also issues exemptions for qualifying
conduit hydroelectric projects, pursuant to section 30 of the FPA,
as amended. See 18 CFR 4.90-4.96.
\15\ The Commission's prior statement in a preamble does not
supersede the statutory mandate under Section 401(a) of the CWA.
\16\ Order No. 464, FERC Stats. & Regs. ] 30,730 at 30,546.
\17\ See, e.g., City of Nashua, N.H., 182 FERC ] 62,009, at PP
12-14 (2023) (stating ``[u]nder Section 401(a) of the [CWA], the
Commission may not authorize construction or operation of a
hydroelectric project that may result in a discharge into the
navigable waters of the United States unless the state water quality
certifying agency either has issued water quality certification for
the project or has waived certification''); New England Hydropower
Co., LLC, 155 FERC ] 62,132, at P 13 (2016) (making the water
quality certification conditions mandatory conditions of the
exemption); Charlie Hotchkin & Claire Fay, 132 FERC ] 62,037, at P 7
(2010) (same).
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II. Notice of Proposed Rulemaking
6. On May 23, 2024, the Commission issued a Notice of Proposed
Rulemaking (NOPR) proposing to amend its regulations to: (1) clarify
that, for all proceedings before the Commission that require a water
quality certification under section 401(a)(1) of the CWA, the
reasonable period of time during which the certifying authority may act
on the water quality certification request is one year from the
certifying authority's receipt of the request; (2) clarify that any
Commission authorizations that have the potential to discharge into
waters of the United States require a section 401 water quality
certification or waiver, including, depending on the activity
[[Page 96526]]
being proposed, authorizations associated with hydropower exemptions,
amendments, and surrenders; (3) update terminology in the Commission's
hydropower regulations; and (4) update the timing of the filing
requirements for the Commission's expedited hydropower licensing
process.\18\
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\18\ Establishment of Categorical Reasonable Period of Time for
Action on Requests for Water Quality Certification under Section
401(a)(1) of the Clean Water Act & Clarifying Types of Hydroelectric
Project Procs. that May Require Water Quality Certification, 89 FR
48,351(June 6, 2024), 187 FERC ] 61,094 (2024) (NOPR).
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7. The NOPR established a 30-day comment period after the date of
publication in the Federal Register. The NOPR was published in the
Federal Register on June 6, 2024,\19\ setting July 8, 2024, as the
deadline for filing comments.\20\ On June 25, 2024, the Hydropower
Reform Coalition (Hydro Coalition) \21\ filed a motion to extend the
deadline for filing comments on the NOPR, which the Commission granted
on June 28, 2024, with the revised deadline of August 7, 2024.
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\19\ 89 FR 48351.
\20\ The Commission's Rules of Practice and Procedure provide
that if a filing deadline falls on a Saturday, Sunday, holiday, or
other day when the Commission is closed for business, the filing
deadline does not end until the close of business on the next
business day. 18 CFR 385.2007(a)(2). Because the 30-day filing
deadline fell on a Saturday (i.e., July 6, 2024), the filing
deadline was extended until the close of business on Monday, July 8,
2024.
\21\ Hydro Coalition is an association of over 160 national,
regional, and local membership groups, including Alabama Rivers
Alliance, American Rivers, American Whitewater, Appalachian Mountain
Club, California Outdoors, California Sportfishing Protection
Alliance, California Trout, Foothill Conservancy, Friends of the
River, Idaho Rivers United, Michigan Hydro Relicensing Coalition,
South Yuba River Citizens League, and Trout Unlimited.
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8. In response to the NOPR, the Commission received comments, from
five entities, Oregon Department of Environmental Quality (DEQ),
Maryland Department of the Environment, Idaho Department of
Environmental Quality (DEQ), National Hydropower Association, Inc.
(NHA),\22\ and Hydro Coalition. The proposal set forth in the NOPR, the
comments received in response to the NOPR, and the Commission's
determinations are discussed below.
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\22\ NHA is a non-profit national association, and its
membership consists of more than 320 organizations, including public
and investor-owned utilities, independent power producers, equipment
manufacturers, and professional organizations that provide legal,
environmental, and engineering services to the water power industry.
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III. Discussion
A. Reasonable Period of Time
9. The NOPR explained that the Commission continues to believe that
the benefits of setting a categorical one-year reasonable period of
time for a certifying authority to act on a request for certification
best serves the public interest by providing certainty and consistency
for all Commission hydropower proceedings in which a section 401
certification is required.\23\ We noted that the proposed rule is
consistent with EPA's proviso that federal agencies may establish a
categorical one-year reasonable period of time in their regulations,
which would promote administrative efficiency given there would be no
need to negotiate with the certifying authority in every case where a
section 401 water quality certification is required.\24\
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\23\ NOPR, 187 FERC ] 61,094 at P 7 (citing Waiver of the Water
Quality Certification Requirements of Section 401(a)(1) of the Clean
Water Act, 174 FERC ] 61,196; Order No. 464, FERC Stats. & Regs. ]
30,730).
