[Federal Register Volume 87, Number 111 (Thursday, June 9, 2022)]
[Proposed Rules]
[Pages 35318-35381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-12209]



[[Page 35317]]

Vol. 87

Thursday,

No. 111

June 9, 2022

Part III





Environmental Protection Agency





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40 CFR Parts 121, 122 and 124





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Clean Water Act Section 401 Water Quality Certification Improvement 
Rule; Proposed Rule

  Federal Register / Vol. 87, No. 111 / Thursday, June 9, 2022 / 
Proposed Rules  

[[Page 35318]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 121, 122 and 124

[EPA-HQ-OW-2022-0128; FRL-6976.1-01-OW]
RIN 2040-AG12


Clean Water Act Section 401 Water Quality Certification 
Improvement Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Following a careful reconsideration of the water quality 
certification rule promulgated in 2020, the Environmental Protection 
Agency (EPA or the Agency) is publishing for public comment a proposed 
rule revising and replacing the Agency's 2020 regulatory requirements 
for water quality certification under Clean Water Act (CWA) section 
401. This proposed rule would update the existing regulations to be 
more consistent with the statutory text of the 1972 CWA; to clarify, 
reinforce, and provide a measure of consistency with respect to 
elements of section 401 certification practice that have evolved over 
the 50 years since the 1971 Rule was promulgated; and to support an 
efficient and predictable certification process that is consistent with 
the water quality protection and cooperative federalism principles 
central to CWA section 401. This proposal is consistent with the 
Executive order signed on January 20, 2021, ``Protecting Public Health 
and the Environment and Restoring Science to Tackle the Climate 
Crisis,'' which directed the Agency to review the water quality 
certification rule EPA promulgated in 2020. The Agency is also 
proposing conforming amendments to the water quality certification 
regulations for EPA-issued National Pollutant Discharge Elimination 
System permits.

DATES: Comments must be received on or before August 8, 2022. Please 
refer to the SUPPLEMENTARY INFORMATION section for additional 
information on the public hearing.

ADDRESSES: You may send comments, identified by Docket ID No. EPA-HQ-
OW-2022-0128, by any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov/ 
(our preferred method). Follow the online instructions for submitting 
comments.
     Email: [email protected]. Include Docket ID No. EPA-HQ-OW-
2022-0128 in the subject line of the message.
     Hand Delivery/Courier: EPA Docket Center, WJC West 
Building, Room 3334, 1301 Constitution Avenue NW, Washington, DC 20004. 
The Docket Center's hours of operations are 8:30 a.m.-4:30 p.m., 
Monday-Friday (except Federal Holidays).
    Instructions: All submissions received must include the Docket ID 
No. EPA-HQ-OW-2022-0128 for this rulemaking. Comments received may be 
posted without change to https://www.regulations.gov/, including any 
personal information provided. For detailed instructions on sending 
comments and additional information on the rulemaking process, see the 
``Public Participation'' heading of the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Oceans, Wetlands, and 
Communities Division, Office of Water (4504-T), Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: 202-564-3351; email address: [email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Public Participation
    A. Written Comments
    B. Virtual Public Hearing
III. General Information
    A. What action is the Agency taking?
    B. What is the Agency's authority for taking this action?
    C. What are the incremental costs and benefits of this action?
IV. Background
    A. Development of Section 401
    B. Overview of CWA Section 401 Requirements
    C. Prior Rulemaking Efforts Addressing Section 401
    D. Summary of Stakeholder Outreach
V. Proposed Rule
    A. When Section 401 Certification Is Required
    B. Pre-Filing Meeting Request
    C. Request for Certification
    D. Reasonable Period of Time
    E. Scope of Certification
    F. Certification Decisions
    G. Federal Agency Review
    H. EPA's Roles Under Section 401
    I. Modifications
    J. Enforcement and Inspections
    K. Neighboring Jurisdictions
    L. Treatment in a Similar Manner as a State Under Section 401
    M. Implementation Considerations
VI. Economic Analysis
VII. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review; 
Executive Order 13563: Improving Regulation and Regulatory Review
    B. Paperwork Reduction Act (PRA)
    C. Regulatory Flexibility Act (RFA)
    D. Unfunded Mandates Reform Act (UMRA)
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children From 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

I. Executive Summary

    Clean Water Act (CWA) section 401 provides states \1\ and 
authorized tribes \2\ with a powerful tool to protect the quality of 
their waters from adverse impacts resulting from the construction and 
operation of federally licensed or permitted projects. Under CWA 
section 401, a Federal agency may not issue a license or permit to 
conduct any activity that may result in any discharge into a ``water of 
the United States'' \3\ unless the state or authorized tribe where the 
discharge would originate either issues a CWA section 401 water quality 
certification ``that any such discharge will comply with the applicable 
provisions of Sections 301, 302, 303, 306, and 307'' of the CWA, or 
waives certification. 33 U.S.C. 1341(a)(1). When granting a CWA section 
401 certification, states and authorized tribes are directed by CWA 
section 401(d) to include conditions, including ``effluent limitations 
and other limitations, and monitoring requirements'' necessary to 
assure that the applicant for a Federal license or

[[Page 35319]]

permit will comply with CWA sections 301, 302, 306, and 307, and with 
``any other appropriate requirement of State law.'' Id. at 1341(d).
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    \1\ The CWA defines ``state'' as ``a State, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, 
American Samoa, the Commonwealth of the Northern Mariana Islands, 
and the Trust Territory of the Pacific Islands.'' 33 U.S.C. 1362(3).
    \2\ The term ``authorized tribes'' refers to tribes that have 
been approved for ``treatment in a manner similar to a State'' 
status for CWA section 401. See 33 U.S.C. 1377(e).
    \3\ The CWA, including section 401, uses the term ``navigable 
waters,'' which the statute defines as ``the waters of the United 
States, including the territorial seas.'' 33 U.S.C. 1362(7). This 
proposed rule uses the term ``waters of the United States'' 
throughout. EPA and the Corps recently published a proposed rule 
that would define the scope of ``waters of the United States.'' See 
Proposed Revised Definition of ``Waters of the United States.'' 86 
FR 69372 (December 7, 2021). The agencies are currently interpreting 
``waters of the United States'' consistent with the pre-2015 
regulatory regime. The ``pre-2015 regulatory regime'' refers to the 
agencies' pre-2015 definition of ``waters of the United States,'' 
implemented consistent with relevant case law and longstanding 
practice, as informed by applicable guidance, training, and 
experience.
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    Congress originally created the state water quality certification 
requirement in section 21(b) of the Water Quality Improvement Act of 
1970, which amended the Federal Water Pollution Control Act (FWPCA).\4\ 
Congress granted states this certification authority in response to 
Federal agencies' failure to achieve Congress's previously stated goal 
of assuring that federally licensed or permitted activities comply with 
water quality standards.\5\ Two years later, Congress revised the 
Federal water quality protection framework \6\ when it enacted the 
Federal Water Pollution Control Act Amendments of 1972 (commonly known 
as the Clean Water Act or CWA).\7\ In those Amendments, Congress placed 
the state water quality certification requirement in section 401, using 
``substantially section 21(b) of existing law,'' with relevant 
conforming amendments ``to assure consistency with the [ ] changed 
emphasis from water quality standards to effluent limitations based on 
the elimination of any discharge of pollutants.'' S. Rep. No. 92-414 at 
69 (1971); see also H.R. Rep. No. 92-911 at 121 (1972) (``Section 401 
is substantially section 21(b) of the existing law amended to assure 
that it conforms and is consistent with the new requirements of the 
Federal Water Pollution Control Act.''). Section 401's grant of 
authority to states and authorized tribes to play a significant role in 
the Federal licensing or permitting process is consistent with the 
overall cooperative federalism framework of the CWA, which provides 
states and authorized tribes with a major role in implementing the CWA, 
balancing their traditional power to regulate land and water resources 
within their borders with the need for a national water quality 
regulation.
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    \4\ Water Quality Improvement Act of 1970, Public Law 91-224, 84 
Stat. 91 (April 3, 1970).
    \5\ S. Rep. 91-351, at 26 (1969) (``Existing law declares it to 
be the intent of Congress that all Federal departments, agencies, 
and instrumentalities shall comply with water quality standards. 
This declaration of intent has proved unsatisfactory. One basic 
thrust of S. 7 is to require that all activity over which the 
Federal Government has direct control-- . . . . federally licensed 
or permitted activity--be carried out in a manner to assure 
compliance with applicable water quality standards.'')
    \6\ City of Milwaukee v. Illinois, 451 U.S. 304, 310, 317 
(1981).
    \7\ Public Law 92-500, 86 Stat. 816, as amended, Public Law 95-
217, 91 Stat. 1566, 33 U.S.C. 1251 et seq.
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    EPA promulgated implementing regulations for water quality 
certification in 1971 (1971 Rule) \8\ prior to enactment of the 1972 
amendments to the CWA. In 1979, the Agency recognized the need to 
update its water quality certification regulations, in part to be 
consistent with the 1972 amendments. See 44 FR 32854, 32856 (June 7, 
1979) (noting the 40 CFR part 121 regulations predated the 1972 
amendments). However, the Agency declined to update the 40 CFR part 121 
regulations at the time because it had not consulted with other Federal 
agencies impacted by the water quality certification process, and 
instead developed regulations applicable to water quality 
certifications on EPA-issued National Pollutant Discharge Elimination 
System (NPDES) permits. Id.; see e.g., 40 CFR 124.53 through 124.55. As 
a result, the 1971 Rule did not fully reflect the current statutory 
language, nor does it reflect or account for water quality 
certification practices and judicial interpretations of section 401 
that have evolved over the past 50 years. Following the promulgation of 
the 1971 Rule, several seminal court cases have addressed fundamental 
aspects of the water quality certification process, including the scope 
of certification review and the appropriate timeframe for certification 
decisions. States have also developed and implemented their own water 
quality certification programs and practices aimed at protecting waters 
within their borders. During this time, the Agency supported state and 
tribal water quality certification practices and the critical role 
states and tribes play in protecting their waters under section 401.\9\
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    \8\ 36 FR 8563 (May 8, 1971), redesignated at 36 FR 22369, 22487 
(November 25, 1971), further redesignated at 37 FR 21441 (October 
11, 1972), further redesignated at 44 FR 32854, 32899 (June 7, 
1979).
    \9\ See Wetlands and 401 Certification: Opportunities and 
Guidelines for States and Eligible Indian Tribes (April 1989) 
(hereinafter, 1989 Guidance); Clean Water Act Section 401 Water 
Quality Certification: A Water Quality Protection Tool for States 
and Tribes (May 2010) (hereinafter, 2010 Handbook) (rescinded).
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    EPA revised the 1971 Rule in 2020.\10\ The 2020 Rule did not update 
the regulations applicable to water quality certifications on EPA-
issued NPDES permits but noted that the Agency would ``make any 
necessary conforming regulatory changes in a subsequent rulemaking.'' 
85 FR 42219. The 2020 Rule represented a substantive departure from 
some of the Agency's and certifying authorities' core prior 
interpretations and practices with respect to water quality 
certification. Moreover, the 2020 Rule deviated sharply from the 
cooperative federalism framework central to section 401 and the CWA. 
While the 2020 Rule did reaffirm some of the Agency's and the courts' 
prior interpretations, e.g., the need for a potential point source 
discharge into a water of the United States to trigger the section 401 
water quality certification requirement, the 2020 Rule rejected nearly 
twenty-five years of Agency practice and Supreme Court precedent 
regarding the appropriate scope of certification review, i.e., 
rejecting ``activity as a whole'' for the narrower ``discharge-only'' 
approach. Additionally, the 2020 Rule introduced new procedural 
requirements that caused disruption to state and tribal certification 
programs that had evolved over the last half century. In this proposal, 
the Agency is returning to some of those important core principles, 
such as an ``activity as a whole'' approach to the scope of 
certification review and greater deference to the role of states and 
tribes in the certification process, while retaining (and adding) 
elements that provide transparency and predictability for all 
stakeholders.
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    \10\ Clean Water Act Section 401 Certification Rule, 85 FR 42210 
(July 13, 2020) (hereinafter, 2020 Rule). For further discussion on 
the 2020 Rule, including legal challenges, please see Section IV.C 
of this preamble.
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    On January 20, 2021, President Biden signed Executive Order 13990 
directing Federal agencies to review actions taken in the prior four 
years that are, or may be, inconsistent with the policies stated in the 
order (including, but not limited to, bolstering resilience to climate 
change impacts and prioritizing environmental justice \11\). Protecting 
Public Health and the Environment and Restoring Science to Tackle the 
Climate Crisis, Executive Order 13990, 86 FR 7037 (published January 
25, 2021, signed January 20, 2021). Pursuant to this Executive order, 
EPA reviewed the 2020 Rule. EPA identified substantial concerns with a 
number of its provisions that were at odds with section 401's 
cooperative federalism approach to ensuring that states and tribes are 
empowered to protect their water quality. See Notice of Intention to 
Reconsider and Revise the Clean Water Act Section 401 Certification 
Rule, 86 FR 29541, 29542 (June 2, 2021) (identifying the Agency's 
concerns with the 2020 Rule). As a result, the Agency announced its 
intention to revise the 2020 Rule so that it is (1) well-informed

[[Page 35320]]

by stakeholder input, (2) better aligned with the cooperative 
federalism principles that have been central to the effective 
implementation of the CWA, and (3) responsive to the environmental 
protection and other objectives outlined in Executive Order 13990. Id.
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    \11\ EPA has defined environmental justice as the ``fair 
treatment and meaningful involvement of all people regardless of 
race, color, national origin, or income with respect to the 
development, implementation and enforcement of environmental laws, 
regulations and policies.'' See https://www.epa.gov/environmentaljustice/learn-about-environmental-justice.
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    Five months after EPA's announcement of its intent to reconsider 
and revise the 2020 Rule, on October 21, 2021, a Federal district court 
remanded and, while EPA had moved for a remand without vacatur,\12\ 
vacated the 2020 Rule. In Re Clean Water Act Rulemaking, No. 3:20-cv-
04636-WHA, 2021 WL 4924844 (N.D. Cal. October 21, 2021). The court 
found that vacatur was appropriate ``in light of the lack of reasoned 
decision-making and apparent errors in the rule's scope of 
certification, indications that the rule contravenes the structure and 
purpose of the Clean Water Act, and that EPA itself has signaled that 
it could not or would not adopt the same rule upon remand.'' Slip op. 
at 14-15. The effect of the court's vacatur was to reinstate the 1971 
Rule, effective October 21, 2021. Defendant-intervenors appealed the 
vacatur order to the U.S. Court of Appeals for the Ninth Circuit. On 
April 6, 2022, the U.S. Supreme Court granted the defendant-
intervenors' application for a stay of the vacatur pending the Ninth 
Circuit appeal. Louisiana v. Am. Rivers, No. 21A539 (S. Ct. April 6, 
2022).\13\ The effect of the Court's stay is that the 2020 Rule once 
again applies to section 401 certifications until EPA finalizes this 
proposed rulemaking.
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    \12\ See EPA's Motion for Remand Without Vacatur, No. 3:20-cv-
04636-WHA (July 1, 2021).
    \13\ The Court's stay order does not alter EPA's legal 
conclusions discussed in this proposed rule. The request for a stay 
concerned only the appropriateness of the district court's vacatur 
of a promulgated rule before a decision on the merits. The stay 
request did not raise any issues related to the substance of CWA 
section 401 certification or the merits of the 2020 Rule. See 
Louisiana Application for Stay Pending Appeal in Louisiana v. Am. 
Rivers, No. 21A539, pp. 1, 4, 16 (March 21, 2022) (identifying ``the 
core issue in this case'' to be the appropriateness of the district 
court's vacatur order) (identifying the APA--not the CWA or section 
401--as the statutory provision involved in the application for 
stay) (starting the application for stay with the question: ``Can a 
single district court vacate a rule that an agency adopted through 
notice-and-comment rulemaking without first finding that the rule is 
unlawful?''). Neither the Court's majority--which did not issue an 
opinion explaining its stay order--nor the dissent discussed any 
aspect of section 401 certification or the 2020 Rule.
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    The Agency is now proposing to revise the 2020 Rule to better 
reflect the cooperative federalism framework and text of the 1972 
statutory amendments and provide needed clarity on issues such as scope 
of certification and the reasonable period of time for a certifying 
authority to act. The proposed rule would modify the regulatory text 
implementing section 401 to support a more efficient, effective, and 
predictable certifying authority-driven certification process 
consistent with the water quality protection and other policy goals of 
Executive Order 13990. The Agency is also proposing conforming 
amendments to the water quality certification regulations for EPA-
issued NPDES permits.

II. Public Participation

A. Written Comments

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2022-
0128, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section above. Once 
submitted, comments cannot be edited or removed from the docket. EPA 
may publish any comment received to its public docket. Do not submit to 
EPA's docket at https://www.regulations.gov any information you 
consider to be Confidential Business Information (CBI) or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

B. Virtual Public Hearing

    Please note that because of current Centers for Disease Control and 
Prevention (CDC) recommendations, as well as state and local orders for 
social distancing to limit the spread of COVID-19, EPA does not 
anticipate holding in-person public meetings at this time. EPA is 
hosting a virtual public hearing on Monday, July 18, 2022; the public 
hearing will consist of three virtual sessions, which will be recorded 
for transcription purposes.
    EPA will begin pre-registering speakers for the hearing upon 
publication of this document in the Federal Register. To register to 
speak at or attend the virtual hearing on July 18, 2022, please use the 
online registration form available at https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification. The 
last day to pre-register to speak at the hearing will be July 12, 2022, 
three working days before the hearing date. On July 15, 2022, EPA will 
post a general agenda for the hearing that will list pre-registered 
speakers in approximate order at: https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification.
    EPA will make every effort to follow the schedule as closely as 
possible on the day of the hearing; however, please plan for the 
hearing sessions to run either ahead of schedule or behind schedule. A 
public hearing session may end ahead of schedule if all interested 
speakers have had the opportunity to participate and if no other 
speakers come forward within 15 minutes of the last speaker.
    Each commenter will have five minutes to give their name and 
affiliation, and provide oral testimony. EPA encourages commenters to 
provide the Agency with a copy of their oral testimony electronically 
by emailing it to [email protected]. EPA also recommends submitting the 
text of your oral comments as written comments to the rulemaking 
docket.
    EPA may ask clarifying questions during the oral presentations but 
will not respond to the presentations at that time. Written statements 
and supporting information submitted during the comment period will be 
considered with the same weight as oral comments and supporting 
information presented at the public hearing.
    Please note that any updates made to any aspect of the hearing will 
be posted online at https://www.epa.gov/cwa-401/upcoming-outreach-and-engagement-cwa-section-401-certification. While EPA expects the hearing 
to go forward as set forth above, please monitor our website or contact 
[email protected] to determine if there are any updates. EPA does not 
intend to publish a document in the Federal Register announcing 
updates.
    If you require the services of a translator or special 
accommodations such as audio description, please pre-register for the 
hearing with [email protected] and describe your needs by July 5, 2022. 
EPA may not be able to arrange accommodations without advanced notice.

III. General Information

A. What action is the Agency taking?

    In this action, the Agency is publishing a proposed rule to replace 
its currently effective water quality

[[Page 35321]]

certification regulations at 40 CFR part 121.

B. What is the Agency's authority for taking this action?

    The authority for this action is the Federal Water Pollution 
Control Act, 33 U.S.C. 1251 et seq., including but not limited to 
sections 101(d), 304(h), 401, 402, and 501(a).

C. What are the incremental costs and benefits of this action?

    The Agency prepared the Economic Analysis for the Proposed ``Clean 
Water Act Section 401 Water Quality Certification Improvement Rule'' 
(``Economic Analysis for the Proposed Rule''), available in the 
rulemaking docket, for informational purposes to analyze the potential 
costs and benefits associated with this proposed action. The analysis 
is summarized in section VI in this preamble. The Economic Analysis for 
the Proposed Rule is qualitative because of significant limitations and 
uncertainties associated with estimating the incremental costs and 
benefits of the proposed rule; see section VI of this preamble for 
further discussion.