\24\ Id.
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10. Therefore, the NOPR clarified that for all proceedings before
the Commission that require water quality certification, the reasonable
period of time for a certifying authority to act on the certification
request is one year from the certifying authority's receipt of the
request.\25\ Specifically, the Commission proposed to revise its
regulations in parts 4, 5, 6, and 7 to cover any proceedings before the
Commission that may require a section 401 water quality certification,
so that all certification requests related to a Commission proceeding
would be governed by the same reasonable period of time and be
consistent with the regulations currently governing applications for
hydropower licenses.\26\
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\25\ Id.
\26\ Id. P 8.
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11. In response to the Commission's request for comments on the
NOPR, all commenters supported setting a categorical one-year
reasonable period of time. Commenters stated that the one-year
reasonable period of time would save time and resources; \27\ promote
administrative efficiency; \28\ serve the public interest by providing
certainty, clarity, and consistency; \29\ and better serve the purposes
of the CWA and the FPA for hydropower projects compared to EPA's six-
month default reasonable period of time.\30\
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\27\ Maryland Department of the Environment Comments at 1
(emphasizing that the one-year timeframe is reasonable if the
application submitted is complete or nearly complete, which is
crucial for the certifying authority).
\28\ Idaho DEQ Comments at 1.
\29\ Oregon DEQ Comments at 1; NHA Comments at 2.
\30\ Hydro Coalition Comments at 4.
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B. Hydropower Exemptions
12. The NOPR explicitly incorporated applications for an exemption
from licensing under the water quality certification requirements in
part 4 of the Commission's regulations to remove any uncertainty as to
whether an applicant for an exemption should apply for water quality
certification if the proposed project may result in a discharge into
waters of the United States.\31\ The proposed rule further clarified
that because exemptions are federal permits, section 401 of the CWA
applies to such projects.\32\ Several commenters support the
Commission's clarification that section 401 applies to exemptions, as
it eliminates uncertainty in the exemption process.\33\ No commenters
oppose this clarification.
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\31\ NOPR, 187 FERC ] 61,094 at P 9.
\32\ Id.
\33\ See Oregon DEQ Comments at 1; Idaho DEQ Comments at 1;
Hydro Coalition Comments at 5.
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C. Terminology
13. The NOPR proposed to update the term ``certifying agency''
previously used in the Commission's regulations in parts 4, 5, and 7 to
``certifying authority,'' which is the defined term EPA uses in its
regulations to describe the entity responsible for certifying
compliance with applicable water quality requirements under section 401
of the CWA.\34\ The proposed rule also incorporated the term
``express'' waiver into the Commission's regulations in parts 4, 5, and
7, to reflect the four ways that a certifying authority may act on a
request for certification, pursuant to 40 CFR 121.7.\35\ In the NOPR,
the Commission explained that these proposed changes would align the
Commission's regulatory terminology with the EPA's regulatory
terminology for clarity and consistency. Idaho DEQ supports the
Commission's updates to terminology for clarity and consistency.\36\ No
commenters oppose these proposed changes.
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\34\ NOPR, 187 FERC ] 61,094 at P 10 (citing 88 FR 66662; 40 CFR
121.1(b)). The NOPR also explained that there are other parts of the
Commission's regulations that use the term ``certifying agency'' in
the context of section 401 that the NOPR was not proposing to update
but clarified that these two terms would be used interchangeably
throughout the Commission's regulations. Id. at note 20.
\35\ NOPR, 187 FERC ] 61,094 at P 10 (citing section 121.7 of
the EPA's regulations, which stipulates that a certifying authority
may act on a request for certification in one of four ways: grant
certification, grant certification with conditions, deny
certification, or expressly waive certification).
\36\ See Idaho DEQ Comments at 1.
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[[Page 96527]]
D. Timing of Section 401 Filing Requirements Under Parts 4 and 5
14. Idaho DEQ filed comments requesting that the Commission
consider changing the timing of the filing requirements under 18 CFR
4.34(b)(5)(i) and 5.23(b), as it, as a certifying authority, relies on
the Commission's National Environmental Policy Act (NEPA) analysis for
its water quality certification analysis.\37\ Idaho DEQ notes that
there are some applicants who file their water quality certification
application well in advance of the Commission issuing its notice of
ready for environmental analysis, a practice that Idaho DEQ wants to
discourage because it needs the Commission's NEPA analysis to complete
its water quality certification review. Idaho DEQ thus requests that
the Commission reaffirm that our existing regulatory requirements are
met if the applicant submits to the Commission a copy of the request
for certification within 60 days from the notice of ready for
environmental analysis.\38\
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\37\ Id. at 2.
\38\ Id.
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15. Hydro Coalition also requests that the Commission consider
changing the overall timing requirement for when applicants must file a
water quality certification application under parts 4 and 5 of the
Commission's regulations, as the current requirement to file a water
quality certification application within 60 days from the Commission's
notice of ready for environmental analysis does not allow certifying
authorities or stakeholders to use the Commission's NEPA analysis,
which it asserts can cause duplication of efforts, delays, and
increases certification denials without prejudice.\39\ Thus, Hydro
Coalition recommends that the Commission revise its regulation to allow
applicants to file their water quality certification application at
least 60 days after the draft NEPA document is issued.\40\
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\39\ Hydro Coalition Comments at 4-5, 8-9.
\40\ Id. Hydro Coalition also recommends that the Commission
change its licensing process to issue draft licenses for greater
efficiency and transparency in the process. Id. at 7-8. This request
is outside the scope of this rulemaking.
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16. The Commission declines to change its filing requirements under
sections 4.34(b)(5)(i) and 5.23(b) of its regulations. We note that the
EPA's regulations setting out the minimum content requirements for a
request for certification do not include the draft or final NEPA
document.\41\ Further, we believe that our current regulations provide
the flexibility needed for applicants to be able to comply with the
Commission's regulations and any filing requirements a particular
certifying authority may require.\42\ We also note that EPA's updated
section 401 regulations require applicants to request a pre-filing
meeting with the certifying authority at least 30 days prior to
submitting a request for certification, so before an applicant can
submit its water quality certification application, it should know what
information is needed from the certifying authority for a compliant
application.\43\ Therefore, if there is a conflict between the
certifying authority's and the Commission's water quality certification
filing requirements, the applicant may bring the filing issue to the
Commission's attention.\44\
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\41\ See 40 CFR 121.5(a) and (d). The Commission recognizes that
each certifying authority may identify additional contents that are
required for a compliant water quality certification application,
which could include the Commission's NEPA document. 40 CFR 121.5(c).
\42\ See 18 CFR 4.34(b)(5)(i)(B) & 5.23(b)(1)(ii).
\43\ See 40 CFR 121.4.
\44\ Further, while we recognize that it might be useful for
state agencies to have the Commission's NEPA document in hand when
developing a water quality certification, it would be equally useful
for the Commission to have the certification in hand when developing
its NEPA document and, further, the Commission needs the
certification to prepare and issue a license order.
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E. Timing of Section 401 Filing Requirements Under Part 7
17. The NOPR also proposed changes to the timing of the filing
requirements under part 7 of the Commission's regulations, which
governs the expedited licensing process available for a subset of
hydropower projects.\45\ Currently section 7.2(b)(3) of the
Commission's regulations requires that an application under part 7 must
include either a copy of the request for a water quality certification,
the issued certification, or evidence of waiver of the
certification.\46\ This requirement conflicts with the EPA's
Certification Improvement Rule, which requires any request for a water
quality certification to include a copy of the final application for
the federal license or permit.\47\ To avoid this conflict, the
Commission proposed that an applicant under part 7 must file within 60
days of submitting its license application to the Commission a copy of
the certification request, certification, or the certifying authority's
express waiver.
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\45\ The expedited licensing process is available under Part 7
for applications for original licenses for qualifying non-federal
hydropower projects at existing nonpowered dams and for certain
closed-loop pumped storage projects. 18 CFR 7.1(a).
\46\ 18 CFR 7.2(3); see also NOPR, 187 FERC ] 61,094 at P 11.
\47\ NOPR, 187 FERC ] 61,094 at P 11 (citing 40 CFR
121.5(a)(1)(i)).
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18. Idaho DEQ filed comments in support of the Commission's
proposed changes to the timing of the filing requirements under part
7.\48\ On the other hand, Hydro Coalition states that applying for a
water quality certification within 60 days after the application is
filed is far too early in the process and should be required only after
the Commission has issued a draft license or draft NEPA analysis.\49\
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\48\ Idaho DEQ Comments at 2.
\49\ Hydro Coalition Comments at 11.
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19. Regarding Hydro Coalition's comments on the proposed changes to
the timing of the filing requirement under part 7, we continue to
believe that requiring applicants to file certification requests (or
issued certifications or evidence of waiver) within 60 days of filing
applications is reasonable and will assist the Commission in
efficiently processing applications using the expedited process.\50\
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\50\ 18 CFR 7.1 (detailing the expedited licensing process for
original licenses for qualifying non-federal hydropower projects at
existing nonpowered dams and for closed-loop pumped storage projects
under FPA sections 34 and 35).