IV. Background

A. Development of Section 401

    In 1965, Congress amended the Federal Water Pollution Control Act 
(FWPCA) to require states, or, where a state failed to act, the newly 
created Federal Water Pollution Control Administration, to promulgate 
water quality standards for interstate waters within each state. Water 
Quality Act of 1965, Public Law 89-234, 79 Stat. 903 (October 2, 1965). 
These standards were meant ``to protect the public health or welfare, 
enhance the quality of water and serve the purposes of [the] Act,'' 
which included ``enhanc[ing] the quality and value of our water 
resources and [] establish[ing] a national policy for the prevention, 
control, and abatement of water pollution.'' Id. Yet, only a few years 
later, while debating potential amendments to the FWPCA, Congress 
discovered that, despite that laudable national policy, states faced 
obstacles to achieving these newly developed water quality standards 
because of an unexpected source: Federal agencies. Instead of helping 
states cooperatively achieve these Federal policy objectives, Federal 
agencies were ``sometimes . . . a culprit with considerable 
responsibility for the pollution problem which is present.'' 115 Cong. 
Rec. 9011, 9030 (April 15, 1969). Federal agencies were issuing 
licenses and permits ``without any assurance that [water quality] 
standards [would] be met or even considered.'' S. Rep. No. 91-351, at 3 
(August 7, 1969). As a result, states, industry groups, conservation 
groups, and the public alike ``questioned the justification for 
requiring compliance with water quality standards'' if Federal agencies 
themselves would not comply with those standards. Id. at 7.
    In response to such concerns, Congress introduced language that 
would bolster state authority to protect their waters and ensure 
federally licensed or permitted projects would not ``in fact become a 
source of pollution'' either through ``inadequate planning or 
otherwise.'' 115 Cong. Rec. 9011, 9030 (April 15, 1969). Under this new 
provision, instead of relying on the Federal Government to ensure 
compliance with water quality standards, states would be granted the 
power to certify that there was reasonable assurance that federally 
licensed or permitted activities would meet water quality standards 
before such a license or permit could be issued. Ultimately, Congress 
added this new provision as section 21(b) of the Water Quality 
Improvement Act of 1970, Public Law 91-224, 84 Stat. 91 (April 3, 
1970).
    Under section 21(b)(1), applicants for Federal licenses or permits 
were required to obtain state certification that there was reasonable 
assurance that any federally licensed or permitted activity that may 
result in any discharge into navigable waters would not violate 
applicable water quality standards. Id. Additionally, section 21(b) 
also provided a role for other potentially affected states, discussed 
scenarios under which state certification for both Federal construction 
and operation licenses or permits may be necessary, and provided an 
opportunity for a Federal license or permit to be suspended for 
violating applicable water quality standards. Section 21(b) embodied 
the cooperative federalism principles from the 1965 amendments by 
providing states with the opportunity to influence, yet not 
``frustrate,'' the Federal licensing or permitting process. See 115 
Cong. Rec. 28875, 28971 (October 7, 1969) (noting the idea of state 
certification ``[arose] out of policy of the 1965 Act that the primary 
responsibility for controlling water pollution rests with the 
States''); see also H.R. Rep. No. 91-940, at 54-55 (March 24, 1970) 
(Conf. Rep) (adding a timeline for state certification ``[i]n order to 
insure that sheer inactivity by the State . . . will not frustrate the 
Federal application'').
    In 1972, Congress significantly revised the statutory water quality 
protection framework.\14\ Clean Water Act, Public Law 92-500, 86 Stat. 
816, as amended, Public Law 95-217, 91 Stat. 1566, 33 U.S.C. 1251 et 
seq. While doing so, Congress reaffirmed ``the primary responsibilities 
and rights of States to prevent, reduce, and eliminate pollution.'' 
\15\ To this end, the 1972 amendments included section 401, which 
Congress considered to be ``substantially section 21(b) of the existing 
law amended to assure that it conforms and is consistent with the new 
requirements of the Federal Water Pollution Control Act.'' H.R. Rep. 
No. 92-911 at 121 (1972). These ``new requirements'' of the 1972 Act 
reflected a ``changed emphasis from water quality standards to effluent 
limitations based on the elimination of any discharge of pollutants.'' 
S. Rep. No. 92-414 at 69 (1971). As a result, unlike section 21(b) 
which focused only on compliance with water quality standards, section 
401 required applicants for Federal licenses and permits to obtain 
state certification of compliance with the newly developed provisions 
focused on achieving effluent limitations. 33 U.S.C. 1341(a)(1). A few 
years later, Congress amended section 401 to correct an omission from 
the 1972 statute and clarify that it still intended for states to also 
certify compliance with water quality standards. See H.R. Rep. No. 95-
830, at 96 (1977) (inserting section 303 in the list of applicable 
provisions throughout section 401).\16\
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    \14\ City of Milwaukee v. Illinois, 451 U.S. 304, 310, 317 
(1981).
    \15\ 33 U.S.C. 1251(b).
    \16\ The conference substitute noted that ``[t]he inserting of 
section 303 into the series of sections listed in section 401 is 
intended to mean that a federally licensed or permitted activity, 
including discharge permits under section 402, must be certified to 
comply with State water quality standards adopted under section 303. 
The inclusion of section 303 is intended to clarify the requirements 
of section 401. It is understood that section 303 is required by the 
provisions of section 301. Thus, the inclusion of section 303 in 
section 401 while at the same time not including section 303 in the 
other sections of the Act where sections 301, 302, 306, and 307 are 
listed is in no way intended to imply that 303 is not included by 
reference to 301 in those other places in the Act, such as sections 
301, 309, 402, and 509 and any other point where they are listed. 
Section 303 is always included by reference where section 301 is 
listed.'' Id.
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    Section 401 of the 1972 Act also introduced a new subsection, 
subsection (d), that explicitly provided states with the ability to 
include ``effluent limitations and other limitations, and monitoring 
requirements'' in their certification to assure that the applicant will 
comply not only with sections 301, 302, 306, and 307, but also with 
``any other appropriate requirement of State law.'' Id. at 1341(d). In 
subsection (d),

[[Page 35322]]

Congress also provided that any certification ``shall become a 
condition on any Federal license or permit.'' Id.; see also S. Rep. No. 
92-414, at 69 (1971) (``The certification provided by a State in 
connection with any Federal license or permit must set forth effluent 
limitations and monitoring requirements necessary to comply with the 
provisions of this Act or under State law and such a certification 
becomes an enforceable condition on the Federal license or permit.''). 
Consistent with Congress's intent to empower states to protect their 
waters from the effects of federally licensed or permitted projects, 
this provision ``assure[d] that Federal licensing or permitting 
agencies cannot override State water quality requirements.'' S. Rep. 
No. 92-414, at 69 (1971).

B. Overview of CWA Section 401 Requirements

    Under CWA section 401, a Federal agency may not issue a license or 
permit to conduct any activity that may result in any discharge into a 
water of the United States, unless the certifying authority where the 
discharge would originate either issues a CWA section 401 water quality 
certification or waives certification. 33 U.S.C. 1341(a)(1). The 
applicant for the Federal license or permit that requires section 401 
certification is responsible for obtaining certification or a waiver 
from the certifying authority, which could be a state, territory, 
authorized tribe, or EPA, depending on where the discharge originates. 
To initiate the certification process, Federal license or permit 
applicants must submit a ``request for certification'' to the 
appropriate certifying authority. The certifying authority must act 
upon the request within a ``reasonable period of time (which shall not 
exceed one year).'' Id. Additionally, during the reasonable period of 
time, certifying authorities must provide public notice of a 
certification request, and where appropriate, hold a public hearing. 
Id.
    If a certifying authority determines that a discharge will comply 
with the listed provisions in section 401(a)(1), it may grant or waive 
certification. When granting a CWA section 401 certification, 
certifying authorities must include conditions (e.g., ``effluent 
limitations and other limitations, and monitoring requirements'') 
pursuant to CWA section 401(d) necessary to assure that the applicant 
for a Federal license or permit will comply with applicable provisions 
of CWA sections 301, 302, 306, and 307, and with ``any other 
appropriate requirement of State law.'' Id. at 1341(d). If a certifying 
authority grants certification with conditions, that certification 
shall become a condition on the Federal license or permit. Id. Once an 
applicant provides a Federal agency with a certification, the Federal 
agency may issue the license or permit. Id. at 1341(a)(1).
    If a certifying authority is unable to provide such certification, 
the certifying authority may deny or waive certification. If 
certification is denied, the Federal agency cannot issue the Federal 
license or permit. If certification is waived, the Federal agency may 
issue the Federal license or permit. Certifying authorities may waive 
certification expressly, or they may waive certification by ``fail[ing] 
or refus[ing] to act on a request for certification within a reasonable 
period of time.'' Either way, the Federal licensing or permitting 
agency may issue the Federal license or permit. Id.
    Although Congress provided section 401 certification authority to 
the jurisdiction in which the discharge originates, Congress also 
recognized that another state's or authorized tribe's water quality may 
be affected by the discharge, and it created an opportunity for such a 
state or tribe to raise objections to, and request a hearing on, the 
Federal license or permit. See id. at 1341(a)(2). Section 401(a)(2) 
requires the Federal agency to ``immediately notify'' EPA ``upon 
receipt'' of a ``[license or permit] application and certification.'' 
Id. EPA in turn has 30 days from that notification to determine whether 
the discharge ``may affect'' the water quality of any other state or 
authorized tribe. Id. If the Agency makes a ``may affect'' 
determination, it must notify the other state or authorized tribe, the 
Federal agency, and the applicant. The other state or authorized tribe 
then has 60 days to determine whether the discharge will violate its 
water quality requirements. If the other state or authorized tribe 
makes such a determination within those 60 days, it must notify EPA and 
the Federal agency, in writing, of its objection(s) to the issuance of 
the Federal license or permit and request a public hearing. Id. The 
Federal licensing or permitting agency is responsible for holding the 
public hearing. At the hearing, EPA is required to submit its 
evaluation and recommendations regarding the objection. Based on the 
recommendations from the objecting state or authorized tribe and EPA's 
own evaluation and recommendation, as well as any evidence presented at 
the hearing, the Federal agency is required to condition the license or 
permit ``in such manner as may be necessary to insure compliance with 
applicable water quality requirements.'' Id. The license or permit may 
not be issued ``if the imposition of conditions cannot ensure such 
compliance.'' Id.
    Section 401 also addresses when an applicant must provide separate 
certifications for a facility's Federal construction license or permit 
and any necessary Federal operating license or permit. Under section 
401(a)(3), an applicant may rely on the same certification obtained for 
the construction of a facility for any Federal operating license or 
permit for the facility if (1) the Federal agency issuing the operating 
license or permit notifies the certifying authority, and (2) the 
certifying authority does not within 60 days thereafter notify the 
Federal agency that ``there is no longer reasonable assurance that 
there will be compliance with applicable provisions of sections [301, 
302, 303, 306 and 307 of the CWA].'' Id.\17\
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    \17\ Section 401(a)(3) identifies the bases a certifying 
authority may rely upon for finding that there is no longer 
reasonable assurance. These are changes after certification was 
granted in: construction or operation of the facility, 
characteristics of the water where the discharge occurs, or the 
applicable water quality criteria or effluent limits or other 
requirements. Id. at 1341(a)(3).
---------------------------------------------------------------------------

    Sections 401(a)(4) and (a)(5) discuss circumstances where the 
certified Federal license or permit may be suspended by the Federal 
agency. First, a Federal agency may suspend a license or permit where a 
certifying authority determines during a pre-operation inspection of 
the facility or activity that it will violate applicable water quality 
requirements. Id. at 1341(a)(4). This pre-operation inspection and 
possible suspension apply only where a facility or activity does not 
require a separate operating license or permit. Under section 401, the 
Federal agency may not suspend the license or permit unless it holds a 
public hearing.\18\ Id. Once a license or permit is suspended, it must 
remain suspended until the certifying authority notifies the Federal 
agency that there is reasonable assurance that the facility or activity 
will not violate applicable water quality requirements. Id. Second, a 
Federal agency may suspend or revoke a certified license or permit if a 
judgment is entered under the CWA that the facility or activity 
violated applicable provisions of sections 301, 302, 303, 306, or 307 
of the CWA. Id. at 1341(a)(5). Section 401 not only identifies the 
roles and obligations of Federal license or permit applicants, 
certifying authorities, and Federal agencies, it also provides specific 
roles

[[Page 35323]]

for EPA. First, EPA may act as a certifying authority where a state or 
tribe ``has no authority to give such certification.'' Id. at 
1341(a)(1). Second, as discussed above, EPA is responsible for 
notifying other states or authorized tribes that may be affected by a 
discharge from a federally licensed or permitted activity, and where 
required, for providing an evaluation and recommendation(s) on such 
other state or authorized tribe's objections. Id. at 1341(a)(2). 
Lastly, EPA is responsible for providing technical assistance upon 
request from Federal agencies, certifying authorities, or Federal 
license or permit applicants. Id. at 1341(b).
---------------------------------------------------------------------------

    \18\ Each Federal licensing or permitting agency may have its 
own regulations regarding additional processes for suspending a 
license or permit.
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C. Prior Rulemaking Efforts Addressing Section 401

    In the last 50 years, EPA has undertaken two rulemaking efforts 
focused solely on addressing water quality certification, one of which 
preceded the 1972 enactment of the CWA. The Agency has also developed 
several guidance documents on the section 401 process. This section of 
the preamble discusses EPA's major rulemaking and guidance efforts over 
the last 50 years, including most recently, the 2020 Rule and EPA's 
review of it pursuant to Executive Order 13990.
1. 1971 Rule
    In February 1971, EPA proposed regulations implementing section 
401's predecessor provision, section 21(b). 36 FR 2516 (February 5, 
1971). Those proposed regulations were divided into four subparts, one 
of which provided ``definitions of general applicability for the 
regulations and would provide for the uniform content and form of 
certification.'' The other three subparts focused on EPA's roles. Id. 
In May 1971, after receiving public comments, EPA finalized the water 
quality certification regulations with the proposed four-part structure 
at 18 CFR part 615. 36 FR 8563 (May 8, 1971).
    The first subpart of the 1971 Rule (subpart A) established 
requirements that applied generally to all stakeholders in the 
certification process, including an identification of information that 
all certifying authorities must include in a certification. According 
to the 1971 Rule, a certifying authority was required to include 
several components in a certification, including the name and address 
of the project applicant; a statement that the certifying authority 
either examined the Federal license or permit application or examined 
other information from the project applicant and, based upon that 
evaluation, concluded that ``there is reasonable assurance that the 
activity will be conducted in a manner which will not violate 
applicable water quality standards;'' any conditions that the 
certifying authority deemed ``necessary or desirable for the discharge 
of the activity;'' and any other information the certifying authority 
deemed appropriate. 40 CFR 121.2(a) (2019). Additionally, the 1971 Rule 
allowed for modifications to certifications upon agreement by the 
certifying authority, the Federal licensing or permitting agency, and 
EPA. Id. at Sec.  121.2(b) (2019).
    The second subpart of the 1971 Rule (subpart B) established a 
process for EPA to provide notification of potential water quality 
affects to other potentially affected jurisdictions. Under the 1971 
Rule, the Regional Administrator was required to review the Federal 
license or permit application, the certification or waiver, and, where 
requested by EPA, any supplemental information provided by the Federal 
licensing or permitting agency.\19\ If the Regional Administrator 
determined that there was ``reason to believe that a discharge may 
affect the quality of the waters of any State or States other than the 
State in which the discharge originates,'' the Regional Administrator 
would notify each affected state within 30 days of receipt of the 
application materials and certification. Id. at Sec. Sec.  121.13, 
121.16 (2019). In cases where the Federal licensing or permitting 
agency held a public hearing on the objection raised by an affected 
jurisdiction, the Federal agency was required to forward notice of such 
objection to the Regional Administrator no later than 30 days prior to 
the hearing. Id. at Sec.  121.15 (2019). At the hearing, the Regional 
Administrator was required to submit an evaluation and 
``recommendations as to whether and under what conditions the license 
or permit should be issued.'' Id.
---------------------------------------------------------------------------

    \19\ If the documents provided are insufficient to make the 
determination, the Regional Administrator can request any 
supplemental information ``as may be required to make the 
determination.'' 40 CFR 121.12.
---------------------------------------------------------------------------

    Subpart B also provided that certifying authorities may waive the 
certification requirement under two circumstances: first, when the 
certifying authority sends written notification expressly waiving its 
authority to act on a request for certification; and second, when the 
Federal licensing or permitting agency sends written notification to 
the EPA Regional Administrator that the certifying authority failed to 
act on a certification request within a reasonable period of time after 
receipt of such a request. Id. at Sec.  121.16 (2019). The 1971 Rule 
provided that the Federal licensing or permitting agency determined 
what constitutes a ``reasonable period of time,'' and that the period 
shall generally be six months, but in any event, not exceed one year. 
Id. at Sec.  121.16(b) (2019).
    The third subpart of the 1971 Rule (subpart C) established 
requirements that only applied when EPA acted as the certifying 
authority, including identifying specific information that must be 
included in a certification request. The project applicant was required 
to submit to the EPA Regional Administrator a signed request for 
certification that included a ``complete description of the discharge 
involved in the activity for which certification is sought,'' which 
included five items: the name and address of the project applicant, a 
description of the facility or activity and of any related discharge 
into waters of the United States, a description of the function and 
operation of wastewater treatment equipment, dates on which the 
activity and associated discharge would begin and end, and a 
description of the methods to be used to monitor the quality and 
characteristics of the discharge. Id. at Sec.  121.22 (2019). Once the 
request was submitted to EPA, the Regional Administrator was required 
to provide public notice of the request and an opportunity to comment. 
The 1971 Rule specifically stated that ``[a]ll interested and affected 
parties will be given reasonable opportunity to present evidence and 
testimony at a public hearing on the question whether to grant or deny 
certification if the Regional Administrator determined that such a 
hearing is necessary or appropriate.'' Id. at Sec.  121.23 (2019). If, 
after consideration of relevant information, the Regional Administrator 
determines that there is ``reasonable assurance that the proposed 
activity will not result in a violation of applicable water quality 
standards,'' the Regional Administrator would issue the certification. 
Id. at Sec.  121.24 (2019).
    The fourth and final subpart of the 1971 Rule (subpart D) provided 
that the Regional Administrator ``may, and upon request shall'' provide 
Federal licensing and permitting agencies with information regarding 
water quality standards and advise them as to the status of compliance 
by dischargers with the conditions and requirements of applicable water 
quality standards. Id. at Sec.  121.30 (2019).
    In November 1971, EPA reorganized and transferred several 
regulations, including the water quality certification regulations, 
into title 40 of the Code of Federal Regulations. EPA subsequently

[[Page 35324]]

redesignated the water quality certification regulations twice in the 
1970s. See 36 FR 22369, 22487 (November 25, 1971), redesignated at 37 
FR 21441 (October 11, 1972), further redesignated at 44 FR 32854, 32899 
(June 7, 1979). The last redesignation effort was part of a rulemaking 
that extensively revised the Agency's NPDES regulations. In the revised 
NPDES regulations, EPA addressed water quality certifications on EPA-
issued NPDES permits separate from the 1971 Rule. EPA acknowledged that 
the 1971 Rule was ``in need of revision'' because the ``substance of 
these regulations predates the 1972 amendments to the Clean Water 
Act.'' 44 FR 32880. However, EPA declined to revise the 1971 Rule 
because it had not consulted the other Federal agencies impacted by the 
water quality certification process. Id. at 32856. Instead, the Agency 
finalized regulations applicable to certification on EPA-issued NPDES 
permits. Id. at 32880. These regulations, which included a default 
reasonable period of time of 60 days, limitations on certification 
modifications, and requirements for certification conditions, were 
developed in response to practical challenges and issues arising from 
certification on EPA-issued permits. Id. Ultimately, despite the 
changes Congress made to the statutory text in 1972 and opportunities 
it had to revisit the regulatory text during redesignation efforts in 
the 1970s, EPA did not substantively change the 1971 Rule until 2020.
2. EPA Guidance on 1971 Rule
    Although EPA did not pursue any rulemaking efforts until 2019, the 
Agency issued three national guidance documents on the water quality 
certification process set forth by the 1971 Rule. The first and second 
guidance documents recognized the vital role section 401 certification 
can play in protecting state and tribal water quality, sought to inform 
states and tribes how to use the certification program to protect their 
waters, and explained how to leverage available resources to operate or 
expand their certification programs. These documents provided states 
and tribes with background on the certification process, discussed the 
relevant case law, and identified data sources that could inform the 
certification review process. Additionally, both documents provided 
tangible examples of state and tribal experiences with section 401 that 
could inform other states and tribes interested in developing their 
certification programs.
    The first guidance document, issued in 1989, focused on how states 
and tribes could use water quality certifications to protect wetlands. 
Wetlands and 401 Certification: Opportunities and Guidelines for States 
and Eligible Indian Tribes (April 1989) (``1989 Guidance''). While the 
guidance document focused on the use of water quality certifications in 
lieu of, or in addition to, state or tribal wetlands regulatory 
programs, it provided helpful background information on the 
certification process. It also highlighted various state programs and 
water quality certification practices to demonstrate how other 
certifying authorities could approach the certification process. For 
example, the guidance document highlighted a certification denial 
issued by the Pennsylvania Department of Environmental Resources to 
illustrate that ``all of the potential effects of a proposed activity 
on water quality--direct and indirect, short and long term, upstream 
and downstream, construction and operation--should be part of a State's 
certification review.'' Id. at 22-23. Additionally, the 1989 Guidance 
discussed considerations states or tribes could examine when developing 
their own section 401 implementing regulations, as well as programs and 
resources states and tribes could look to for technical support when 
making certification decisions. Id. at 30-37.
    The second guidance document, issued in 2010, reflected the 
development of case law and state and tribal program experiences over 
the two decades following the 1989 Guidance. Clean Water Act Section 
401 Water Quality Certification: A Water Quality Protection Tool for 
States and Tribes (May 2010) (``2010 Handbook'') (rescinded). Instead 
of focusing on certifications in the context of wetland protection, the 
2010 Guidance focused more broadly on how the certification process 
could help states and tribes achieve their water quality goals. Like 
the 1989 Guidance, the 2010 Guidance discussed the certification 
process, using state and tribal programs as examples, and explored 
methods and means for states and tribes to leverage available funding, 
staffing, and data sources to fully implement a water quality 
certification program. This guidance document was rescinded on June 7, 
2019, concurrent with the publication of the third guidance document.
    The third guidance document was issued in 2019 pursuant to 
Executive Order 13868 (now revoked). Clean Water Act Section 401 
Guidance for Federal Agencies, States and Authorized Tribes (June 2019) 
(``2019 Guidance'') (rescinded). The 2019 guidance document said it was 
meant to ``facilitate consistent implementation of section 401 and 1971 
certification regulations'' because the 2010 Handbook allegedly did not 
``reflect current case law interpreting CWA section 401.'' 85 FR 42213. 
The guidance document focused on three topics: timeline for 
certification review and action, the scope of section 401, and the 
information within the scope of a certifying authority's review. 2019 
Guidance, at 1. The 2019 Guidance was rescinded on July 13, 2020, 
concurrent with the publication of the final 2020 Rule.
3. Development of the 2020 Rule
    In addition to directing EPA to review its 2010 Handbook and issue 
new section 401 guidance, Executive Order 13868 also directed EPA to 
review the 1971 Rule and (1) issue a new proposed regulation within 120 
days and (2) issue a final regulation within 13 months. 84 FR 13495, 
13496 (April 15, 2019). It directed the Agency to focus on various 
aspects of the certification process such as the scope of review, and 
determine whether ``any provisions thereof should be clarified to be 
consistent with the policies described in section 2 of [the] order.'' 
Id. EPA released the proposed rule on August 22, 2019.\20\ EPA 
promulgated a final rule on July 13, 2020. Clean Water Act Section 401 
Certification Rule, 85 FR 42210 (July 13, 2020) (``2020 Rule'').
---------------------------------------------------------------------------

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

    The 2020 Rule reaffirmed that Federal agencies unilaterally set the 
reasonable period of time, clarified that the certification requirement 
was triggered by a federally licensed or permitted discharge into a 
``water of the United States,'' and reaffirmed that certifying 
authorities may explicitly waive certification. The 2020 Rule also 
introduced several new features including one that allowed Federal 
agencies to review certification decisions for compliance with the 2020 
Rule's requirements and, if the certification decision did not comply 
with these requirements, allowed Federal agencies to deem such non-
compliant certifications as waived. The 2020 Rule, citing Hoopa Valley 
Tribe v. FERC, 913 F.3d 1099 (DC Cir. 2019), prohibited a certifying 
authority from requesting a project applicant to withdraw and resubmit 
a certification request. The 2020 Rule also rejected the scope of 
certification review (``activity as a whole'') affirmed by the Supreme 
Court in PUD No. 1 of Jefferson County

[[Page 35325]]

v. Washington Department of Ecology, 511 U.S. 700 (1994), in favor of a 
more truncated interpretation (``discharge-only'' approach) favored by 
two dissenting Justices in that case.
    Following publication, the 2020 Rule was subject to legal challenge 
in three Federal district courts by states, tribes, and non-
governmental organizations.\21\ On October 21, 2021, following 
extensive briefing and a hearing on EPA's motion for remand without 
vacatur, the U.S. District Court for the Northern District of 
California remanded and vacated \22\ the 2020 Rule. In re Clean Water 
Act Rulemaking, No. 3:20-cv-04636-WHA, 2021 WL 4924844 (N.D. Cal. 
October 21, 2021). The court found that vacatur was appropriate ``in 
light of the lack of reasoned decision-making and apparent errors in 
the rule's scope of certification, indications that the rule 
contravenes the structure and purpose of the Clean Water Act, and that 
EPA itself has signaled that it could not or would not adopt the same 
rule upon remand.'' Slip op. at 14-15, 2021 WL 4924844, at *8. The 
court order required a temporary return to EPA's 1971 Rule until EPA 
finalizes a new rule.\23\ This case is currently on appeal by industry 
stakeholders and eight states in the U.S. Court of Appeals for the 
Ninth Circuit. On March 21, 2022, industry stakeholders and eight 
states filed an application for a stay of the vacatur pending appeal in 
the Ninth Circuit. On April 6, 2022, the U.S. Supreme Court granted the 
application for a stay of the vacatur pending resolution of the appeal 
of the vacatur in the Ninth Circuit. Louisiana v. Am. Rivers, No. 
21A539 (S. Ct. April 6, 2022).
---------------------------------------------------------------------------

    \21\ In Re Clean Water Act Rulemaking, No. 3:20-cv-04636-WHA 
(N.D. Cal.); Delaware Riverkeeper et al. v. EPA, No. 2:20-cv-03412 
(E.D.P.A.); S.C. Coastal Conservation League v. EPA, No. 2:20-cv-
03062 (D.S.C.).
    \22\ To remand a rule means that the court returns the rule to 
the Agency for further action. To vacate a rule means that the court 
decides that rule is null and void.
    \23\ The two other courts also remanded the 2020 Rule to EPA, 
but without vacatur. Order, Delaware Riverkeeper v. EPA, No. 2:20-
cv-03412 (E.D. Pa. August 6, 2021) (determining that vacatur was not 
appropriate because the court ``has not yet, and will not, make a 
finding on the substantive validity of the Certification Rule''); 
Order, S.C. Coastal Conservation League v. EPA, No. 2:20-cv-03062 
(D.S.C. August 2, 2021) (remanding without vacating).
---------------------------------------------------------------------------

4. Executive Order 13990 and Review of the 2020 Rule
    On January 20, 2021, President Biden signed Executive Order 13990, 
Protecting Public Health and the Environment and Restoring Science to 
Tackle the Climate Crisis (E.O.). 86 FR 7037 (published January 25, 
2021, signed January 20, 2021). The E.O. provides that it's the policy 
of the Administration to listen to the science; to improve public 
health and protect our environment; to ensure access to clean air and 
water; to limit exposure to dangerous chemicals and pesticides; to hold 
polluters accountable, including those who disproportionately harm 
communities of color and low-income communities; to reduce greenhouse 
gas emissions; to bolster resilience to the impacts of climate change; 
to restore and expand our national treasures and monuments; and to 
prioritize both environmental justice and the creation of the well-
paying union jobs necessary to deliver on these goals. Id. at 7037, 
Section 1. The E.O. ``directs all executive departments and agencies 
(agencies) to immediately review and, as appropriate and consistent 
with applicable law, take action to address the promulgation of Federal 
regulations and other actions during the last 4 years that conflict 
with these important national objectives, and to immediately commence 
work to confront the climate crisis.'' Id. ``For any such actions 
identified by the agencies, the heads of agencies shall, as appropriate 
and consistent with applicable law, consider suspending, revising, or 
rescinding the agency actions.'' Id., Section 2(a). The E.O. also 
revoked Executive Order 13868 of April 10, 2019 (Promoting Energy 
Infrastructure and Economic Growth), which initiated development of the 
2020 Rule. The 2020 Rule also was specifically identified for review 
under the E.O. See Fact Sheet: List of Agency Actions for Review, 
available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/ (last 
visited on January 27, 2022).
    EPA reviewed the 2020 Rule in accordance with Executive Order 
13990, and in the spring of 2021, determined that it would propose 
revisions to the 2020 Rule through a new rulemaking effort. See Notice 
of Intention to Reconsider and Revise the Clean Water Act Section 401 
Certification Rule, 86 FR 29541 (June 2, 2021). EPA considered a number 
of factors in making this determination, including but not limited to: 
the text of CWA section 401; Congressional intent and the cooperative 
federalism framework of CWA section 401; concerns raised by 
stakeholders about the 2020 Rule, including implementation related 
feedback; the principles outlined in the E.O. and issues raised in 
ongoing litigation challenging the 2020 Rule. Id. In particular, the 
Agency identified substantial concerns about whether portions of the 
2020 Rule impinged on the cooperative federalism principles central to 
CWA section 401. The Agency identified this and other concerns as they 
related to different provisions of the 2020 Rule including 
certification requests, the reasonable period of time, scope of 
certification, certification actions and Federal agency review, 
enforcement, and modifications. See id. at 29543-44.
    Agencies have inherent authority to reconsider past decisions and 
to revise, replace, or repeal a decision to the extent permitted by law 
and supported by a reasoned explanation. FCC v. Fox Television 
Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox''); Motor Vehicle Mfrs. 
Ass'n of the U.S., Inc. v. State Farm Mutual Automobile Ins. Co., 463 
U.S. 29, 42 (1983); see also Encino Motorcars, LLC v. Navarro, 579 U.S. 
211, 221 (2016) (``Agencies are free to change their existing policies 
as long as they provide a reasoned explanation for the change.''). Such 
a decision need not be based upon a change of facts or circumstances. A 
revised rulemaking based ``on a reevaluation of which policy would be 
better in light of the facts'' is ``well within an agency's 
discretion.'' Nat'l Ass'n of Home Builders v. EPA, 682 F.3d 1032, 1038 
& 1043 (DC Cir. 2012) (citing Fox, 556 U.S. at 514-15). The Agency has 
reviewed the 2020 Rule and determined that the rule should be replaced.
    Accordingly, EPA is now proposing to revise the 2020 Rule to be 
fully consistent with the 1972 CWA amendments, the Agency's legal 
authority, and the principles outlined in Executive Order 13990. This 
proposed rule would revise and replace the 2020 Rule to better reflect 
the 1972 CWA's statutory text, the legislative history regarding 
section 401, and the broad water quality protection goals of the Act. 
In addition, the proposed rule will clarify certain aspects of section 
401 implementation that have evolved in response to over 50 years of 
judicial interpretation and certifying authority practice, and support 
an efficient and predictable water quality certification process that 
is consistent with the cooperative federalism principles central to CWA 
section 401.

D. Summary of Stakeholder Outreach

    Following the publication of EPA's notice of intent to revise the 
2020 Rule, the Agency opened a public docket to receive written pre-
proposal recommendations for a 60-day period beginning on June 2, 2021, 
and concluding on August 2, 2021. The

[[Page 35326]]

Agency received nearly 3,000 recommendations from members of the 
public, which can be found in the pre-proposal docket. See Docket ID 
No. EPA-HQ-OW-2021-0302. The Federal Register publication requested 
feedback related to key issues identified during implementation of the 
2020 Rule, including but not limited to issues regarding pre-filing 
meeting requests, certification requests, reasonable period of time, 
scope of certification, certification actions and Federal agency 
review, enforcement, modifications, neighboring jurisdictions, data and 
other information, and implementation coordination. See 86 FR 29543-44.
    EPA also held a series of virtual listening sessions for certifying 
authorities (June 14, June 23, and June 24, 2021), project applicants 
(June 15, 2021), and the public (June 15, June 23, 2021) to gain 
further pre-proposal input. See id. at 29544 (announcing EPA's 
intention to hold multiple webinar-based listening sessions). EPA also 
met with stakeholders upon request during development of this proposed 
rule. More information about the outreach and engagement conducted by 
EPA during the pre-proposal input period can be found in Docket ID No. 
EPA-HQ-OW-2022-0128. Additionally, EPA also met with other Federal 
licensing and permitting agencies to solicit feedback on the Federal 
Register publication. At the virtual listening sessions, the Agency 
provided a presentation that provided background on section 401 and 
prior Agency actions and sought input on the Agency's intent to revise 
the 2020 Rule and the specific issues included in the Federal Register 
publication described above.
    The Agency heard from stakeholders representing a diverse range of 
interests and positions and received a wide variety of recommendations 
and suggestions during this pre-proposal outreach process. Certifying 
authorities expressed concern about the limited role of states and 
tribes under the 2020 Rule, and they called for increased flexibility 
in implementing section 401 to fully protect their water resources. 
During the project proponent listening session, project proponents 
shared feedback about the need to streamline the certification process 
and recommended that the new rule prevent delays in determining 
certification decisions. In the general public listening sessions, 
speakers from non-governmental environmental and water conservation 
organizations reinforced the idea that states and tribes should be 
accorded greater deference in the certification process. An overarching 
theme articulated by many speakers from various stakeholder groups was 
the need for EPA's new rule to provide increased guidance and clarity.
    The Agency also initiated a tribal consultation and coordination 
process on June 7, 2021. The Agency engaged tribes over a 90-day 
consultation period during development of this proposed rule that 
concluded on September 7, 2021, including two tribal consultation 
kickoff webinars on June 29, 2021, and July 7, 2021. The Agency 
received consultation letters from eight tribes and three tribal 
organizations. The Agency did not receive any requests for consultation 
during this time, although several tribes expressed an interest in 
receiving additional information and ongoing engagement throughout the 
rulemaking process. The Agency anticipates that consultation meetings 
will be held with tribes during the rulemaking process. Several tribes 
commented that the 2020 Rule impaired or undermined tribal sovereignty 
and their ability to protect tribal waters. Many tribes provided input 
regarding section 401 certification process improvements. Most tribes 
were generally positive about a provision for a pre-filing meeting 
request, however some had concerns that the 30-day wait period (before 
a project proponent could request certification) is very rigid and 
would like to see more flexibility in allowing certifying authorities 
to waive the 30-day requirement. Some tribes believe ``the reasonable 
period of time'' should start when the application is deemed complete, 
not when the initial request for certification is received. Most tribes 
argued that the 2020 Rule's narrowing of the scope of certification was 
inconsistent with Congressional intent for tribes and states to have an 
effective tool to protect the quality of waters under their 
jurisdiction. A few tribal organizations expressed concern that current 
implementation of section 401(a)(2) does not protect off-reservation 
treaty rights from discharges. Additional information about the tribal 
consultation process can be found in section VII.F in this preamble and 
the Summary of Tribal Consultation and Coordination, which is available 
in the docket for this proposed rule.
    The Agency has considered the input it received as part of the 
tribal consultation process and other opportunities for pre-proposal 
recommendations. EPA welcomes feedback on this proposed rule through 
the upcoming virtual public hearing and the 60-day public comment 
period initiated through publication of this action. The Agency will 
consider comments received during the comment period on this proposal, 
and this consideration will be reflected in the final rule and 
supporting documents.

V. Proposed Rule

    EPA is the primary agency responsible for developing regulations 
and guidance to ensure effective implementation of all CWA programs, 
including section 401. See 33 U.S.C. 1251(d), 1361(a). The Agency is 
proposing to revise the section 401 regulations to better align its 
regulations with the cooperative federalism and water quality 
protection principles enshrined in the text and legislative history of 
the 1972 CWA. Additionally, the Agency is seeking to provide greater 
clarity and acknowledgment of essential water quality protection 
concepts from Executive Order 13990. In addition to providing a 
necessary regulatory reset on significant issues such as the scope of 
certification, Federal agency review, and the reasonable period of 
time, the Agency proposes to update the regulatory text to foster a 
more efficient and predictable certification process. As it has already 
demonstrated through its extensive pre-proposal outreach, EPA intends 
for this rulemaking to be well-informed by stakeholder input on all 
aspects of the certification process and welcomes comment on all facets 
of this proposal.
    In light of the proposed revisions to part 121, EPA is also 
proposing to make conforming changes to the part 124 regulations 
governing CWA section 401 certifications for EPA-issued NPDES permits. 
The purpose of these conforming changes is to ensure that--assuming the 
proposed part 121 changes are adopted--the part 124 regulations are 
consistent with the revised provisions of part 121. To that end, EPA is 
proposing to make targeted deletions to specific provisions of the 
regulations at 40 CFR 124.53 and 124.55 to conform those sections with 
this proposal, explicitly deleting 40 CFR 124.53(b), (c), and (e), as 
well as Sec.  124.55(b). EPA is also proposing to make targeted 
revisions to the regulations at 40 CFR 124.53(d), 124.54(a) and (b), 
124.55(a), (c), and (d), consistent with those proposed deletions and 
this proposal. EPA is also proposing to make targeted conforming 
revisions to the regulations at 40 CFR 122.4(b) and 122.44(d)(3). EPA 
explains in further detail the reasons for each conforming change 
(beyond mere technical revisions) following the preamble discussion of 
the part 121 proposal that necessitates conforming revisions to part 
124. EPA is seeking comment on whether the Agency has identified all 
changes to the part 124 regulations that conflict or potentially 
conflict with this proposal

[[Page 35327]]

and therefore need to be made to conform. This proposed part 121 
regulations would apply to all Federal licenses or permits subject to 
CWA section 401 certification.\24\ EPA accordingly intends for this 
part 121 proposal to apply to EPA-issued NPDES permits, even where EPA 
is not proposing conforming edits to part 124.
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    \24\ See proposed Sec.  121.1(e), (h) (defining ``Federal 
agency'' to mean ``any agency of the Federal Government to which 
application is made for a license or permit that is subject to Clean 
Water Act section 401,'' and similarly defining ``license or 
permit'' to mean ``any license or permit issued or granted by an 
agency of the Federal Government to conduct any activity which may 
result in any discharge into waters of the United States'').
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    EPA is also proposing to make several revisions to the definition 
section in light of this proposed rulemaking. EPA is proposing to make 
minor revisions to the definition of ``Administrator'', currently 
located at Sec.  121.1(a), to remove the reference to authorized 
representatives. Instead, the Agency is proposing to add a separate 
definition for ``Regional Administrator''. See proposed Sec.  121.1(k). 
The Agency is also proposing to remove the definition for 
``certification'', which is currently located at Sec.  121.1(b), 
because it does not believe it is necessary to define the term. 
Additionally, the Agency is proposing to remove the definition for 
``certified project'', currently located at Sec.  121.1(d), and 
``proposed project'', currently located at Sec.  121.1(k), because the 
Agency is not proposing to use these terms throughout other regulatory 
provisions. Other proposed revisions to regulatory definitions are 
discussed throughout this preamble; the Agency welcomes any comments on 
these definitions.