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F. Additional Comments Under Parts 5, 6, and 7
20. Several commenters filed comments requesting that the
Commission expand the rulemaking to change the existing requirements in
parts 5, 6, and 7 regarding when a new section 401 certification
request is required for: (1) amendments to existing licenses under part
5; (2) amendments to license applications under part 5; (3) license
surrenders under part 6; and (4) amendments to expedited license
applications under part 7.
21. Oregon DEQ does not support the proposed changes in part 7,
asserting that the current language in section 7.7 allows the
Commission to determine whether an amendment to an expedited license
application would result in a ``material adverse impact on the water
quality in the discharge from the proposed project'' that would warrant
a new or modified water quality certification.\51\ It states that this
existing section is inconsistent with the CWA, case law, and the
Commission's repeal of a similar provision previously included in part
4 of its regulations.\52\
[[Page 96528]]
Oregon DEQ asserts that whether an amendment to a license application
triggers a new water quality certification request is a determination
for the certifying authority and not the federal agency.\53\ If the
proposed activity changes, Oregon DEQ states that a new request for
certification must be made to the certifying authority to ensure
compliance with all applicable water-quality-related laws, which would
trigger a new one-year reasonable period of time.\54\
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\51\ Oregon DEQ Comments at 2.
\52\ Id. (citing S.D. Warren Co. v. Maine Bd. of Envtl. Prot.,
547 U.S. 370, 383 (2006) (``State certifications under Sec. 401 are
essential in the scheme to preserve state authority to address the
broad range of pollution.''); 18 CFR 4.38(f)(7)(iii) (1995); and
State of N.C. v. FERC, 112 F.3d 1175, 1186 (D.C. Cir. 1997) (``We
note that on remand the Commission discarded 18 [CFR]
4.38(f)(7)(iii) as an alternative basis for upholding the decision
not to require that a water quality certification be obtained from
North Carolina. As a result, we need not address the legality of
that regulation despite our serious reservations concerning FERC's
attempt to redefine the statutory phrase `any discharge,' 33 U.S.C.
[ ] 1341(a)(1), to mean only those discharges that are `material,'
18 CFR [ ] 4.38(f)(7)(iii).'').
\53\ Oregon DEQ Comments at 2.
\54\ Id. at 3.
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22. Hydro Coalition also asserts that the Commission's proposed
rule falls short in several areas, including that the Commission's
regulations only require section 401 certification for amendments that
``have a material adverse impact on water quality,'' and recommends
that the Commission clarify in section 5.23 that section 401 applies to
all amendments under 18 CFR 4.200.\55\ Hydro Coalition further states
that the Commission's regulations lack a meaningful surrender process
and recommends that the Commission clarify that section 401 applies to
all surrenders where the decommissioning proposal includes continuing
or releasing a new discharge into navigable waters.\56\
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\55\ Hydro Coalition Comments at 9 & 12.
\56\ Id. at 5-6 & 10-11.
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23. We clarify here that part 7 of the Commission's regulations
does not apply to license applications under parts 4 and 5 of the
Commission's regulations, nor to exemptions, amendments to existing
licenses, or surrender applications. We also note that the Commission
did not propose any substantive changes in the NOPR to the language in
section 7.7, beyond the updated terminology and reference to section
7.2(c).
24. Nevertheless, we agree with Oregon DEQ \57\ and Hydro Coalition
that section 7.7(a)(1) in the Commission's regulations, which includes
the phrase ``material adverse impact,'' should be removed for
consistency and clarity to align with current Commission practice. The
Commission removed that phrase from part 4 of its regulations in its
2012 rulemaking based on Commission practice and court precedent.\58\
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\57\ Oregon DEQ cites to 18 CFR 4.38(f)(7)(iii) (1995), which
language was later moved to 18 CFR 4.34(b)(5)(iv) (2003). See
Hydroelectric Licensing Under the Fed. Power Act, Order No. 2002, 68
FR 51070 (Aug. 25, 2003), Order No. 2002-A, 69 FR 5268 (Feb. 4,
2004), 104 FERC ] 61,109 (2003), order on reh'g, 106 FERC ] 61,037
(2004).