A. When Section 401 Certification Is Required

    In this proposed rulemaking, EPA is proposing a number of 
definitional and other revisions to clarify the circumstances under 
which a section 401 certification is required. These proposed revisions 
are consistent with the Agency's longstanding interpretation of section 
401, including in the 2020 Rule, that an applicant for a Federal 
license or permit to conduct any activity that may result in any point 
source discharge into the navigable waters is required to obtain a 
section 401 certification. Accordingly, the Agency is proposing minor 
revisions to the regulatory text currently located at Sec.  121.2 to 
affirm that a Federal license or permit for any potential point source 
discharge into a water of the United States requires a certification or 
waiver.
    With respect to the definition section, EPA is proposing to clarify 
the roles of the stakeholders in the certification process. First, the 
Agency is proposing non-substantive modifications to the definition of 
``Federal agency'' currently located at Sec.  121.1(g). Second, the 
Agency is proposing to retain the term ``project proponent'' to define 
the stakeholder seeking certification. While the term ``applicant'' is 
used in section 401, that term does not clearly reflect and include all 
the stakeholders who might seek certification. For example, Federal 
agencies themselves (and not third-party applicants) seek section 401 
certification on the issuance of general permits (e.g., U.S. Army Corps 
of Engineers' (Corps') Nationwide Permits, EPA's Construction General 
Permits). Additionally, contractors or other agents will often seek 
certification on behalf of a project applicant. The term ``project 
proponent'' is meant to include the applicant for a Federal license or 
permit, as well as any other entity that may seek certification (e.g., 
agent of an applicant or a Federal agency, such as EPA when it is the 
permitting authority for a National Pollutant Discharge Elimination 
System (NPDES) permit). Lastly, the Agency is proposing non-substantive 
changes to the definition of ``certifying authority'' currently located 
at Sec.  121.1(e). EPA is requesting comment on these definitions and 
the proposed language to clarify the circumstances under which section 
401 certification is required. EPA's rationale for determining when 
certification is required is discussed in further detail below.
1. Federally Licensed or Permitted Activity
    Section 401 certification is required for any Federal license or 
permit to conduct any activity that may result in any discharge into a 
``water of the United States.'' 33 U.S.C. 1341(a)(1). The Agency is 
proposing to retain the 2020 Rule's definition for a ``license or 
permit'' with minor modifications.
    The Agency is not proposing to provide an exclusive list of Federal 
licenses and permits that may be subject to section 401. The CWA itself 
does not list specific Federal licenses and permits that are subject to 
section 401 certification requirements. The most common examples of 
licenses or permits that may be subject to section 401 certification 
are CWA section 402 NPDES permits issued by EPA in jurisdictions where 
the EPA administers the NPDES permitting program; CWA section 404 
permits for the discharge of dredged or fill material and Rivers and 
Harbors Act sections 9 and 10 permits issued by the Army Corps of 
Engineers; and hydropower and interstate natural gas pipeline licenses 
issued by the Federal Energy Regulatory Commission (FERC).\25\
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    \25\ The Corps also requires section 401 certification for its 
civil works projects, even though there is no Federal license or 
permit associated with those projects. The Corps' current 
regulations require the Corps to seek section 401 certification for 
dredge and fill projects involving a discharge into waters of the 
United States, regardless of whether the Corps issues itself a 
permit for those activities. See 33 CFR 336.1(a)(1) (``The CWA 
requires the Corps to seek state water quality certification for 
discharges of dredged or fill material into waters of the U.S.''); 
33 CFR 335.2 (``[T]he Corps does not issue itself a CWA permit to 
authorize Corps discharges of dredged material or fill material into 
U.S. waters but does apply the 404(b)(1) guidelines and other 
substantive requirements of the CWA and other environmental 
laws.''). In these instances, EPA understands that the Corps will 
follow the certification process as described in this proposal.
---------------------------------------------------------------------------

    Section 401 certification is not required for licenses or permits 
issued by a state or tribe that has been authorized to administer a 
permit program. For example, states and tribes may be authorized to 
administer the section 402 NPDES permitting program \26\ or the section 
404 dredge and fill permitting program.\27\ Permits issued by states or 
tribes pursuant to their approved program are not subject to section 
401 of the CWA as the programs operate in lieu of the Federal program, 
under state or tribal authorities. The state or tribal permit is not a 
``Federal'' permit for purposes of section 401. The CWA is clear that 
the license or permit prompting the need for a section 401 
certification must be a Federal license or permit, that is, one issued 
by a Federal agency. This conclusion is supported by the legislative 
history of CWA section 401, which noted that ``since permits granted by 
States under section 402 are not Federal permits--but State permits--
the certification procedures are not applicable.'' H.R. Rep. No. 92-
911, at 127 (1972). Additionally, the legislative history of the CWA 
amendments of 1977, discussing state assumption of section 404, also 
noted that ``[t]he conferees wish to emphasize that such a State 
program is one which is established under State law and which functions 
in lieu of the Federal program. It is not a delegation of Federal 
authority.'' H.R. Rep. No. 95-830, at 104 (1977).
---------------------------------------------------------------------------

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

2. Potential for a Discharge To Occur
    The presence of, or potential for, a discharge is a key determinant 
for when a water quality certification is required. 33 U.S.C. 
1341(a)(1) (``A certification is required for ``a Federal license or 
permit to conduct any activity . . . which may

[[Page 35328]]

result in any discharge into the navigable waters. . .'') (emphasis 
added).
    The Agency is not proposing a specific process or procedure for 
project proponents, certifying authorities, and/or Federal agencies to 
follow in order to determine whether or not a federally licensed or 
permitted activity may result in a discharge and therefore require 
section 401 certification. After 50 years of implementing section 401, 
EPA's experience is that Federal agencies and certifying authorities 
are well-versed in the practice of determining which Federal licenses 
or permits may result in discharges. Ultimately, the project proponent 
is responsible for obtaining all necessary permits and authorizations, 
including a section 401 certification. If there is a potential for a 
project to discharge into a ``water of the United States,'' a Federal 
agency cannot issue the Federal license or permit unless a section 401 
certification is granted or waived by the certifying authority. EPA 
recommends that project proponents engage in early discussions with 
certifying authorities and Federal agencies to determine whether their 
federally licensed or permitted activity will require section 401 
certification.
    The Agency requests comment on whether it should propose a specific 
process or procedure for project proponents, certifying authorities, 
and/or Federal agencies to follow in order to determine whether or not 
a federally licensed or permitted activity may result in a discharge 
and therefore require section 401 certification.
3. Discharge
    Consistent with the Agency's longstanding position and the 2020 
Rule, EPA is proposing that a point source discharge, or potential for 
one, is required to trigger section 401. See proposed Sec.  121.2. 
Additionally, the Agency is clarifying that, consistent with S.D. 
Warren v. Maine Board of Environmental Protection, 547 U.S. 370 (2006), 
discussed below, a point source discharge triggering section 401 does 
not require the addition of pollutants.
    The CWA provides that ``[t]he term `discharge' when used without 
qualification includes a discharge of a pollutant, and a discharge of 
pollutants.'' 33 U.S.C. 1362(16). The CWA defines ``discharge of a 
pollutant'' to mean ``any addition of any pollutant to navigable waters 
from any point source.'' Id. at 1362(12). EPA and the Corps have long 
interpreted the definition of ``discharge'' broadly to include, but not 
be limited to, ``discharges of pollutants.''
    This interpretation is consistent with the text of the statute as 
interpreted by the U.S. Supreme Court. In S.D. Warren Co, a hydropower 
dam operator asserted that its dams did not result in discharges that 
would require section 401 certification because the dams only released 
water that ``adds nothing to the river that was not there above the 
dams.'' 547 U.S. 370, 374-75, 378 (2006). The Court stated that the 
term discharge is broader than ``discharge of a pollutant'' and 
``discharge of pollutants.'' Observing that the term ``discharge'' is 
not specifically defined in the statute, the Court applied the ordinary 
dictionary meaning, ``flowing or issuing out.'' Id. In applying this 
meaning to hydroelectric dams, the Court held that releasing water 
through a dam constituted a discharge for purposes of section 401 and, 
thus, the CWA provided states with the ability to address water quality 
impacts from these releases through the certification process. Id. at 
385-86. The Court explicitly rejected the argument that an ``addition'' 
was necessary for a ``discharge,'' stating ``[w]e disagree that an 
addition is fundamental to any discharge.'' Id. at 379 n.5.
    While the Supreme Court has held that the addition of a pollutant 
is not necessary for a discharge to prompt the need for a CWA section 
401 certification, the Ninth Circuit has held that such certification 
triggering discharges must be from point sources. Or. Natural Desert 
Ass'n v. Dombeck, 172 F.3d 1092, 1093-94 (9th Cir. 1998) 
(``Dombeck'').\28\ In Dombeck, the Ninth Circuit addressed the question 
whether ``the term `discharge' in [section 401] includes releases from 
nonpoint sources as well as releases from point sources.'' Id. At issue 
in that case was whether a cattle-grazing permit issued by the U.S. 
Forest Service required a section 401 certification.
---------------------------------------------------------------------------

    \28\ In Dombeck, the United States took the position that the 
term ``discharge'' at 33 U.S.C. 1362(14) did not include nonpoint 
sources because there was nothing in the definition or the 
legislative history of the term that suggested it extended to 
nonpoint source pollution. Brief of the United States in Or. Natural 
Desert Ass'n v. Dombeck, Nos. 97-3506, 97-35112, 97-35115, at 18-21 
(9th Cir. 1997). Additionally, the United States argued that section 
401's legislative history did not suggest that ``discharge'' 
included nonpoint sources. Id. at 23-24.
---------------------------------------------------------------------------

    The court observed that the word ``discharge'' is used consistently 
in the Act to refer to releases from point sources, whereas the term 
``runoff'' is used to describe pollution flowing from nonpoint sources, 
and Congress did not say ``runoff'' in section 401. Id. at 1097. The 
court also found that all of the CWA sections cross-referenced in 
section 401(a)(1) were related to the regulation of point sources. Id. 
Regarding the inclusion of section 303, the CWA section requiring 
states to adopt and EPA to approve water quality standards, the court 
said that section 303 did ``not itself regulate nonpoint source 
pollution'' and, therefore, ``did not sweep nonpoint sources into the 
scope of [section 401].'' Id.
    Following the Supreme Court's decision in S.D. Warren that the 
addition of a pollutant was not needed to trigger section 401, the 
Ninth Circuit reaffirmed its earlier decision that section 401 was only 
triggered by a point source discharge. Or. Natural Desert Ass'n v. 
USFS, 550 F.3d 778 (9th Cir. 2008). The Ninth Circuit found that 
``[t]he issue in S.D. Warren was narrowly tailored to determine whether 
a discharge from a point source could occur absent addition of any 
pollutant to the water emitted from the dam turbines.'' Id.at 783-84; 
see S.D. Warren, 547 U.S. at 376-87.\29\ The Ninth Circuit held that 
``[n]either the ruling nor the reasoning in S.D. Warren is inconsistent 
with this court's treatment of nonpoint sources in [section] 401 of the 
Act, as explained in Dombeck. Accordingly, the principles of stare 
decisis apply, and this court need not revisit the issue decided in 
Dombeck.'' USFS, 550 F.3d at 785. EPA has consistently implemented the 
Ninth Circuit's interpretation of section 401 as requiring the 
potential for a point source discharge (with or without the addition of 
pollutants) to trigger section 401. See 85 FR 42238; 2010 Handbook 
(rescinded) (discussing requirement of section 401 certification when 
there is a point source discharge).\30\
---------------------------------------------------------------------------

    \29\ The United States made a similar observation in its brief 
in USFS. See Brief of the United States in ONDA v. USFS, No. 08-
35205, at 22 (9th Cir. 2008).
    \30\ The United States has suggested that section 401 requires 
the discharge to be from a point source in briefs filed before both 
the Ninth Circuit and the Supreme Court. See, e.g., Briefs of the 
United States in ONDA v. Dombeck, Nos. 97-3506, 97-35112, 97-35115 
(9th Cir. 1997), ONDA v. USFS, No. 08-35205 (9th Cir. 2008), Amicus 
brief of the United States in S.D. Warren Co. v. Maine Bd. of Envtl. 
Prot., No. 04-1527 (January 9, 2006).
---------------------------------------------------------------------------

    Although the Agency is retaining the same interpretation of 
``discharge'' as the 2020 Rule, to simplify the regulatory 
architecture, the Agency is proposing to remove the definition of 
``discharge'' currently located at Sec.  121.1(f) and instead 
incorporate those definitional concepts into the regulatory text at 
proposed Sec.  121.2 which discusses when certification is required. 
The Agency believes this simpler approach will provide greater clarity 
about the nature

[[Page 35329]]

of discharges that trigger the need for section 401 certification or 
waiver.
    Just as the Agency is not proposing to define the term 
``discharge'' for purposes of section 401, the Agency is not proposing 
a distinct definition of the term ``point source.'' Rather, the Agency 
will continue to rely on the definition of point source in section 
502(14) of the CWA,\31\ as interpreted by the courts.\32\ For example, 
courts have concluded that bulldozers, mechanized land clearing 
machinery, and similar types of equipment used for discharging dredge 
or fill material are ``point sources'' for purposes of the CWA. See, 
e.g., Avoyelles Sportsmen's League v. Marsh, 715 F.2d 897 (5th Cir. 
1983); United States v. Larkins, 657 F. Supp. 76 (W.D. Ky. 1987), 
aff'd, 852 F.2d 189 (6th Cir. 1988). On the other hand, courts have 
concluded that a water withdrawal is not a point source discharge and 
therefore does not require a water quality certification.\33\
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    \31\ The CWA defines point source as ``any discernible, confined 
and discrete conveyance . . . from which pollutants are or may be 
discharged.'' 33 U.S.C. 1362(14) (emphasis added).
    \32\ In County of Maui, Hawaii v. Hawaii Wildlife Fund, et al., 
the Supreme Court addressed the question whether the CWA requires a 
NPDES permit under section 402 of the Act when pollutants originate 
from a point source but are conveyed to navigable waters by 
groundwater. 140 S. Ct. 1462 (2020). The Court held that ``the 
statute requires a permit when there is a direct discharge from a 
point source into navigable waters or when there is the functional 
equivalent of a direct discharge.'' Id. at 1476 (emphasis in 
original). The Court articulated a number of factors that may prove 
relevant for purposes of section 402 permitting. Id. at 1476-77. 
Consistent with the rationale of the Court's decision in County of 
Maui, any point source discharge that is the functional equivalent 
of a direct discharge into navigable waters would also trigger 
section 401. This broad interpretation is also consistent with S.D. 
Warren, 547 U.S. at 375.
    \33\ See, e.g., North Carolina v. FERC, 112 F.3d 1175, 1187 
(D.C. Cir. 1997) (holding that withdrawal of water from lake does 
not constitute discharge for CWA section 401 purposes).
---------------------------------------------------------------------------

4. ``Into the Navigable Waters''
    Section 401 says that certification is required for an activity 
that ``may result in any discharge into the navigable waters.'' 33 
U.S.C. 1341(a)(1). The term ``navigable waters'' is defined as ``waters 
of the United States, including the territorial seas.'' 33 U.S.C. 
1362(7).
    The proposed rule provides that section 401 certification is 
required for Federal licenses or permits where there is a potential 
discharge into a water of the United States. This interpretation is 
consistent with the plain language and legislative history of the CWA. 
See H.R. Rep. No. 91-911, at 124 (1972) (``It should be clearly noted 
that the certifications required by section 401 are for activities 
which may result in any discharge into navigable waters.''). This 
interpretation is also consistent with the Agency's longstanding 
position and practice. See, e.g., 2010 Handbook, at 3, 5 (rescinded) 
(``Since [section] 401 certification only applies where there may be a 
discharge into waters of the [United States], how states or tribes 
designate their own waters does not determine whether [section] 401 
certification is required.'').
    Potential discharges into state or tribal waters that are not 
``waters of the United States'' do not trigger the requirement to 
obtain section 401 certification. However, as discussed in section V.E. 
in this preamble, once the certification requirement is triggered by 
the prerequisite of a point source discharge into a water of the United 
States, the certifying authority may choose to grant, condition, or 
deny water quality certifications based on the potential impact of the 
``activity as a whole'' on waters of the United States and other state 
or tribal waters.

B. Pre-Filing Meeting Request

    EPA is proposing to retain the requirement for a project proponent 
to request a pre-filing meeting with the certifying authority at least 
30 days before submitting a water quality certification request. 
However, recognizing the variety of project types and complexities, the 
proposed rule also provides certifying authorities with the flexibility 
to waive or shorten this pre-filing meeting request requirement. This 
requirement to request a pre-filing meeting will ensure that certifying 
authorities have an opportunity, should they desire it, to receive 
early notification and to discuss the project with the project 
proponent before the statutory timeframe for review begins. The intent 
of this proposed provision is to support early engagement and 
coordination between certifying authorities and project proponents.
    The 2020 Rule introduced the pre-filing meeting request requirement 
to encourage early coordination between parties to identify needs and 
concerns before the start of the reasonable period of time. EPA 
interpreted the term ``request for certification'' in CWA section 
401(a)(1) as being broad enough to include an implied requirement that, 
as part of the submission of a request for certification, a project 
proponent shall also provide the certifying authority with advance 
notice that a certification request is imminent. The time (no longer 
than one year) that certifying authorities are provided under the CWA 
to act on a certification request (or else waive the certification 
requirements of section 401(a)) provided additional justification in 
this context to interpret the term ``request for certification'' to 
allow EPA to require a pre-filing meeting request.
    The 2020 Rule proposal originally limited the pre-filing meeting 
request requirement to project proponents seeking certification in 
jurisdictions where EPA acts as the certifying authority. However, in 
response to stakeholder feedback on the proposed 2020 Rule, the Agency 
extended the pre-filing meeting request requirement to all project 
proponents. As a result, the final 2020 Rule required all project 
proponents to request a pre-filing meeting at least 30 days prior to 
submitting a water quality certification request. 85 FR 42241 (July 13, 
2020). The 2020 Rule did not provide any mechanism for certifying 
authorities to waive or otherwise alter the 30-day period between a 
project proponent requesting a pre-filing meeting and subsequently 
submitting a certification request. Instead, there was a mandatory 30-
day period that had to pass before the project proponent could submit a 
certification request.
    During pre-proposal outreach on this proposed rule, some 
stakeholders found the pre-filing meeting request requirement to be 
essential to an efficient certification process. Some stakeholders 
shared that the pre-filing meetings were helpful in allowing certifying 
authorities to inform project proponents of the specific project 
information needed for an effective evaluation of the certification 
request. However, some stakeholders expressed concern about the 
mandatory 30-day ``waiting period'' between the pre-filing meeting 
request and the certification request, particularly in emergency permit 
situations. Stakeholders also noted that the 30-day mandatory period 
could create delays for Federal licensing or permitting agencies. Some 
stakeholders noted that most certification requests involve smaller, 
less complex projects and requiring the project proponent to request a 
pre-filing meeting and wait 30 days before submitting a request for 
certification was unnecessarily burdensome. Stakeholders suggested that 
EPA should add flexibility to the process and give certifying 
authorities the ability to waive the pre-filing meeting request (e.g., 
for smaller and less complex projects and emergencies).
    Pre-filing meeting requests ensure that certifying authorities can 
receive early notification of and discuss the project and potential 
information needs with the project proponent before the statutory 
``reasonable period of time'' for certification review begins (e.g., 
allow