\58\ The Commission removed section 4.34(b)(5)(iv) of its
regulations, which was substantively similar to sections 5.23(b)(3)
and 7.7(a)(1). Section 4.34(b)(5)(iv) required new requests for
water quality certification if an application to amend an existing
license or an application to amend a pending application for a
license would have a material adverse impact on the water quality in
the discharge from the project. Technical Corrections to Commission
Regulations, Order No. 756, 77 FR 4891 (Feb. 1, 2012), 138 FERC ]
61,032, at n.2 (2012) (citing Ala. Rivers Alliance v. FERC, 325 F.3d
290 (D.C. Cir. 2003)).
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25. Similarly, we are removing section 5.23(b)(3) for consistency
and clarity within our regulations, as that section is identical to
section 7.7(a)(1). Although section 5.23(b)(3) was not included in the
NOPR, the NOPR included terminology changes within section 5.23(b);
thus, the Commission believes that the revisions to 5.23(b)(3) are a
logical outgrowth of the edits in 7.7 in response to stakeholder
comments.\59\
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\59\ See, e.g., CSX Transp., Inc. v. Surface Transp. Bd., 584
F.3d 1076, 1079-80 (D.C. Cir. 2009) (``To satisfy the APA's notice
requirement, the [Notice of Proposed Rulemaking] and the final rule
need not be identical: `[a]n agency's final rule need only be a
`logical outgrowth' of its notice.' '') (quoting Covad Commc'ns Co.
v. FCC, 450 F.3d 528, 548 (D.C. Cir. 2006)); Fertilizer Inst. v.
U.S. E.P.A., 935 F.2d 1303, 1311 (D.C. Cir. 1991) (``This court has
long recognized that an agency must be able to respond flexibly to
comments and need not provide a new round of notice and comment
every time it modifies a proposed rule. . . . [A] final rule will be
deemed to be the logical outgrowth of a proposed rule if a new round
of notice and comment would not provide commenters with `their first
occasion to offer new and different criticisms which the agency
might find convincing.' '') (quoting United Steelworkers of Am. v.
Marshall, 647 F.2d 1189, 1225 (D.C. Cir. 1980)) (internal quotations
omitted)).
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26. With respect to Hydro Coalition's request that the Commission
clarify in part 6 of its regulations that all surrender applications
where there is a continuing or new discharge and all license amendment
applications filed under 18 CFR 4.200 require an applicant to apply for
a section 401 certification,\60\ this rulemaking is limited to updates
in the Commission's hydropower regulations pertaining to the one-year
reasonable period of time for a certifying authority to act on a
request for certification, updates to terminology and general edits,
and timing of section 401 filing requirements. Accordingly, the
question of whether a water quality certification is required in
particular cases or classes of cases is beyond the scope of this final
rule. We note, as discussed above, that a new water quality
certification or waiver would be required for any application to
surrender or amend a license or license application if the proposal
might result in a discharge into waters of the United States. This
necessarily is determined on a case-by-case basis.
---------------------------------------------------------------------------
\60\ Hydro Coalition Comments at 9-11.
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IV. Regulatory Requirements
A. Information Collection Statement
27. The Paperwork Reduction Act \61\ requires each federal agency
to seek and obtain the Office of Management and Budget's (OMB) approval
before undertaking a collection of information (i.e., reporting,
recordkeeping, or public disclosure requirements) directed to ten or
more persons or contained in a rule of general applicability. OMB
regulations require approval of certain information collection
requirements contained in final rules published in the Federal
Register.\62\ This final rule does not impose new information
collection requirements on ten or more persons. The final rule does not
impose any new information collection requirements on license,
amendment, and surrender applicants, nor certifying authorities.
---------------------------------------------------------------------------
\61\ 44 U.S.C. 3501-3521.
\62\ See 5 CFR 1320.12.
---------------------------------------------------------------------------
28. The rule clarifies the filing requirements for exemption
applicants who need a water quality certification. The final rule
clarifies that if a proposed exemption project has the potential to
discharge into waters of the United States, the applicant is required
to file either a copy of the water quality certification or the
certifying authority's express waiver, a copy of the request for
certification, or notification that the certifying authority failed to
act. Exemption applicants do not need to create a new document or fill
out a form, rather they are just submitting to the Commission a copy of
the certifying authority's response or informing the Commission that
the certifying authority has failed to act within one year. Over the
last ten years, the Commission received an average of less than two
exemption applications per year. The directives to submit exemptions
for certification or evidence of waiver of water quality certification
are covered by and already included in, the existing OMB-approved
information collection FERC-505 (Small Hydropower Projects and Conduit
Facilities including License/Relicense, Exemption, and Qualifying
Conduit Facility Determination; OMB Control No. 1902-0115).
B. Environmental Analysis
29. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant effect on the human
[[Page 96529]]
environment.\63\ The Commission has categorically excluded certain
actions from this requirement as not having a significant effect on the
human environment, including the promulgation of rules that are
clarifying, corrective, or procedural, or that do not substantially
change the effect of legislation, or the regulations being amended.\64\
This final rule categorically establishes a reasonable period of time
for a certifying authority to act on a water quality certification
request for a license, exemption, amendment, or surrender application
of a hydroelectric project pending with the Commission. The final rule
also updates the term ``certifying agency'' to ``certifying
authority,'' incorporates the term ``express'' waiver to reflect the
four ways a certifying authority may act on a request for
certification, and revises the requirements under part 7 to permit
compliance with both EPA's and the Commission's regulations. Because
this final rule is procedural in nature, preparation of an
Environmental Assessment or an Environmental Impact Statement is not
required.
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\63\ Reguls. Implementing the Nat'l Env't Pol'y Act of 1969,
Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs.
30,782 (1987) (cross-referenced at 41 FERC ] 61,284).
\64\ 18 CFR 380.4(a)(2)(ii).
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C. Regulatory Flexibility Act
30. The Regulatory Flexibility Act of 1980 (RFA) \65\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
The RFA mandates consideration of regulatory alternatives that
accomplish the stated objectives of a final rule and minimize any
significant economic impact on a substantial number of small
entities.\66\ In lieu of preparing a regulatory flexibility analysis,
an agency may certify that a final rule will not have a significant
economic impact on a substantial number of small entities.\67\ The
Small Business Administration's (SBA) Office of Size Standards develops
the numerical definition of a small business.\68\ The SBA size standard
for hydroelectric power generation is based on the number of employees,
including affiliates.\69\ Under SBA's size standards, a hydroelectric
power generator is small if, including its affiliates, it employs 750
or fewer people.\70\
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\65\ 5 U.S.C. 601-612.
\66\ Id. 603(c).
\67\ Id. 605(b).
\68\ 13 CFR 121.101.
\69\ Id. 121.201, subsection 221.
\70\ Id.
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31. This final rule applies to a number of entities, some of which
may be small businesses, with an application for a license, exemption,
amendment, or surrender of a hydroelectric project pending with the
Commission that requires a water quality certification under section
401(a)(1) of the CWA. However, the final rule will not have a
significant economic impact on these entities, regardless of their
status as a small entity or not, as the final rule (1) updates
terminology and the timing of filing requirements to be consistent with
EPA regulations; (2) clarifies what and when an exemption applicant
must file if the proposed project triggers section 401 of the CWA; (3)
removes inconsistent language from parts 5 and 7 of the Commission's
regulation; and (4) establishes a categorical one year period of time
for a certifying authority to act on a request for a water quality
certification for hydroelectric proceedings in which the proposed
activity may result in a discharge into waters of the United States
triggering section 401(a)(1) of the CWA.
32. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this final rule will not have a significant
economic impact on a substantial number of small entities.
D. Document Availability
33. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
internet through the Commission's Home Page (<a href="http://www.ferc.gov">http://www.ferc.gov</a>).
34. From the Commission's Home Page on the internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
35. User assistance is available for eLibrary and the Commission's
website during normal business hours from the Commission's Online
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at
<a href="/cdn-cgi/l/email-protection#50363522333f3e3c393e35232520203f222410363522337e373f26"><span class="__cf_email__" data-cfemail="9ff9faedfcf0f1f3f6f1faeceaefeff0edebdff9faedfcb1f8f0e9">[email protected]</span></a>, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
<a href="/cdn-cgi/l/email-protection#364643545a5f55184453505344535855534459595b765053445518515940"><span class="__cf_email__" data-cfemail="7f0f0a1d13161c510d1a191a0d1a111c1a0d1010123f191a0d1c51181009">[email protected]</span></a>.
E. Effective Date and Congressional Notification
36. Thes regulations are effective January 6, 2025. The Commission
has determined, with the concurrence of the Administrator of the Office
of Information and Regulatory Affairs of OMB, that this rule is not a
major rule as defined in section 251 of the Small Business Regulatory
Enforcement Fairness Act of 1996.\71\ This rule is being submitted to
the Senate, House, Government Accountability Office, and Small Business
Administration.
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\71\ 5 U.S.C. 804(2).
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List of Subjects
18 CFR Part 4
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 5
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 6
Electric power, Reporting and recordkeeping requirements.
18 CFR Part 7
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
By direction of the Commission.
Issued: November 21, 2024.
Debbie-Anne A. Reese,
Secretary.
In consideration of the foregoing, the Commission amends parts 4,
5, 6, and 7 chapter I, Title 18, Code of Federal Regulations, as
follows:
PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT
COSTS
0
1. The authority citation for part 4 continues to read as follows:
Authority: 16 U.S.C. 791a-825; 42 U.S.C. 7101-7352.