[[Page 35330]]

the certifying authority to collect important details about a proposed 
project and its potential effects on water quality). Under this 
proposal, a project proponent is required to request a pre-filing 
meeting from the certifying authority in accordance with the certifying 
authority's applicable submission procedures at least 30 days prior to 
submitting a certification request, unless the certifying authority 
waives or shortens this requirement. Similar to the approach taken 
under the 2020 Rule, EPA is not proposing to define by regulation the 
process or manner for project proponents to submit pre-filing meeting 
requests. Rather, EPA intends the term ``applicable submission 
procedures'' to mean the submission procedures deemed appropriate by 
the certifying authority. EPA intends for certifying authorities to 
communicate to project proponents when a pre-filing meeting request is 
necessary and when a pre-filing meeting request is waived. For example, 
certifying authorities could either require or waive the pre-filing 
meeting request requirement for all projects or specific types of 
projects. EPA recommends that certifying authorities make this 
information readily available to project proponents in an easily 
accessible manner to allow for a transparent and efficient process 
(e.g., posting a list of project types that require a pre-filing 
meeting request on the certifying authority's website).
    When EPA acts as the certifying authority, EPA would generally find 
the following submission procedures to be appropriate. First, EPA 
recommends that project proponents submit a pre-filing meeting request 
to the Agency in writing. As discussed in section V.C in this preamble, 
the project proponent must submit documentation that a pre-filing 
meeting was requested as a component of its certification request when 
EPA is acting as the certifying authority (or where a state or tribe 
does not have certification request requirements), unless a pre-filing 
meeting request has been waived. In light of this requirement, EPA 
recommends that pre-filing meeting requests to the Agency be submitted 
in writing. Second, the Agency recommends that project proponents 
include the following information, as available, in any written request 
for a pre-filing meeting with EPA:
    1. A statement that it is ``a request for CWA section 401 
certification pre-filing meeting,''
    2. The name of the project proponent and appropriate point of 
contact,
    3. The name of the tribe or jurisdiction for which EPA is serving 
as the certifying authority,
    4. The planned project location (including identification of waters 
of the United States into which any potential discharges would occur),
    5. A list of any necessary licenses/permits (e.g., state permits, 
other Federal permits, etc.),
    6. The project type and a brief description of anticipated project 
construction and operation activities, and
    7. The anticipated start work date.
    EPA is requesting comment on whether it should define ``applicable 
submission procedures'' for itself in regulatory text, or only provide 
recommended procedures in the final rule preamble and future guidance. 
Additionally, the Agency is requesting comment on whether it should 
define ``applicable submission procedures'' in regulatory text for all 
certifying authorities, and if so, what those ``applicable submission 
procedures'' should include (e.g., the items listed above for pre-
filing meetings with EPA, and/or other items). The Agency also requests 
comment on the proposed minimum timeline between the submission of a 
pre-filing meeting request and certification request. If a requirement 
to submit a pre-filing meeting request remains in the final rule and 
``applicable submission procedures'' remains undefined, EPA intends to 
develop its own recommended procedures for pre-filing meeting requests 
and will make those procedures available to the public during the 
implementation of any final rule. These recommendations will reflect 
some of EPA's own procedures when the Agency is the certifying 
authority, which are described, in part, above.
    The Agency is also proposing to provide certifying authorities with 
the flexibility to waive or shorten the pre-filing meeting request 
requirement. As indicated in pre-proposal input, all projects do not 
necessarily require early engagement between the project proponent and 
certifying authority. For example, less complex, routine projects may 
not necessitate the same level of early engagement as a large, complex 
project. The Agency's view is that the proposed requirement to submit a 
pre-filing meeting request is responsive to stakeholder concerns and 
suggestions mentioned above about the need for early engagement between 
the project proponent and a certifying authority. Additionally, the 
Agency recognizes that states and tribes are in the best position to 
determine whether a particular project (or class of projects) would 
benefit from such early coordination. Accordingly, this proposed 
requirement includes a waiver provision that reflects both cooperative 
federalism principles and the reality that not every project will 
benefit from a pre-filing meeting. The Agency recommends that 
certifying authorities clearly communicate to project proponents their 
expectations for pre-filing meetings and requests for pre-filing 
meeting waivers (e.g., whether they may grant waivers, either 
categorically or on an individual basis, and any procedures and 
deadlines for submission of requests and the grant of waivers) so that 
project proponents may clearly and efficiently engage in the 
certification process. EPA is requesting comment on whether the project 
proponent should have the opportunity to participate in determining the 
need for a pre-filing meeting request. For example, should there be a 
process for the project proponent to ask the certifying authority to 
waive the pre-filing meeting request requirement?
    Like other certifying authorities, EPA would have the discretion to 
waive the pre-filing meeting request requirement. Generally, EPA 
expects that it will provide written acknowledgement that the pre-
filing meeting request has been received within 5 days of receipt. In 
its written response, the Agency will also state whether it has 
determined that the pre-filing meeting will be waived or when (if less 
than 30 days) the project proponent may submit the certification 
request. The 2020 Rule provides that the certifying authority is not 
obligated to grant or respond to a pre-filing meeting request. See 40 
CFR 121.4(b). The Agency is proposing to delete this provision as 
unnecessary because the proposed regulatory text at Sec.  121.4 does 
not compel any action by the certifying authority. Accordingly, the 
Agency does not find it necessary to expressly reiterate what the 
certifying authority is not obligated to do. If a certifying authority 
fails to communicate whether it wants to waive or shorten the pre-
filing meeting request requirement, then the project proponent must 
wait 30 days from requesting a pre-filing meeting to submit its request 
for certification. The Agency is requesting comment on whether it 
should exclude any particular project types from the pre-filing meeting 
request requirement and process. The Agency is also requesting comment 
on whether it should specify that all certifying authorities should 
respond with written acknowledgement and determination of the need for 
a pre-filing meeting and timeline within 5 days of receipt of the pre-
filing meeting request, whether it should define the pre-filing meeting 
waiver process in

[[Page 35331]]

regulation (either for EPA or all certifying authorities), or whether 
it should maintain certifying authority flexibility in setting the 
process.
    The Agency is not proposing to define the pre-filing meeting 
process, e.g., define meeting subject matter or meeting participants. 
In the 2020 Rule, the Agency ``encouraged'' but did not require the 
project proponent and the certifying authority to take certain steps 
with respect to the pre-filing meeting process. See 40 CFR 121.4(c)-
(d). The Agency is proposing to remove these recommendations from the 
regulatory text because (1) they were not expressed as, or intended to 
be, regulatory requirements and (2) the Agency believes that certifying 
authorities and project proponents are best suited to determine the 
optimal pre-filing meeting process on a project-by-project, project 
type, or general basis. EPA encourages project proponents and 
certifying authorities to use the pre-filing meeting to discuss the 
proposed project, as well as determine what information or data is 
needed (if any) as part of the certification request to enable the 
certifying authority to take final action on the certification request 
within the reasonable period of time. During the pre-filing meeting, 
project proponents could share a description of the proposed project 
location and timeline, as well as discuss potential impacts from the 
proposed project to waters of the United States and other water 
resources. Certifying authorities could use the meeting as an 
opportunity to provide information on how to submit certification 
requests (e.g., discuss procedural expectations for a certification 
request). Certifying authorities should also consider including the 
Federal agency in the pre-filing meeting process for early 
coordination. Additionally, the proposed provision provides flexibility 
for the certifying authority to determine if the pre-filing meeting 
request is fulfilled by any pre-application meetings or application 
submissions to the Federal licensing or permitting agency. Generally, 
EPA recommends that certifying authorities provide clear expectations 
for pre-filing meetings to ensure they are used efficiently and 
effectively. As mentioned previously, EPA intends to develop 
recommended procedures for pre-filing meeting requests to make 
available to the public during rule implementation.
    This proposed approach provides sufficient flexibility (consistent 
with the Act's cooperative federalism framework) to allow states and 
tribes to decide which projects (or project categories) require the 
type of early coordination reflected in a pre-filing meeting. EPA is 
requesting comment on the proposed approach and whether EPA should 
define the pre-filing meeting request process in more detail for other 
certifying authorities (e.g., defining the contents of the pre-filing 
meeting request). The Agency is also soliciting comment on an alternate 
approach where the Agency would not include a pre-filing meeting 
request requirement at all, which some stakeholders supported during 
pre-proposal outreach.

C. Request for Certification

    EPA is proposing that, once a project proponent has requested a 
pre-filing meeting (unless waived by the certifying authority), the 
project proponent may submit a certification request in accordance with 
the certifying authority's applicable submission procedures. Section 
401(a)(1) provides that the certifying authority's reasonable period of 
time to act starts after a certifying authority is in ``receipt'' of a 
``request for certification'' from a project proponent. 33 U.S.C. 
1341(a).\34\ The statute does not define either ``request for 
certification'' or ``receipt.''
---------------------------------------------------------------------------

    \34\ ``If the State, interstate agency, or Administrator, as the 
case may be, fails or refuses to act on a request for certification, 
within a reasonable period of time (which shall not exceed one year) 
after receipt of such request, the certification requirements of 
this subsection shall be waived with respect to such Federal 
application.'' (emphasis added).
---------------------------------------------------------------------------

    In the 2020 Rule, the Agency defined ``certification request'' for 
all certifying authorities and asserted that ambiguities in the 
statutory language had led to inefficiencies in the certification 
process. 40 CFR 121.5; see 85 FR 42243. In particular, the 2020 Rule 
preamble provided that states and authorized tribes could not rely on 
state or tribally defined ``complete applications'' to start the 
certification process, but rather must rely on a certification request 
as defined in EPA's regulation to initiate the process. The Agency 
relied on New York State Department of Environmental Conservation v. 
FERC, in which the Court of Appeals for the Second Circuit rejected New 
York's argument that the section 401 process ``begins only once [the 
state agency] deems an application `complete' '' and, instead, agreed 
with FERC that the section 401 review process begins when the state 
receives a request for certification. 884 F.3d 450, 455 (2d Cir. 2018) 
(``NYSDEC''). The court found that ``[t]he plain language of Section 
401 outlines a bright-line rule regarding the beginning of review'' and 
reasoned that ``[i]f the statute required `complete' applications, 
states could blur this bright-line rule into a subjective standard, 
dictating that applications are `complete' only when state agencies 
decide they have all the information they need.'' Id. at 455-56.
    In NYSDEC, the Second Circuit held that the plain language of 
section 401(a)(1) provides that the reasonable period of time begins 
after receipt of the request for certification, not when a certifying 
authority deems the request ``complete.'' The Second Circuit did not, 
however, decide the separate question of whether EPA or certifying 
authorities have the authority to establish--in advance of receiving a 
certification request--a list of required contents for such a request. 
Accordingly, the court's holding that the reasonable period of time 
begins after ``receipt'' does not preclude EPA from establishing such a 
list of minimum ``request for certification'' requirements, or from 
allowing certifying authorities to add requirements to EPA's list or 
develop their own lists of request requirements. Because the statute 
does not expressly define the term ``request for certification,'' EPA 
and other certifying authorities are free to do so in a manner that 
establishes--in advance of receiving the request--a discernable and 
predictable set of requirements for a certification request that starts 
the reasonable period of time. Establishing such a list of required 
elements in advance is consistent with the rationale of NYSDEC that 
criticized the state for relying on its ``subjective'' determination 
that the request was ``complete.''
    EPA is proposing minor revisions to the term ``receipt'' to clarify 
for all stakeholders that the reasonable period of time begins to run 
after a certifying authority receives a certification request as that 
request is defined either by EPA or the certifying authority in 
accordance with its applicable submission procedures. EPA is also 
proposing to remove the language in the regulatory text at Sec.  
121.5(a) that requires a project proponent to submit a certification 
request to a Federal agency. Section 401(a)(1) requires a project 
proponent to obtain certification or waiver from a certifying 
authority, not a Federal agency. The proposed definition of ``receipt'' 
relies upon the certifying authority, and not the Federal agency, to 
determine whether the certifying authority has received a request for 
certification from a project proponent, and as discussed below, the 
Agency is proposing that the certifying authority sends written 
confirmation of receipt of the request for certification to the project 
proponent and Federal agency. Therefore, it is unnecessary for a 
project

[[Page 35332]]

proponent to submit a request for certification to the Federal agency 
in addition to sending it to the certifying authority.
    New to this proposal and as discussed in the next section, EPA is 
proposing that every ``request for certification'' include a copy of 
the relevant draft Federal license or permit. EPA intends for this new 
requirement to ensure that states and tribes have the critical 
information they need to make a timely and informed certification 
decision. Accordingly, under this proposal a project proponent cannot 
submit a request for certification to a certifying authority until 
after a Federal agency has developed a draft license or permit. In an 
effort to be further responsive to state and tribal input and the 
cooperative federalism principles of the Act, unlike the 2020 Rule, EPA 
is proposing additional contents of a ``request for certification'' in 
only two circumstances: (1) When EPA acts as the certifying authority 
and (2) when a state or authorized tribe has not established its own 
definition of ``request for certification'' in regulation.
1. Minimum Contents of a Request for Certification
    Although the proposed rule would require project proponents to 
initiate engagement with a certifying authority through a pre-filing 
meeting request, the timing for a certifying authority to review and 
act on a request for certification for a federally licensed or 
permitted project starts only when the certifying authority receives a 
request for certification. EPA and stakeholders alike have recognized 
the importance of ensuring that adequate information is available to 
initiate and inform the certification review process, given the 
relatively limited period of time a certifying authority has to review 
a project under section 401 (i.e., a ``reasonable period of time'' not 
to exceed one year). However, EPA recognizes that stakeholders' views 
vary on whether it is possible to define exactly what information is 
sufficient or necessary to start the review process.
    In 1971, the Agency opted to not define what information, if any, 
was sufficient to start the review process for all certifying 
authorities and instead opted to define the information only for EPA 
when it acts as the certifying authority. 40 CFR 121.22 (2019). As a 
result, over the last approximately 50 years, many states and tribes 
established their own requirements for what constitutes a request for 
certification, also called a ``certification request,'' typically 
defining it as a so-called ``complete application.'' See, e.g., Cal. 
Code Regs. Tit. 23, sec. 3835; La. Admin. Code tit. 33, sec. IX-1507; 
Ohio Admin. Code 3745-32-03. Prior Agency guidance acknowledged this 
practice. See 1989 Guidance, at 31 (April 1989) (``Thus, after taking 
the federal agencies' regulations into account, the State's 401 
certification regulations should link the timing for review to what is 
considered receipt of a complete application.''); see also 2010 
Handbook (rescinded) (``States and tribes often establish their own 
specific requirements for a complete application for water quality 
certification. . . . The advantage of a clear description of components 
of a complete [section] 401 certification application is that 
applicants know what they must be prepared to provide, and applicant 
and agencies alike understand when the review timeframe has begun.'').
    As discussed above, the 2020 Rule defines the term ``certification 
request'' and the contents of a certification request for all 
certifying authorities and does not allow certifying authorities to 
modify or add to these requirements. See 40 CFR 121.1(c), 121.5. 
Generally, these requirements include basic project information such as 
identifying the project proponent and a point of contact, and 
identifying the location and nature of any potential discharge that may 
result from the proposed project and the location of receiving waters. 
See id. at Sec.  121.5.
    In pre-proposal outreach for this rule, many certifying authorities 
expressed concerns about the Agency's decision in the 2020 Rule to 
provide a complete list of elements that define a certification 
request. These certifying authorities noted that it is unreasonable to 
impose a ``one size fits all'' definition on certification requests in 
light of different state legal requirements (e.g., certification fee 
requirements, antidegradation laws) or to expect states and tribes to 
be able to act in a timely, informed manner without more specific 
information about the proposed project. Although the 2020 Rule did not 
prohibit certifying authorities from requesting additional information 
after receiving a request for certification, several certifying 
authorities argued that the rule's bifurcated approach (e.g., separate 
lists of Federal and state requirements) created workload issues for 
certifying authorities and caused confusion among project proponents. 
At least one certifying authority noted that the 2020 Rule requirements 
resulted in the state issuing more denials due to project proponents 
not submitting information necessary for project evaluation. 
Conversely, several project proponents have argued that a definitive 
list of contents of a request for certification is essential to provide 
clarity and consistency for project proponents and certifying 
authorities.
    In this rulemaking, EPA is proposing that a request for 
certification must in all cases be in writing, signed, dated, and 
include a copy of a draft license or permit (unless legally precluded 
from obtaining such a copy) and any existing and readily available data 
or information related to potential water quality impacts from the 
proposed project (e.g., Environmental Impact Statement (EIS), water 
quality data collected by the project proponent). Although this 
proposed approach defines limited requirements for all certification 
requests, the Agency is not providing an exclusive definition of 
request for certification, as it did in the 2020 Rule. Rather, the 
Agency is proposing to define requirements it views as necessary for an 
efficient and consistent certification process. The Agency is also 
proposing to remove the definition of ``certification request'' 
currently located at 40 CFR 121.1(c), which describes the components of 
a request for certification, and instead incorporate those same 
definitional elements directly into the proposed language at Sec.  
121.5(a). The Agency believes incorporating the definitional elements 
into the relevant regulatory section for request for certification will 
provide greater clarity about the contents of a request for 
certification.
    Because the proposed interpretation of a ``request for 
certification'' includes submission of the relevant draft Federal 
license or permit for the proposed project, a project proponent would 
not be able to submit a request for certification until a Federal 
agency develops and provides it with a draft license or permit for the 
proposed project. Section 401 does not specify when a request for 
certification must be submitted in relation to the related Federal 
licensing or permitting process, nor does the 1971 Rule or 2020 Rule 
specify when a project proponent must submit a request for 
certification. Because the text of section 401 does not define the 
contents of a ``request for certification'' or specify at what point in 
the Federal licensing or permitting process such a request must or may 
be submitted to the certifying authority, the statute is ambiguous on 
both points. As the agency charged with administering the CWA, EPA is 
entitled to deference for its reasonable interpretation of the statute 
that a draft license or permit must be included. See Ala. Rivers 
Alliance v. FERC, 325 F.3d 290, 296-97 (D.C. Cir. 2003); NYSDEC, 884 
F.3d at 453, n.33.

[[Page 35333]]

    As discussed below, EPA's proposed interpretation of the term 
``request for certification'' to include a draft license or permit and 
any existing and readily available data or information related to 
potential water quality impacts from the proposed project is reasonable 
because it ensures that the certifying authority has arguably the most 
important pieces of information--the water quality-related conditions 
and limitations the Federal agency has preliminarily decided to include 
in the draft license or permit and information informing that 
preliminary decision--to evaluate and determine whether it can certify 
(with or without additional conditions and limitations) that the 
project will comply with all applicable Federal and state water quality 
requirements. Without the ability to see and evaluate what conditions 
and limitations the Federal agency has preliminarily decided to include 
in its license or permit and the information informing that decision, 
the certifying authority might be inclined to deny certification as a 
protective measure against the unknown potential effects from the 
project or, in the alternative, it may include in its certification 
potentially unnecessary conditions as a hedge against what the Federal 
agency may decide to include. Because the certifying authority would 
have the benefit of seeing the Federal agency's preliminary conditions 
during its review of the draft license and permit, including its water 
quality-related limitations and requirements, and any existing and 
readily available data or information related to potential water 
quality impacts from the proposed project (such as an EIS), certifying 
authorities should be able to complete their certification review in 
less time and deliver certifications with fewer and more targeted and 
effective conditions. EPA also anticipates that this proposed 
requirement may reduce redundancies between the certification and 
Federal licensing or permitting processes. Providing certifying 
authorities with any existing and readily available data or information 
related to potential water quality impacts from the proposed project, 
such as studies or an EIS or Environmental Assessment (EA) or other 
water quality monitoring data, may reduce the need for duplicative 
studies and analyses. EPA intends for such ``existing and readily 
available data or information related to potential water quality 
impacts from the proposed project'' to include both data or information 
that informed the Federal agency's development of the draft license or 
permit as well as any other existing data or information the project 
proponent may have readily available.
    Under this proposal, if a project proponent is legally precluded 
from obtaining a copy of a draft license or permit, the project 
proponent would not be required to provide a copy. However, in this 
instance, a project proponent would still be required to obtain and 
produce any existing and readily available data or information related 
to potential water quality impacts from the proposed project, such as a 
copy of an EIS or EA.
    The Agency is aware that some Federal agencies allow project 
proponents to submit certification requests shortly after a license or 
permit application is received and before there is a draft license or 
permit. See, e.g., 18 CFR 5.23 (requiring a FERC hydropower license 
applicant to provide a copy of a water quality certification or request 
for certification ``no later than 60 days following the date of 
issuance of the notice of acceptance and ready for environmental 
analysis''); 33 CFR 325.2(b)(1) (requiring a Corps district engineer to 
notify the applicant if they determine that a water quality 
certification is necessary in processing an application); cf. 40 CFR 
124.53(a)-(c) (providing for a request for certification to occur 
either before or after EPA prepares a draft NPDES permit). The Agency 
is not aware of any regulatory-based reason why Federal licensing or 
permitting agencies could not manage their internal procedures so that 
a certifying authority's ``reasonable period of time'' did not begin to 
run until after it had received a copy of the draft license or permit. 
Moreover, as discussed above, it is reasonable to start the 
certification process only after a draft license or permit for the 
proposed project is available. To be clear, EPA is not proposing to 
require the project proponent to request certification immediately upon 
development or receipt of the draft license or permit. For example, the 
Corps is required to request certification on the nationwide permits 
(NWPs) when they are renewed every five years. First, the Corps 
proposes the draft NWPs and takes comment on the proposal, and later 
finalizes the NWPs after considering public comment. Under this 
proposed rule, the Corps may request certification on the NWPs after it 
receives and considers public comment on the proposal but before 
finalizing the NWPs. In that scenario, the Corps would provide the non-
finalized NWP to the certifying authority as the draft permit in its 
request for certification to satisfy the proposed requirements. EPA 
encourages project proponents to work with certifying authorities to 
determine when it is appropriate to submit a request for certification 
after development of the draft license or permit to allow for an 
informed and efficient certifying authority review. Furthermore, EPA is 
not proposing that the Federal agency must solicit public comment on 
its draft license or permit or create a new regulatory process to 
engage the public (e.g., notice and comment); rather, the Agency is 
proposing that the Federal agency provide a draft version of its 
license or permit for that specific proposed project prior to 
initiating the certification process, for the limited purpose of 
helping the certifying authority reach a proper decision on the request 
for certification. EPA is requesting comment on whether the Federal 
agency, as opposed to the project proponent, should provide a copy of 
the draft license or permit to the certifying authority when it is not 
otherwise already publicly available.
    The Agency is not proposing to require that the project proponent 
submit a final license or permit in its certification request because a 
final Federal license or permit may not be issued until after a 
certification or waiver is obtained by the project proponent. 33 U.S.C. 
1341(a)(1) (``No license or permit shall be granted until certification 
required by this section has been obtained or has been waived as 
provided in the preceding sentence.'') Therefore, requiring a copy of 
the final license or permit to initiate the certification process would 
be inconsistent with the plain language of section 401.
    The Agency is requesting comment on its proposed approach. The 
Agency is also requesting comment on an alternative approach, under 
which a project proponent may submit either a copy of its officially 
submitted license or permit application or a copy of the draft license 
or permit and any existing and readily available data or information 
related to potential water quality impacts from the proposed project.
2. Additional Contents in a Request for Certification
    As discussed above, the Agency is proposing that every request for 
certification include a copy of the draft license or permit and any 
existing and readily available data or information related to potential 
water quality impacts from the proposed project. The Agency is also 
proposing to identify a set of additional contents that a project 
proponent must include in a request for certification when EPA acts as 
the

[[Page 35334]]

certifying authority. The Agency is also proposing that the same set of 
additional contents would be required in each request for certification 
to a state or authorized tribe that has not established its own 
definition of a ``request for certification'' under state or tribal 
law. These additional contents would not apply where a state or 
authorized tribe has established its own list of requirements for a 
request for certification. As discussed above, this proposed approach 
contrasts with the approach taken in the 2020 Rule, which defines the 
contents of a certification request for all certifying authorities. 
However, it is a reasonable--and more flexible--approach to defining 
the term ``request'' and consistent with NYSDEC. That decision holds 
that the reasonable period of time begins after receipt of a request 
for certification and not when a state deems it ``complete;'' it does 
not preclude EPA or other certifying authorities from defining--in 
advance--those contents a certification request must contain. As 
discussed below, this approach is consistent with stakeholder input and 
the cooperative federalism principles central to section 401 and the 
CWA.
    The Agency agrees it is important for project proponents to have 
clarity and certainty during the certification process. In order to 
effectuate Congress' goals for section 401 in the limited amount of 
time provided by the Act, it is reasonable that certifying authorities 
should be able to define what information, in addition to a draft 
license or permit and any existing and readily available data or 
information related to potential water quality impacts from the 
proposed project, is necessary to make an informed decision regarding 
protecting their water quality from adverse effects from a federally 
licensed or permitted activity. See discussion in Section IV.A in this 
preamble on the legislative history of section 401. This approach will 
allow certifying authorities to act on certification requests in a 
timely and informed manner, while providing project proponents with 
clarity regarding expectations for the certification process. Pre-
proposal input on this rulemaking revealed that defining an exclusive 
list of components for certification requests for all certifying 
authorities would not necessarily result in a more efficient or timely 
process. As noted above, several stakeholders asserted that the 2020 
Rule led to workload challenges, general confusion for project 
proponents, and, in at least one state, an increase in denials. The 
Agency's proposed approach here will allow for a transparent and timely 
process that respects the role of state and tribal certifying 
authorities under the cooperative federalism framework of section 401.
    First, this proposed approach will reduce project proponent 
confusion. In all instances, the proposed rule defines the term 
``request for certification'' to include a copy of a draft license or 
permit and any existing and readily available data or information 
related to potential water quality impacts from the proposed project. 
It then defines additional contents that a certification request must 
include when EPA acts as a certifying authority or where a state or 
authorized tribe does not define a certification request in its 
regulations. Providing a defined list of additional contents for a 
certification request where EPA acts as a certifying authority, or 
where a state or tribe does not have a defined list in regulation, will 
provide project proponents with clear expectations for starting the 
process. Implicit in this requirement is an understanding that 
certifying authorities that wish to define their own additional 
requirements for a certification request have the authority to do so in 
regulation. Additionally, this proposed approach should be familiar to 
project proponents who would have followed specific requirements 
established by states and tribes during the last approximately 50 
years. The proposed approach also addresses project proponent concerns 
about certifying authorities that, in the past, may have unexpectedly 
required additional information from the project proponent to satisfy 
the request for certification requirement before starting the clock on 
the ``reasonable period of time.'' Under the approach EPA proposes 
here, the reasonable period of time starts after receipt of a ``request 
for certification,'' which is defined to mean a request that contains 
the contents required by EPA's proposed regulations and any additional 
state or tribal requirements.
    Second, this approach will allow certifying authorities to act on 
certification requests in a more efficient manner. The Agency generally 
agrees with stakeholders that the Agency cannot tailor the requirements 
of a certification request to fit every project or state or tribal law. 
This proposed approach recognizes the importance of ensuring that 
states and tribes are empowered to determine what information is 
necessary to initiate the certification process. Although this proposed 
rule does not preclude certifying authorities from asking for more 
information once they receive a certification request and the 
reasonable period of time begins, allowing states and authorized tribes 
to define additional contents of a certification request may reduce the 
need for such additional requests.
    Although the Agency is proposing to allow states and authorized 
tribes to define their own additional requirements for a certification 
request, the proposed approach provides a clear backstop for those 
states or authorized tribes who do not choose to define any additional 
requirements in regulation. The Agency expects that those states and 
authorized tribes who choose to define additional contents for a 
certification request would do so clearly enough to provide project 
proponents with full transparency as to what is required. As discussed 
above, some certifying authorities rely on a ``complete application'' 
to start the certification review process. In the Agency's view, a 
state requirement for submittal of a complete application, when the 
contents of such complete application are clearly defined in 
regulation, will not necessarily lead to a ``subjective standard.'' 
NYSDEC, 884 F.3d at 455-56. In fact, the Agency observes that the use 
of a ``completeness'' standard for applications or similar documents is 
not a novel concept in CWA implementing regulations.\35\ Both EPA and 
the Corps have developed regulations setting out requirements for 
``completeness'' or ``complete applications'' to initiate the 
permitting process. See 40 CFR 122.21(e) (describing ``completeness'' 
for NPDES applications); 33 CFR 325.1(d)(10) (describing when an 
application is deemed ``complete'' for section 404 permits). Neither 
CWA section 402 or section 404 uses the word ``complete'' to modify the 
term ``application'' in the statute, yet the agencies have reasonably 
interpreted the term ``application'' in those contexts to allow for a 
``completeness'' concept that provides a clear and consistent framework 
for stakeholders involved in the section 402 and 404 permitting 
processes. The Agency is unaware of significant issues with the use of 
``complete applications'' in either the section 402 or section 404 
permitting processes or a concern that it has led to a ``subjective 
standard.''
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    \35\ The use of ``complete'' applications is also applied in 
other Federal environmental realms (e.g., the Safe Drinking Water 
Act, the Clean Air Act). See, e.g., 40 CFR 144.31, 40 CFR 51.103, 
appendix V to part 51.
---------------------------------------------------------------------------

    The Agency is requesting comment on this proposed approach, 
including any examples or data about state or tribal certification 
request practices, including

[[Page 35335]]

a requirement for a ``complete request,'' that may have delayed the 
certification process. The Agency also requests comment on examples or 
circumstances where a certifying authority has applied a subjective or 
open-ended definition of ``complete application'' to certification 
requests, including examples of such in certifying authority 
regulations. EPA is also seeking comment on whether it should take an 
alternate approach whereby the Agency would define the minimum 
additional components of a certification request for all certifying 
authorities and if so, what those minimum additional components should 
include (e.g., the minimum additional components proposed to apply to 
EPA when it acts as a certifying authority, as discussed below).
    The Agency is proposing to require that a certification request 
made to EPA, or to states or tribes without their own definitions of 
``request for certification'' as discussed above, include five 
additional components. As discussed below, these five components 
contain some similarities to the 1971 Rule, with revisions to provide 
further clarification and efficiency for project proponents and EPA 
when it acts as a certifying authority and when a state or authorized 
tribe has not established its own definition of ``request for 
certification.''
    As stated above, the statute does not define the contents of a 
``request for certification'' to EPA, nor does the legislative history 
discuss these components. The 1971 Rule required project proponents to 
submit a signed certification request with ``a complete description of 
the discharge involved in the activity'' to EPA when it acts as the 
certifying authority. 40 CFR 121.22 (2019). Specifically, the 1971 
regulation required project proponents to include five mandatory 
components to provide a ``complete description of the discharge.'' Id.
    The 2020 Rule precludes state or tribal definitions of what must be 
included in a ``certification request.'' Instead, it provides a general 
definition of ``certification request'' applicable to all certifying 
authorities and two different lists of documents and information that 
must be included in all certification requests: one list for individual 
licenses and permits and a separate list for the issuance of a general 
license or permit. 40 CFR 121.5; see also 85 FR 42285. The preamble 
asserted that these were objective components that would not ``require 
subjective determinations about whether the request submittal 
requirements have been satisfied.'' 85 FR 42246. The nine components 
for a certification request on an individual license or permit are 
similar to the 1971 Rule, with additional components that required 
project proponents to include documentation of a pre-filing meeting 
request, a list of other project authorizations, and attestations 
regarding the contents of the request and that a request was being 
submitted. Id. at 42285.
    Prior to the 2020 Rule, some states and authorized tribes 
established their own requirements for a certification request that 
included more information than the 2020 Rule. In pre-proposal outreach 
for this rulemaking, several certifying authorities noted that the 2020 
Rule's list of components for a certification request failed to account 
for information that may be required to comply with state public notice 
requirements \36\ and state antidegradation policies. As a result, 
these certifying authorities asserted that the list limited their 
ability to engage in robust, meaningful public engagement on 
certification requests or ensure that a project would comply with EPA-
approved water quality standards.
---------------------------------------------------------------------------

    \36\ CWA section 401(a)(1) states that a ``State or interstate 
agency shall establish procedures for public notice in the case of 
all applications for certification by it.''
---------------------------------------------------------------------------

    As noted above, although the Agency is proposing that all requests 
for certification must include a copy of the draft license or permit 
and any existing and readily available data or information related to 
potential water quality impacts from the proposed project, the Agency 
is declining to define the additional contents of a certification 
request for those states or authorized tribes who have regulations that 
identify the contents of a certification request because it is 
difficult to tailor the contents at a national level to fit all state 
and tribal laws and regulations. However, EPA is proposing to define 
additional contents of a certification request for EPA when it acts as 
a certifying authority and for states or authorized tribes who do not 
have regulations on the components of a certification request. EPA is 
proposing that a certification request to EPA when it acts as the 
certifying authority, or to a state or tribe who does not have 
regulations on the components of a certification request, must also 
contain the following five components, if not already included in the 
draft license or permit:
    1. The name and address of the project proponent;
    2. The project proponent's contact information;
    3. Identification of the applicable Federal license or permit, 
including Federal license or permit type, project name, project 
identification number, and a point of contact for the Federal agency;
    4. Where available, a list of all other Federal, interstate, 
tribal, state, territorial, or local agency authorizations required for 
the proposed activity and current status of each authorization; and
    5. Documentation that a pre-filing meeting request was submitted to 
the certifying authority in accordance with applicable submission 
requirements, unless a pre-filing meeting request has been waived.
    Like the 1971 Rule and 2020 Rule, the Agency proposes to require 
basic background information about the project proponent, including 
name, address, and contact information. Consistent with the definition 
for ``project proponent'' proposed at Sec.  121.1(j), this information 
may include the name, address, and contact information for a project 
proponent's agent or contractor, where relevant, in addition to the 
primary project proponent. This additional contact information is 
important for the Agency to ensure that the appropriate representatives 
are aware of the certification requirements and can be contacted 
throughout the certification process. The proposed rule also requires 
project proponents to identify the Federal license or permit for which 
they are seeking certification, including information that identifies 
the license or permit type, name, and number, as well as a point of 
contact at the respective Federal licensing or permitting agency. 
Similar to the 2020 Rule, the Agency also proposes to require that the 
project proponent provide a list of other authorizations that are 
required for the proposed activity and the current status of such 
authorizations, where applicable. This requirement will allow the 
Agency to assess how water quality impacts may be addressed through 
other Federal, state, or local authorizations and potentially reduce 
redundancies or inconsistencies between the certified license or permit 
and other authorizations. When the project proponent is a Federal 
agency seeking certification, the Agency does not expect the Federal 
agency to be able to produce such a list. Typically, when a Federal 
agency seeks certification, it is seeking certification on general 
licenses or permits that would be used by future project applicants. 
Therefore, at the time of the request for certification, the Federal 
agency is likely unable to provide any information on which 
authorizations, if any, are required for such a future project. Similar 
to the 2020 Rule, the Agency also proposes to

[[Page 35336]]

require a project proponent to submit documentation that the proponent 
requested a pre-filing meeting, unless a pre-filing meeting request has 
been waived. The documentation should be in writing, such as a copy of 
the email requesting the pre-filing meeting. As discussed in section 
V.B in this preamble, a certifying authority may waive the requirement 
for a pre-filing meeting request. In that event, the project proponent 
would not need to produce documentation of a pre-filing meeting 
request.
    The Agency is not proposing to retain the contents of the 2020 Rule 
at Sec.  121.5(b)(4) and (5) and (8) and (9); the 1971 Rule also 
contained similar contents to Sec.  121.5(b)(4) and (5). See 40 CFR 
121.22(b)-(c), (e) (2019). Section 121.5(b)(4) and (5) are unnecessary 
since the proposed rule requires a project proponent to provide a copy 
of the draft license or permit and any existing and readily available 
data or information related to potential water quality impacts from the 
proposed project in its request. The Agency also finds it unnecessary 
to retain the requirements at Sec.  121.5(b)(8) and (9). EPA included 
the component at Sec.  121.5(b)(8) ``to create additional 
accountability on the part of the project proponent to ensure that 
information submitted in a certification request accurately reflects 
the proposed project.'' 85 FR 42245 (July 13, 2020). EPA is unaware of 
any issues or concerns that project proponents will not provide 
accurate information in the request for certification without such 
attestation. Furthermore, the proposed contents for a request for 
certification include a copy of the draft license or permit, which 
presumably incorporates accurate information about the proposed 
project. Additionally, it is unnecessary for a project proponent to 
provide specific language explicitly requesting certification because a 
project proponent is required to submit a request for certification as 
defined in this proposal. Submitting a request for certification as 
defined in this proposal should be a clear indication to the certifying 
authority that the project proponent is seeking certification. Although 
the Agency is defining the additional components of a certification 
request when it acts as a certifying authority, this does not preclude 
EPA from asking for additional information after a certification 
request is submitted, if the Agency determines additional information 
is necessary to inform its decision-making on a request for 
certification.
    The Agency is proposing to require a copy of the draft license or 
permit and any existing and readily available data or information 
related to potential water quality impacts from the proposed project in 
all requests for certification of both individual and general licenses 
and permits. Additionally, the Agency is proposing to require that any 
additional requirements for a request for certification apply to both 
requests for individual and general licenses or permits. Unlike the 
2020 Rule, the Agency is not proposing to retain a separate list of 
additional requirements for general licenses and permits. See 40 CFR 
121.5(c). In the 2020 Rule, EPA introduced a separate list of contents 
for a request for certification on the issuance of a general license or 
permit ``to account for the distinctions between issuing a general 
license or permit and issuing a license or permit for a specific 
project, with respect to the available information at the time of 
certification.'' 85 FR 42281 (July 13, 2020). However, EPA does not 
think there are any information needs beyond the proposed additional 
requirements unique or specific to a general license or permit. EPA is 
requesting comment on whether there are such different needs and 
whether it should create a separate list of additional requirements for 
general licenses or permits.
    EPA is requesting comments on its proposed list of additional 
components for a certification request when EPA acts as the certifying 
authority, or where a state or tribe does not define such additional 
requirements in regulation. Additionally, the Agency is requesting 
comment on the components as they would apply to state and authorized 
tribal certification requests, including where available, citations to 
existing regulations or any data on the time it takes project 
proponents to comply with these requirements.
    The Agency also requests comment on an alternative approach where 
the project proponent would be required to submit (1) a Federal license 
or permit application instead of a copy of the draft license or permit, 
(2) any existing and readily available data or information related to 
potential water quality impacts from the proposed project, and (3) an 
additional set of components. Under this alternative approach, the 
project proponent would be required to submit ``proposed activity 
information'' with six components, including the following:
    1. A description of the proposed activity, including the purpose of 
the proposed activity and the type(s) of discharge(s) that may result 
from the proposed activity;
    2. The specific location of any discharge(s) that may result from 
the proposed activity;
    3. A map and/or diagram of the proposed activity site, including 
the proposed activity boundaries in relation to local streets, roads, 
highways;
    4. A description of current activity site conditions, including but 
not limited to relevant site data, photographs that represent current 
site conditions, or other relevant documentation;
    5. The date(s) on which the proposed activity is planned to begin 
and end and, if known, the approximate date(s) on which any 
discharge(s) will take place; and
    6. Any additional information to inform whether any discharge from 
the proposed activity will comply with applicable water quality 
requirements.
    This alternative additional information would incorporate some of 
the information requirements from the 1971 Rule and 2020 Rule and add 
other items to reflect the additional information that the Agency views 
necessary to initiate its analysis of a certification request on a 
Federal license or permit application.
    EPA is also proposing to make conforming changes to the part 124 
regulations governing the contents of a request for certification of 
EPA-issued NPDES permits. EPA is proposing to delete 40 CFR 124.53(b), 
which provides that when EPA receives a permit application without 
certification, EPA shall forward the application to the certifying 
authority with a request that certification be granted or denied. EPA 
is proposing to delete Sec.  124.53(b) because this provision allows a 
request for certification to precede development of a draft NPDES 
permit, which is inconsistent with the approach proposed at Sec.  
121.5(a). It is worth noting that although Sec.  124.53 currently 
allows for a request for certification on a permit application, EPA 
typically requests certification on draft NPDES permits.
    EPA is also proposing to delete 40 CFR 124.53(c), which identifies 
the required contents of a request for certification of an EPA-issued 
NPDES permit (if certification has not been received by the time the 
draft permit is prepared). EPA is proposing to delete Sec.  124.53(c) 
because EPA intends that all requests for certification--including all 
requests for certification on EPA-issued NPDES permits--follow the 
regulations proposed at Sec.  121.5. The list of contents at Sec.  
124.53(c) differs significantly from the list of contents proposed at 
Sec.  121.5(c). Further, unlike proposed Sec.  121.5(b), Sec.  
124.53(c) is unclear regarding whether requests for