0
2. Revise Sec. 4.34(b)(5) to read as follows:
Sec. 4.34 Hearing on application; consultation on terms and
conditions; motions to intervene; alternative procedures.
* * * * *
(b) * * *
(5)(i) With regard to certification requirements under section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act)
for an application for a license or exemption from licensing, an
applicant shall file within 60 days from the date of issuance of the
notice of ready for environmental analysis:
(A) A copy of the water quality certification or the certifying
authority's express waiver;
[[Page 96530]]
(B) A copy of the request for certification, including proof of the
date on which the certifying authority received the request; or
(C) Evidence of waiver of water quality certification as described
in paragraph (b)(5)(iii) of this section.
(ii) In the case of an application process using the alternative
procedures of paragraph 4.34(i), the filing requirement of paragraph
(b)(5)(i) shall apply upon issuance of notice the Commission has
accepted the application as provided for in paragraph 4.32(d) of this
part.
(iii) A certifying authority is deemed to have waived the
certification requirements of section 401(a)(1) of the Clean Water Act
if the certifying authority has not denied, expressly waived, or
granted certification by one year after the date the certifying
authority received a written request for certification. If a certifying
authority denies certification, the applicant must file a copy of the
denial within 30 days after the applicant received it.
* * * * *
0
3. Amend Sec. 4.201 by adding paragraph (e) to read as follows:
Sec. 4.201 Contents of application.
* * * * *
(e) For any amendment that requires certification under section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act),
a certifying authority is deemed to have waived the certification
requirements of section 401(a)(1) of the Clean Water Act if the
certifying authority has not denied, expressly waived, or granted
certification by one year after the date the certifying authority
received a written request for certification.
PART 5--INTEGRATED LICENSE APPLICATION PROCESS
0
4. The authority citation for part 5 continues to read as follows:
Authority: 16 U.S.C. 792-828c, 2601-2645; 42 U.S.C. 7101-7352.
0
5. Revise Sec. 5.23(b) to read as follows:
* * * * *
(b) Water quality certification. (1) With regard to certification
requirements under section 401(a)(1) of the Federal Water Pollution
Control Act (Clean Water Act), the license applicant shall file within
60 days from the date of issuance of the notice of ready for
environmental analysis:
(i) A copy of the water quality certification or the certifying
authority's express waiver;
(ii) A copy of the request for certification, including proof of
the date on which the certifying authority received the request; or
(iii) Evidence of waiver of water quality certification as
described in paragraph (b)(2) of this section.
(2) A certifying authority is deemed to have waived the
certification requirements of section 401(a)(1) of the Clean Water Act
if the certifying authority has not denied, expressly waived, or
granted certification by one year after the date the certifying
authority received a written request for certification. If a certifying
authority denies certification, the applicant must file a copy of the
denial within 30 days after the applicant received it.
PART 6--SURRENDER OR TERMINATION OF LICENSE
0
6. The authority citation for part 6 continues to read as follows:
Authority: 16 U.S.C. 799, 803(i), 806, 825h; 44 U.S.C. 3501 et
seq.
0
7. Revise Sec. 6.1 to read as follows:
Sec. 6.1 Application for surrender.
(a) Every application for surrender of a license shall state the
reason therefor; and, except in the case of an application for
surrender of a license for a minor project, or for a transmission line
only, shall be executed by the licensee and filed in the same form and
manner as the application for license, and shall be accompanied by the
license and all amendments thereof. Public notice of such application
shall be given at least 30 days prior to action upon the application.
(b) For any surrender that requires certification under section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act),
a certifying authority is deemed to have waived the certification
requirements of section 401(a)(1) of the Clean Water Act if the
certifying authority has not denied, expressly waived, or granted
certification by one year after the date the certifying authority
received a written request for certification.
PART 7--EXPEDITED LICENSING PROCESS FOR QUALIFYING NON-FEDERAL
HYDROPOWER PROJECTS AT EXISTING NONPOWERED DAMS AND FOR CLOSED-LOOP
PUMPED STORAGE PROJECTS
0
8. The authority citation for part 7 continues to read as follows:
Authority: 16 U.S.C. 791a-825r.
0
9. Revise Sec. 7.2 to read as follows:
Sec. 7.2 Use of expedited licensing process.
(a) In order to pursue the expedited licensing process, an
applicant must request authorization for the expedited process, as
provided for in paragraph (b) of this section. The licensing procedures
in this part do not apply to an application for a new or subsequent
license.
(b) An application that accompanies a request for authorization to
use the expedited licensing process must include the information
specified below.