[[Page 35337]]

certification on EPA-issued NPDES permits must follow state regulations 
regarding the contents of a request for certification. Also, as 
explained at the end of Section V.D.2 of this preamble, the statement 
required at Sec.  124.53(c)(3) regarding the reasonable period of time 
is not consistent with the approach to the reasonable period of time 
proposed at Sec.  121.6.
3. Defining ``Receipt'' of a Request for Certification
    EPA is also proposing to define the term ``receipt'' to clarify 
that the reasonable period of time begins on the date that a certifying 
authority receives a certification request as defined by this proposal, 
with any additional components identified by the certifying authority 
in its regulations, and in accordance with its applicable submission 
procedures. The statute does not define the term ``receipt of such 
request'' nor does it define how a certification request must be 
received by a certifying authority. The 1971 Rule does not address or 
define the term ``receipt'', however, the Agency opted to define the 
term in the 2020 Rule. 40 CFR 121.1(m). The 2020 Rule defined the term 
``receipt'' as ``the date that a certification request is documented as 
received by a certifying authority in accordance with applicable 
submission procedures.'' Id. In implementation of the 2020 Rule, there 
was some confusion regarding whether it was the Federal agency's or 
certifying authority's responsibility to determine that a certification 
request, as defined by the 2020 Rule, was received. The proposed 
definition in this proposal clarifies that receipt occurs when the 
certifying authority receives a certification request that meets its 
definition for a certification request and complies with applicable 
submission procedures.
    First, the proposed definition of ``receipt'' acknowledges that a 
request for certification may largely be defined by the certifying 
authority. As discussed above, the Agency is proposing to require a 
copy of the draft license or permit and any existing and readily 
available data or information related to potential water quality 
impacts from the proposed project in all requests for certification, 
but only require additional components in a request for certification 
when EPA acts as the certifying authority, or where a state or 
authorized tribe does not define a certification request in its own 
regulations. Beyond these proposed Federal regulatory requirements, 
states and authorized tribes remain free to identify their own 
additional contents of a request for certification under state or 
tribal law.
    Second, the proposed definition of ``receipt'' requires a 
certification request to be submitted in accordance with the certifying 
authority's applicable submission procedures. Applicable submission 
procedures describe the manner in which a certifying authority will 
accept a certification request, e.g., through certified mail or 
electronically. The Agency understands that certifying authorities may 
have different procedures for receiving certification requests (e.g., 
receiving certification in different formats or requiring the payment 
of fees), and as such, is not defining a set of standard applicable 
submission procedures. However, EPA encourages certifying authorities 
to make their applicable submission procedures publicly available and, 
where possible, to discuss these procedures at pre-filing meetings. EPA 
is requesting comment on whether it should define applicable submission 
procedures.
    The statute further provides that the reasonable period of time 
begins ``after receipt of such request.'' 33 U.S.C. 1341(a)(1). The 
Agency interprets this to mean that the reasonable period of time 
begins on the date that the certifying authority receives a 
certification request that meets the proposed rule's requirements for a 
certification request, includes any additional certification request 
components identified in the certifying authority's regulation, and is 
delivered in accordance with the certifying authority's applicable 
submission procedures. See proposed Sec.  121.6(a). The Agency's 
proposed rulemaking allows the certifying authority the opportunity to 
confirm that it received a request for certification consistent with 
this proposal, its additional requirements, and in accordance with its 
applicable submission procedures. The Agency is proposing to require 
the certifying authority to confirm in writing for the project 
proponent and Federal agency the date it received a certification 
request that meets its definition and is submitted in accordance with 
its applicable submission procedures. Because the certifying authority 
must confirm receipt of the request for certification after it receives 
a request from a project proponent, EPA is proposing to remove the 
regulatory text at Sec.  121.5(a), which requires a project proponent 
to submit a certification request to a certifying authority and Federal 
agency. Similarly, the Agency is also proposing to remove the 
regulatory text located at Sec.  121.6(b), which requires the Federal 
agency to communicate the date of receipt of the request for 
certification, the reasonable period of time, and the date waiver will 
occur. The certifying authority is responsible for confirming the date 
of receipt of a request for certification with the project proponent 
and Federal agency. As discussed in the next section of this preamble, 
the Federal agency and the certifying authority may collaboratively set 
the reasonable period of time. As such, it is unnecessary for the 
Federal agency to communicate the length of the reasonable period of 
time and date of waiver to the certifying authority. The Agency is 
requesting comment on whether there should be a specified timeframe for 
when the certifying authority should send written confirmation to the 
project proponent and Federal agency of the date of receipt of the 
request for certification. The Agency is requesting comment on its 
proposed definition for receipt and the start of the reasonable period 
of time.

C. Reasonable Period of Time

1. Reasonable Period of Time Determination
    Under section 401, when a certifying authority receives a request 
for certification, the certifying authority must act on that request 
within a ``reasonable period of time (which shall not exceed one 
year).'' 33 U.S.C. 1341(a)(1). The proposed rule provides Federal 
agencies and certifying authorities with the ability to jointly set the 
reasonable period of time, provided the reasonable period of time does 
not exceed one year from the receipt of the request for certification. 
Additionally, after the reasonable period of time is set, the Federal 
agency and certifying authority may agree to extend the reasonable 
period of time, provided that it does not exceed one year from receipt.
    Section 401(a)(1) provides that a certifying authority waives its 
ability to certify a Federal license or permit if it does not act on a 
certification request within the reasonable period of time. 33 U.S.C. 
1341(a)(1) (``If the State, interstate agency, or Administrator, as the 
case may be, fails or refuses to act on a request for certification, 
within a reasonable period of time (which shall not exceed one year) 
after receipt of such request, the certification requirements of this 
subsection shall be waived with respect to such Federal 
application.''). Other than specifying its outer bound (one year), the 
CWA does not define what length of time is ``reasonable.'' The 1971 
Rule reiterated that a certifying authority would waive its opportunity 
to certify if it did not act within ``a reasonable period of time''

[[Page 35338]]

and provided that: (1) the Federal licensing or permitting agency 
determines the length of the reasonable period of time, and (2) the 
reasonable period of time ``shall generally be considered to be six 
months, but in any event shall not exceed one year.'' See 40 CFR 
121.16(b) (2019).
    The 2020 Rule provides that the Federal agency sets the reasonable 
period of time and defined a process for how it should be determined. 
See 40 CFR 121.6. This process specifies when a Federal agency must 
communicate the reasonable period of time to the certifying authority 
and identifies factors that the Federal agency must consider when 
setting the reasonable period of time. See id.; 85 FR 42259-60 (July 
13, 2020). The 2020 Rule does not maintain the 1971 Rule's six-month 
default and reiterates that the reasonable period of time could not 
exceed one year from receipt of the certification request. 40 CFR 
121.6. The 2020 Rule also defines the term ``reasonable period of 
time'' as the length of time, which is determined in accordance with 
Sec.  121.6, during which the certifying authority may act on a request 
for certification. 40 CFR 121.1(l).
    Some Federal agencies have promulgated regulations describing a 
reasonable period of time for section 401 certification in relation to 
those agencies' licenses or permits. For example, FERC has explicitly 
defined the ``reasonable period'' for certifying authority action under 
section 401 to be one year. See 18 CFR 4.34(b)(5)(iii), 5.23(b)(2), 
157.22(b). The Corps has routinely implemented a 60-day reasonable 
period of time for section 401 decisions commencing when the certifying 
authority receives a section 401 certification request. See 33 CFR 
325.2(b)(1)(ii).\37\ EPA has established a 60-day reasonable period of 
time for certifying authorities to act on requests for certifications 
for draft NPDES permits. See 40 CFR 124.53(c)(3).
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    \37\ But see U.S. EPA and Department of the Army, Clean Water 
Act Section 401 Certification Implementation Memorandum (August 19, 
2021) (interim joint guidance from EPA and Army Corps extending the 
reasonable period of time to the full statutory year for certain 
nationwide permits).
---------------------------------------------------------------------------

    While project proponents generally supported the reasonable period 
of time provisions in the 2020 Rule, most states, tribes, and non-
governmental organizations expressed concern with various aspects of 
its provisions. Many states and tribes expressed concern that the 
Federal agency is afforded the sole authority to set the reasonable 
period of time, and some recommended that the certifying authority 
alone should be able to determine the reasonable period of time. Some 
stakeholders suggested that a rule replacing the 2020 Rule should at 
least require the Federal agency and certifying authority to 
collaborate and agree on the reasonable period of time. Some certifying 
authorities also pointed out that short reasonable periods of time 
(e.g., 60 days) do not allow the state or tribe sufficient time to 
fulfill certain state or tribal law requirements, such as public notice 
requirements, or allow them to obtain all the information they need 
about a project to make an informed certification decision. As a 
result, these certifying authorities asserted that for complex 
projects, their only realistic options are to waive or deny 
certification. EPA expressed similar concerns in its notice of intent 
to revise the 2020 Rule. See 86 FR 29543 (June 2, 2021) (``Among other 
issues, EPA is concerned that the rule does not allow state and tribal 
authorities a sufficient role in setting the timeline for reviewing 
certification requests. . . .'').
    This proposed rulemaking not only affirms and clarifies that--
consistent with the statutory text--the reasonable period of time may 
not exceed one year from receipt of the certification request, but it 
also proposes that the Federal agency and certifying authority 
collaboratively set the reasonable period of time on a project-by-
project or project type basis (e.g., through development of procedures 
and agreements), provided that it does not exceed one year. Under this 
proposal, if the Federal agency and certifying authority do not agree 
upon a reasonable period of time, the default reasonable period of time 
would be 60 days from the receipt of the request for certification. The 
proposed rulemaking also allows for extensions of the reasonable period 
of time under certain circumstances. Additionally, the Agency is 
proposing to remove as unnecessary the definition for ``reasonable 
period of time,'' currently located at Sec.  121.1(l). Like that 
definition, the proposed language in Sec.  121.6(b) itself provides 
that the reasonable period of time is the time during which the 
certifying authority must act on a request for certification. As a 
result, the Agency finds it duplicative and unnecessary to include a 
separate definition for the term ``reasonable period of time.''
    EPA understands that, in most cases, acting within the reasonable 
period of time is not a major issue for most certifying authorities. 
Several stakeholders noted in pre-proposal input that the majority of 
section 401 certifications are issued in well under a year. See 
Economic Analysis for the Proposed Rule (based on pre-proposal input 
and website information, most states issue certification decisions in 
60-90 days); see also 85 FR 42215 (July 13, 2020) (``EPA acknowledges 
that [] many certifications reflect an appropriately limited 
interpretation of the purpose and scope of section 401 and are issued 
without controversy . . . .'').
    However, a too short or inflexible reasonable period of time can 
present a major issue in certain circumstances, e.g., for complex, 
multi-jurisdictional projects, and in jurisdictions with longer public 
notice requirements. In pre-proposal input, several certifying 
authorities said they needed more (rather than less) time to make 
certification decisions due to a lack of necessary information from 
project proponents. See also Economic Analysis for the Proposed Rule 
(noting that some pre-proposal input revealed that project size, 
project complexity, sufficiency of project proponent information, and 
public notice processes impacted whether additional time was 
necessary). Several stakeholders recommended that EPA establish a 
default reasonable period of time of one full year.
    The collaborative approach EPA is proposing (i.e., the Federal 
agency and certifying authority jointly set the reasonable period of 
time with a default of 60 days if an agreement is not reached) differs 
from the approach in both the 1971 Rule and the 2020 Rule where the 
reasonable period of time is determined by the Federal agency. See 40 
CFR 121.16(b) (2019) and 40 CFR 121.6(a). Such an approach is not 
compelled by the statutory text because CWA section 401(a)(1) is silent 
regarding who, if anyone, determines the reasonable period of time. Nor 
does it say that the Federal agency is the only entity that may 
establish the reasonable period of time. Given that statutory 
ambiguity, EPA has flexibility under Chevron to establish regulatory 
provisions regarding the establishment of a reasonable period of time. 
Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 
(1984).
    EPA is proposing to provide Federal agencies and certifying 
authorities with an opportunity to collaboratively set the reasonable 
period of time, in lieu of relying on a regulatory default of 60 days. 
Under this approach, Federal agencies and certifying authorities can 
offer each other their expertise relevant to determining what period of 
time is reasonable. Federal agencies are in the best position to opine 
on timing in relation to their Federal licensing or permitting process. 
Likewise, because certifying authorities regularly issue their own 
permits for activities that may impact water quality (e.g., NPDES

[[Page 35339]]

permits, above and below ground pipelines, etc.) they also have 
expertise in the time needed to evaluate potential water quality 
impacts from federally licensed or permitted activities. Certifying 
authorities are also best positioned to opine on the impacts of state 
or tribal law governing the timing of decisions with respect to 
environmental review and public participation requirements.\38\ Given 
that EPA is proposing to defer to the combined expertise of the Federal 
agencies and certifying authorities for establishing the reasonable 
period of time, this proposal does not retain the list of factors that 
a Federal agency shall consider, under the 2020 Rule at Sec.  121.6(c), 
when establishing the reasonable period of time. Above all, this 
proposed approach addresses state and tribal stakeholders' concerns 
that, under the 2020 Rule, certifying authorities do not have enough 
influence in determining the length of the reasonable period of time 
for a particular project.
---------------------------------------------------------------------------

    \38\ Section 401(a)(1) requires a State or interstate agency to 
establish procedures for public notice in the case of all 
applications for certification by it and, to the extent it deems 
appropriate, procedures for public hearings in connection with 
specific applications. However, section 401(a)(1) itself does not 
set any requirements or time limits on those public notice 
procedures or how those procedures should be considered when setting 
the reasonable period of time. EPA is aware that some certifying 
authorities have public notice procedures that exceed the default 
reasonable period of time in place for some Federal agencies (e.g., 
longer than the Corps or EPA's default 60-day reasonable period of 
time for federally issued CWA section 404 and 402 permits).
---------------------------------------------------------------------------

    Under the proposed approach, during the first 30 days after a 
certifying authority receives a request for certification, the Federal 
agency and certifying authority would attempt to agree in writing to 
the length of a reasonable period of time. EPA recommends that the 
Federal agency and the certifying authority discuss the length of a 
reasonable period of time at the pre-filing meeting, particularly 
because the project proponent participates in that meeting and will, 
therefore, be informed of any reasonable period of time related 
discussions and decisions. Although the Agency is not proposing to list 
factors that Federal agencies and certifying authorities must consider 
when establishing the reasonable period of time, EPA observes that 
Federal agencies and certifying authorities might consider various 
factors, such as project type, complexity, location, and scale; the 
certifying authority's administrative procedures; and the potential for 
the licensed or permitted activity to affect water quality. Federal 
agencies and certifying authorities might also elect to establish joint 
reasonable period of time procedures and agreements through a 
memorandum of agreement (MOA). Such MOAs could apply to all potential 
projects or only to projects of a specified type. As discussed further 
below, such MOAs could also address how and when the agencies might 
change or extend the reasonable period of time. Alternatively, Federal 
agencies and certifying authorities might prefer to establish the 
reasonable period of time on a project-by-project basis. Whichever 
approach is taken to establish the reasonable period of time, the 
certifying authority must inform the Federal agency of the date of 
receipt of a certification request that meets the certifying 
authority's applicable submission procedures to signal the start of the 
reasonable period of time clock. See proposed Sec. Sec.  121.5(d), 
121.6(a).
    As discussed above, if the agencies do not agree on the length of a 
reasonable period of time within 30 days of receipt of a request for 
certification, the default reasonable period of time would apply. See 
proposed Sec.  121.6(c) This default approach obviates the need for a 
dispute resolution process in the event the certifying authority and 
Federal agency are not able to agree on the reasonable period of time.
    EPA believes that a default reasonable period of time of 60 days is 
a sensible and practical interpretation of the reasonable period of 
time concept. First, the approach is responsive to stakeholder concerns 
regarding the 2020 Rule's approach. In pre-proposal outreach, several 
stakeholders indicated that most delays in the certification process 
were attributed to lack of information. As discussed in section V.C in 
this preamble, EPA is proposing that all requests for certification 
must include a copy of the draft license or permit and any existing and 
readily available data or information related to potential water 
quality impacts from the proposed project and provides certifying 
authorities with the opportunity to define what additional information 
is needed in a certification request. These components of the proposal 
would allow certifying authorities to define what information is 
necessary to initiate a successful certification review process and, 
thus, address lack of information concerns before the reasonable period 
of time begins.
    It bears noting that the statutory language does not guarantee that 
the reasonable period of time is one year in all instances. Rather, 
section 401(a)(1) provides that the reasonable period of time ``shall 
not exceed one year.'' 33 U.S.C. 1341(a)(1). The words ``shall not 
exceed'' imply that the reasonable period of time need not be one full 
year and that a certifying authority should not--in all circumstances--
expect to be able to take a full year to act on a section 401 
certification request. Under the proposal, the certifying authority 
could be subject to a shorter than one-year period of time to render 
its decision, provided that the Federal agency and the certifying 
authority have agreed to a shorter time, or as discussed above, the 
agencies rely on the default reasonable period of time. See Hoopa 
Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019) (``[W]hile a 
full year is the absolute maximum, it does not preclude a finding of 
waiver prior to the passage of a full year.''). Additionally, the 
Agency's longstanding 1971 regulations acknowledged that the reasonable 
period of time may be less than one year. See 40 CFR 121.16(b) (2019) 
(noting that the reasonable period of time is generally six months).
    Based on the Agency's nearly 40 years of experience with NPDES 
permits, the Agency views a 60-day default reasonable period of time as 
appropriate, provided (as the proposed rule would require) that the 
reasonable period of time does not commence until after the Federal 
licensing or permitting agency prepares a draft license or permit. See 
40 CFR 124.53(c)(3) (providing a default 60-day reasonable period of 
time for certification on draft NPDES permits). In the NPDES permitting 
process, draft permits include detailed fact sheets or statements of 
how permit limits and conditions were developed along with legal and/or 
scientific justifications, giving certifying authorities relevant data 
and information to use in their certification process and decision. A 
default 60-day reasonable period of time is also used for certification 
requests on section 404 general permits, which occurs after the Corps 
prepares the draft permit. See 33 CFR 325.2(b)(1)(ii).
    EPA requests comment on this proposed collaborative approach to 
setting the reasonable period of time, the 30-day timeframe that the 
Federal agency and certifying authority would have to determine the 
length of the reasonable period of time, and the 60-day default. The 
Agency also requests comments on alternative approaches, such as 
retaining the approach where the Federal agency is solely responsible 
for determining the reasonable period of time. Another alternative 
approach EPA seeks comment on is whether the default reasonable period 
of time should be shorter or longer depending on when certification is 
requested during the