(1) Section 34 of the Federal Power Act qualification--projects at
nonpowered dams. The application must demonstrate that the proposed
facility meets the following qualifications pursuant to section 34(e)
of the Federal Power Act:
(i) As of October 23, 2018, the proposed hydropower facility was
not licensed under or exempted from the license requirements contained
in Part I of the Federal Power Act;
(ii) The facility will be associated with a qualifying nonpowered
dam;
(iii) The facility will be constructed, operated, and maintained
for the generation of electric power;
(iv) The facility will use for such generation any withdrawals,
diversions, releases, or flows from the associated qualifying
nonpowered dam, including its associated impoundment or other
infrastructure; and
(v) The operation of the facility will not result in any material
change to the storage, release, or flow operations of the associated
qualifying nonpowered dam.
(2) Section 35 of the Federal Power Act qualification--closed-loop
pumped storage projects. The application must demonstrate that the
proposed closed-loop pumped storage project meets the following
qualifications pursuant to section 35(g)(2) of the Federal Power Act:
(i) The project will cause little to no change to existing surface
and groundwater flows and uses; and
(ii) The project is unlikely to adversely affect species listed as
a threatened species or endangered species, or designated critical
habitat of such species, under the Endangered Species Act of 1973.
(3) Section 401 of the Clean Water Act. The license applicant shall
file within 60 days from the filing date of application. (i) A copy of
a request for certification under section 401(a)(1) of the Clean Water
Act, including proof of the date on which the certifying authority
received the request; or
(ii) A copy of water quality certification or the certifying
authority's express waiver.
(4) Evidence of waiver of water quality certification. A certifying
authority is
[[Page 96531]]
deemed to have waived the certification requirements of section
401(a)(1) of the Clean Water Act if the certifying authority has not
denied, expressly waived, or granted certification by one year after
the date the certifying authority received a written request for
certification. If a certifying authority denies certification, the
applicant must file a copy of the denial within 30 days after the
applicant receives it.
(5) Endangered Species Act (ESA). The application must include:
(i) A no-effect determination that includes documentation that no
listed species or critical habitat are present in the action area;
(ii) Documentation of concurrence from the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service (Service(s)), as
necessary, that the action is not likely to adversely affect ESA-listed
species or critical habitat; or
(iii) A draft Biological Assessment that includes documentation of
consultation with the Service(s).
(6) Section 106 of the National Historic Preservation Act.
Documentation that section 106 consultation has been initiated with the
state historic preservation officer(s) and any Indian Tribes identified
as having an interest in the project.
(7) Dam owner documentation. For projects to be located at existing
nonpowered dams:
(i) Documentation of consultation with any nonfederal owner of the
nonpowered dam if the applicant is not the owner and confirmation that
the owner is not opposed to a hydropower development at the location;
or
(ii) Documentation from the federal entity that non-federal
hydropower development is not precluded at the proposed location and
confirmation that the federal entity is not opposed to a hydropower
development at the location.
(8) Public parks, recreation areas, and wildlife refuges. If the
project would use any public park, recreation area, or wildlife refuge
established under state or local law, documentation from the managing
entity indicating it is not opposed to the site's use for hydropower
development.
(c) Before it files any application for an original license for a
qualifying non-federal hydropower project at an existing nonpowered dam
or for a closed-loop pumped storage project pursuant to sections 34 and
35 of the Federal Power Act, a potential applicant must consult with
the relevant Federal, State, and interstate resource agencies,
including the National Marine Fisheries Service, the United States Fish
and Wildlife Service, the National Park Service, the United States
Environmental Protection Agency, the Federal agency administering any
federal lands or facilities utilized or occupied by the project, the
appropriate State fish and wildlife agencies, the appropriate State
water resource management agencies, the certifying authority under
section 401(a)(1) of the Federal Water Pollution Control Act (Clean
Water Act), 33 U.S.C. 1341(c)(1), the agency that administers the
Coastal Zone Management Act, 16 U.S.C. 1451-1465, any Indian Tribe that
may be affected by the proposed project, and members of the public.
(d) The Director of the Office of Energy Projects will, upon
request, provide a list of known appropriate Federal, state, and
interstate resource agencies, and Indian tribes, and local, regional,
or national non-governmental organizations likely to be interested in
any license application proceeding.
0
10. Revise Sec. 7.7(a) to read as follows:
Sec. 7.7 Amendment of application.
(a) Any proposed amendments to the pending license application
after issuance of the notice of acceptance and ready for environmental
analysis under this section must include updates to all material
submitted under Sec. 7.2(c).
* * * * *
[FR Doc. 2024-27981 Filed 12-4-24; 8:45 am]
BILLING CODE 6717-01-P
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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.