[[Page 35340]]

licensing or permitting process. For example, if EPA were to decide 
that a draft license or permit is not a required component of a 
certification request, should EPA's regulations specify a different and 
potentially longer default reasonable period of time? Additionally, the 
Agency is soliciting comment on whether and why the default reasonable 
period of time should be longer than 60 days (e.g., 120 days, six 
months, one year). The Agency also requests any information, data, or 
experiences stakeholders can provide on the length of time it has taken 
or should take a certifying authority to act on a request for 
certification.
2. Extensions to the Reasonable Period of Time
    The proposed rule provides that the reasonable period of time may 
be extended upon written agreement by the certifying authority and 
Federal agency, in consultation with the project proponent. Any 
extensions shall not exceed one year from the receipt of the 
certification request. Project proponents would be consulted before any 
changes to the reasonable period of time, but they would not have the 
ability to veto final reasonable period of time decisions jointly made 
by the certifying authority and Federal agency. The statute does not 
explicitly address extending the reasonable period of time once it has 
started; nor does it expressly prohibit extending the reasonable period 
of time as long as the certifying authority ``acts'' within one year 
from receipt of the certification request. The statute also does not 
specify who may extend the reasonable period of time or the terms on 
which it may be extended.
    The 1971 Rule was also silent on reasonable period of time 
extensions. However, several Federal agencies, including EPA and the 
Corps, established regulations allowing extensions to their default 
reasonable periods of time. See 40 CFR 124.53(c) (allowing for a 
reasonable period of time greater than 60 days for certification 
requests on NPDES permits where the EPA Regional Administrator finds 
``unusual circumstances''); 33 CFR 325.2(b)(1)(ii) (allowing for a 
reasonable period of time greater than 60 days for certification 
requests on Corps permits when the ``district engineer determines a 
shorter or longer period is reasonable for the state to act.'').
    The 2020 Rule explicitly allows certifying authorities to request 
an extension of the reasonable period of time. 40 CFR 121.6(d). 
However, only the Federal agency has the power to extend the reasonable 
period of time, and such extension cannot exceed one year from the 
receipt of the certification request. Id.; see also 85 FR 42260 (July 
13, 2020). Under the 2020 Rule, the Federal agency is not required to 
grant reasonable period of time extension requests. See 40 CFR 
121.6(d)(2). As a result, Federal agencies may deny those requests even 
in situations where the certifying authority said it was not able to 
act within the established timeframe (e.g., where state public notice 
procedures required more time than the regulatory reasonable period of 
time). In pre-proposal input, at least one stakeholder observed that a 
Federal agency's failure to grant an extension request could lead to 
certification denials. Other stakeholders noted that certifying 
authorities should have a say in any extensions of the reasonable 
period of time.
    The proposed requirement to include a copy of the draft license or 
permit (and any existing and readily available data or information 
related to potential water quality impacts from the proposed project) 
in the request for certification, and the opportunity to 
collaboratively set the reasonable period of time, should reduce the 
need for extensions. However, the Agency recognizes there may be 
circumstances where the established or default reasonable period of 
time are not sufficient to allow the certifying authority to complete 
its review. Accordingly, the Agency is proposing to allow certifying 
authorities and Federal agencies to jointly extend the reasonable 
period of time in a written agreement, as long as the project proponent 
is consulted and the extension does not exceed one year from the 
receipt of request for certification. See proposed Sec.  121.6(d). 
Consistent with this proposed collaborative approach, the Agency is not 
proposing to retain the regulatory text located at Sec.  121.6(d) that 
permits Federal agencies to unilaterally determine whether to extend 
the reasonable period of time. This proposal does not preclude a 
Federal licensing or permitting agency from extending the reasonable 
period of time after a certification has been issued, as long as the 
extension will not exceed one year from receipt of the request for 
certification.\39\
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    \39\ For example, a certifying authority may submit a new or 
revised certification decision after it acts on a certification 
request if the reasonable period of time has not expired and the 
Federal licensing or permitting agency agrees. See U.S. EPA and 
Department of the Army, Clean Water Act Section 401 Certification 
Implementation Memorandum (August 19, 2021). In contrast to the 
certification modification proposed at Sec.  121.10, a new 
certification decision made within the reasonable period of time 
will supersede the previous certification decision.
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    The Agency expects that certifying authorities and Federal agencies 
will collaboratively agree to extensions to the reasonable period of 
time where needed. For example, the certifying authority and Federal 
agency could develop in a MOA a process to identify scenarios where 
changes to the reasonable period of time would be appropriate. Such 
scenarios may include situations where relevant new information becomes 
available during the reasonable period of time. EPA notes that the 
proposed rulemaking promotes early collaboration and pre-filing 
meetings to allow the Federal agency, certifying authority, and the 
project proponent to discuss project complexity, seasonal limitations, 
and other factors that may influence the time needed to complete the 
certification review. These opportunities may reduce the need to extend 
the jointly established or default reasonable period of time.
    However, the Agency also recognizes that there are circumstances 
under which the Federal agency should extend the reasonable period of 
time without the certifying authority needing to negotiate an 
agreement. Such situations, which were not included in the 2020 Rule, 
include where a certification decision cannot be rendered within the 
reasonable period of time due to force majeure events (including, but 
not limited to, government closure or natural disasters). Extensions 
may also be necessary in jurisdictions where the state or tribal public 
notice and comment process takes longer than the negotiated or default 
reasonable period of time. To address pre-proposal input, in contrast 
to the 2020 Rule, the Agency is proposing to identify a limited list of 
scenarios that would require the extension of the reasonable period of 
time. See proposed Sec.  121.6(c). If a longer period of time to review 
the request for certification is necessary due to these circumstances, 
upon notification by the certifying authority prior to the end of the 
reasonable period of time, the reasonable period of time shall be 
extended by the period of time necessitated by public notice 
requirements or the force majeure event. In its notification, the 
certifying authority must provide the Federal agency with a written 
justification for an extension. Ultimately, such extension may not 
exceed one year from receipt of the request for certification. The 
justification would describe the circumstances supporting the extension 
(i.e., accommodating the certifying authority's public notice 
requirements, government closures, or natural

[[Page 35341]]

disasters) and does not require Federal agency approval before taking 
effect. For example, if the reasonable period of time is set to the 
default 60 days and the certifying authority has a 90-day public notice 
requirement, then the certifying authority would provide a written 
justification to the Federal agency prior to the end of the reasonable 
period of time for an extension to accommodate the public notice 
requirement. The extended reasonable period of time would take effect 
upon notification by the certifying authority to the Federal agency.
    The proposed approach balances Federal agency and certifying 
authority equities better than the 1971 Rule and the 2020 Rule by 
allowing the Federal agency and certifying authority to determine 
collaboratively whether and how the reasonable period of time should be 
extended. This approach to extensions aligns with the approach proposed 
above for joint establishment of the reasonable period of time. It also 
aligns with cooperative federalism principles central to the CWA. 
Moreover, it encourages stakeholder cooperation and allows for input 
from the project proponent. EPA is soliciting comment on this proposed 
approach. The Agency is also seeking comment on the list of situations 
described in the regulatory text under which extensions would be 
automatic, for example, whether other circumstances should be expressly 
included. Additionally, the Agency seeks comment on any alternative 
approaches, such as only allowing the Federal licensing or permitting 
agency to determine any extensions of the reasonable period of time, 
not requiring the project proponent to be consulted before an extension 
decision, or not allowing any extensions of the reasonable period of 
time after the agreed to or default reasonable period of time has been 
established.
    Consistent with this proposal, the Agency is also proposing to 
delete the part 124 provisions regarding the reasonable period of time 
for certification on EPA-issued NPDES permits, currently located at 40 
CFR 124.53(c)(3), in favor of the reasonable period of time provisions 
in proposed Sec.  121.6. The approach to the reasonable period of time 
taken in Sec.  124.53(c) is not fully consistent with the approach 
proposed at Sec.  121.6. For instance, unlike proposed Sec.  121.6(b), 
Sec.  124.53(c)(3) does not involve certifying authority collaboration 
in setting the reasonable period of time. And unlike proposed Sec.  
121.6(c), Sec.  124.53(c)(3) does not allow for automatic extensions to 
accommodate a certifying authority's public notice requirements or 
force majeure events (instead allowing extensions beyond the default 60 
days only if EPA finds ``unusual circumstances'' require a longer 
time).
3. Withdrawal and Resubmissions of Requests for Certification
    EPA is aware that, historically under the 1971 Rule, certifying 
authorities asked project proponents to withdraw and resubmit their 
certification requests in order to restart the clock and provide more 
time to complete their certification review. EPA is also aware that 
this practice has been subject to Federal court litigation. In this 
proposed rule, EPA is not taking a position on the legality of 
withdrawing and resubmitting a certification request. While there may 
be situations where withdrawing and resubmitting a certification 
request is appropriate, drawing a bright regulatory line on this issue 
is challenging, and the law in this area is dynamic. See Hoopa Valley 
Tribe v. FERC, 913 F.3d 1099, 1105 (D.C. Cir. 2019) (holding that a 
repeated, coordinated withdrawal and resubmittal of a certification 
request resulted in a waiver); N.C. Dep't of Envtl. Quality (NCDEQ) v. 
FERC, 3 F.4th 655, 676 (4th Cir. 2021) (finding that the record did not 
support FERC's determination that the state and project proponent 
withdrew and resubmitted the certification request in a coordinated 
fashion). For these reasons, the proposed rulemaking does not take a 
position on this issue, instead allowing the courts and the different 
state and tribal certifying authorities to make case-specific decisions 
or issue their own regulations addressing the practice.
    Neither section 401 nor the 1971 Rule specifically address the 
practice of withdrawing a certification request and submitting a new 
request to restart the reasonable period of time. On the other hand, 
the 2020 Rule prohibits the certifying authority from asking the 
project proponent to withdraw the certification request to reset the 
reasonable period of time. 40 CFR 121.6(e). In support of that 
position, the 2020 Rule relies on a broad reading of the D.C. Circuit's 
decision in Hoopa Valley Tribe and asserts that the regulatory text at 
Sec.  121.6(e) is a ``clear statement that reflects the plain language 
of section 401 and . . . is supported by the legislative history.'' 85 
FR 42261. In that case, which featured highly unusual facts,\40\ the 
court rejected the particular ``withdraw and resubmit'' \41\ strategy 
the project proponents and states had used to avoid waiver of 
certification for a FERC license. 913 F.3d at 1105. The court held that 
a decade-long ``scheme'' to subvert the one-year review period 
characterized by a formal agreement between the certifying authority 
and the project proponent, whereby the project proponent never even 
submitted a new request, was inconsistent with the statute's one-year 
deadline. Id. Significantly, the court said it was not addressing the 
legitimacy of a project proponent actually withdrawing its request and 
then submitting a new one, or how different a new request had to be to 
restart the one-year clock. Id. at 1104.
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    \40\ The court held that the project proponent and the 
certifying authorities (California and Oregon) had improperly 
entered into an agreement whereby the ``very same'' request for 
state certification of its relicensing application was automatically 
withdrawn and resubmitted every year for a decade by operation of 
``the same one-page letter,'' submitted to the states before the 
statute's one-year waiver deadline. 913 F.3d at 1104.
    \41\ Historically, certifying authorities and project proponents 
have used the ``withdraw and resubmit'' approach for dealing with 
the one-year deadline for complex projects. There are a multitude of 
permutations, but the basic idea is that the project proponent would 
withdraw the certification request and then resubmit a new 
certification request either immediately or at some later date. The 
Agency recognizes that there may be legitimate reasons for 
withdrawing and resubmitting certification requests, including but 
not limited to the following: a new project proponent, project 
analyses are delayed, or the project becomes temporarily infeasible 
due to financing or market conditions.
---------------------------------------------------------------------------

    On the other hand, at least two circuit courts have acknowledged 
the possibility that withdrawal and resubmittal of a certification 
request may be a viable mechanism for addressing complex certification 
situations. See NCDEQ, 3 F.4th at 676 (withdrawal and resubmittal 
appropriate where the certifying authority and project proponent did 
not engage in a coordinated scheme to evade the reasonable period of 
time); NYSDEC, 884 F. 3d at 456 (noting in dicta that the state could 
``request that the applicant withdraw and resubmit the application''). 
Additionally, EPA's guidance prior to the 2020 Rule acknowledged use of 
the withdrawal and resubmittal approach, as well as the ``deny 
certification without prejudice to refile'' approach but noted that 
``[t]his handbook does not endorse either of the two approaches . . . 
.'' 2010 Handbook, at 13, n.7 (rescinded).
    During pre-proposal input, many state and tribal stakeholders said 
they did not support the 2020 Rule's position on the withdrawal and 
resubmittal process. These stakeholders called for more flexibility in 
the case of unexpected and significant changes in the project. For the 
reasons discussed below, EPA is not

[[Page 35342]]

proposing to retain the regulatory text at Sec.  121.6(e) and instead, 
proposing not to take a position in this rulemaking on the 
permissibility of withdrawing and resubmitting a certification request.
    As mentioned above, neither the text of section 401 nor Hoopa 
Valley Tribe categorically precludes withdrawal and resubmission of a 
certification. EPA understands the concern expressed by the D.C. 
Circuit in Hoopa Valley Tribe that prolonged withdrawal and 
resubmission ``schemes'' might--under certain facts--unreasonably delay 
and frustrate the Federal licensing and permitting process. Yet, the 
potential factual situations that might give rise to, and potentially 
justify, withdrawal and resubmission of a certification request are so 
varied that the Agency is not confident that it can create regulatory 
``bright lines'' that adequately and fairly address each situation. By 
not taking a regulatory position on this issue, certifying authorities 
are free to determine on a case-by-case basis whether and when 
withdrawal and resubmittal of a certification request is appropriate. 
Such determinations are ultimately subject to judicial review based on 
their individual facts. The Agency seeks comment on this approach, as 
well as any alternative approaches, such as EPA establishing 
regulations specifically authorizing withdrawals and resubmissions in 
certain factual situations similar (or not) to the circumstances in 
Hoopa Valley Tribe.

D. Scope of Certification

    The Agency is proposing to return to the scope of certification 
standard affirmed by the Supreme Court in PUD No. 1 of Jefferson County 
v. Washington Dep't of Ecology, 511 U.S. 700 (1994). In that case, the 
Court held that section 401 ``is most reasonably read'' as authorizing 
the certifying authority to evaluate and place conditions on what the 
Court described as the ``project in general'' or the ``activity as a 
whole'' to assure compliance with various provisions of the Clean Water 
Act and ``any other appropriate requirement of State law'' once the 
predicate existence of a discharge is satisfied. Id. at 711-12. The 
2020 Rule substantially narrowed the scope of a certifying authority's 
review of a federally licensed or permitted project. Before the 2020 
Rule, a certifying authority could consider whether the federally 
licensed or permitted ``activity as a whole'' might adversely affect 
the quality of the state's or tribe's waters. After the 2020 Rule 
became effective, the certifying authority could only consider 
potential water quality impacts from the project's point source 
``discharges.'' See 85 FR 42229 (July 13, 2020). This change was 
heavily criticized by many states, tribes, and non-governmental 
organizations as unlawfully narrowing the certifying authorities' scope 
of review under section 401. In recognition of, and deference to, the 
central role that states and tribes play in issuing CWA section 401 
certifications, EPA is proposing to modify the regulatory text at Sec.  
121.3 and reaffirm the broader and more environmentally protective 
``activity as a whole'' scope of review that the Supreme Court affirmed 
in PUD No. 1.
    The distinction and choice between ``discharge-only'' and 
``activity as a whole'' is more than semantic and has significant 
environmental consequences. The ``activity as a whole'' approach allows 
states and tribes to holistically consider and protect against impacts 
to their water resources from the licensed or permitted ``project in 
general.'' Id. at 711. For example, stakeholders have commented that a 
``discharge-only'' approach would inappropriately constrain the scope 
of review and conditions relating to hydroelectric dam facilities. 
Specifically, stakeholders stated that addressing the water quality 
impacts of a dam requires a broader review of potential effects beyond 
those caused only by the discharge(s) from a dam's powerhouse or 
tailrace. This is because the chemical, physical, and biological 
integrity of a river is fundamentally altered by the federally licensed 
``activity'' or ``project''--not just the discharges from a specific 
element, e.g., the powerhouse or tailrace. They noted that a dam alters 
the chemical, physical, and biological integrity of a river by placing 
a barrier across it, blocking upstream and downstream passage of 
nutrients and aquatic species, altering the timing and volume of flows, 
transforming a free-flowing riverine reach into a reservoir, and 
converting the energy that oxygenates water into electricity.
    Stakeholders have asserted that a ``discharge-only'' approach to a 
hydroelectric dam facility precludes several kinds of potential non-
discharge-related conditions a certifying authority might add to its 
water quality certification, including fish and eel passage facilities 
(upstream and downstream), fish protection measures concerning intakes, 
wildlife habitat enhancements, and aquatic resource enhancements. 
Stakeholders also noted that FERC-licensed hydropower projects can also 
limit public access to a river, adversely affecting fishing, swimming, 
boating, and other state-adopted and EPA-approved recreational 
designated uses. Conditions assuring protection of those designated 
uses would arguably not be allowed if the scope of review is limited 
only to impacts from the dam's ``discharges.''
    EPA is concerned that many (if not all) of these water quality-
related impacts and potential conditions might fall outside the scope 
of certifying authority review under the 2020 Rule's ``discharge-only'' 
approach to scope of review. The inability of states and tribes to 
protect against such impacts could seriously impair their ability to 
protect valuable water resources. This would be inconsistent with 
Congress's intention to provide states and tribes with this powerful 
certification tool to prevent their water resources from being 
adversely impacted by projects needing Federal licenses or permits.
    In addition to narrowing the scope of review from ``activity as a 
whole'' to ``discharge,'' the 2020 Rule also significantly narrows the 
ability of certifying authorities, pursuant to section 401(d), to 
include conditions in their certifications to protect the quality of 
their waters. Before the 2020 Rule, consistent with EPA's proposed 
interpretation of the statute, a certifying authority could add 
conditions to its certification as necessary to assure compliance with 
the specifically enumerated sections of the CWA and ``any other 
appropriate requirement of State [or Tribal] law.'' 33 U.S.C. 1341(d). 
In the 2020 Rule, however, EPA codified a narrow regulatory 
interpretation of the section 401(d) term ``other appropriate 
requirements of State law.'' 85 FR 42250 (July 13, 2020). With the 2020 
Rule in effect, the certifying authority can only add conditions 
necessary to assure compliance with those specifically enumerated 
sections of the CWA ``and state or tribal regulatory requirements for 
point source discharges into waters of the United States.'' 40 CFR 
121.1(n), 121.3. In recognition of, and deference to, the central role 
that states and tribes play in issuing CWA section 401 certifications, 
EPA is proposing to return to what it now views as the more textually 
accurate and environmentally protective ``any other appropriate 
requirement of State [or Tribal] law'' standard for including 
certification conditions.
    As discussed below, the interpretations of section 401's scope of 
review and conditions EPA is proposing are more closely aligned with 
the statutory text and goals of section 401 than the interpretations in 
the 2020 Rule. Consistent with the principles of cooperative federalism 
that underlie the Clean Water Act and especially section 401, the 
interpretations the Agency is

[[Page 35343]]

proposing would restore the full measure of authority that EPA believes 
Congress intended to grant states and authorized tribes to protect 
their critical water resources.
    The following sections discuss (1) EPA's longstanding position that 
CWA section 401 certifications are limited to addressing water quality 
effects; (2) EPA's decision to reaffirm the Supreme Court's 
interpretation of the scope of certification in PUD No. 1 as the 
``activity as a whole;'' and (3) EPA's decision to return to a broader 
definition of ``water quality requirements'' than that adopted in the 
2020 Rule.
1. Water Quality Impacts From Federally Licensed or Permitted Projects
    The Agency continues to interpret section 401 to provide that, when 
issuing certifications and conditions, certifying authorities may only 
consider and address potential water quality effects. The CWA's 
objective is ``to restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters.'' 33 U.S.C. 1251(a). Among 
the Act's policy declarations is ``the policy of Congress to recognize, 
preserve, and protect the primary responsibilities of States to 
prevent, reduce, and eliminate pollution.'' Id. at 1251(b). As 
discussed in section IV.A in this preamble, Congress intended that 
section 401 provide states and tribes with a powerful tool to prevent 
their water resources from being adversely impacted by projects needing 
Federal licenses or permits. While the text of section 401 does not 
expressly state that certifications and conditions may only consider 
and address water quality effects, the courts have consistently 
clarified that this is so. See Am. Rivers, Inc. v. FERC, 129 F.3d 99, 
107 (2d Cir. 1997) (``Section 401(d), reasonably read in light of its 
purpose, restricts conditions that states can impose to those affecting 
water quality in one manner or another.''); see also PUD No. 1, 511 
U.S. at 711-713 (holding that a state's authority to impose conditions 
under section 401(d) ``is not unbounded''). This view is also 
consistent with prior Agency interpretations articulated in the 2020 
Rule and prior Agency guidance. See 85 FR 42250 (``The scope of a Clean 
Water Act section 401 certification is limited to assuring that a 
discharge from a Federally licensed or permitted activity will comply 
with water quality requirements.''); 2010 Handbook, at 16 (rescinded) 
(``As incorporated into the 1972 CWA, [section] 401 water quality 
certification was intended to ensure that no federal license or permits 
would be issued that would prevent states or tribes from achieving 
their water quality goals or that would violate CWA provisions.'').
    Accordingly, EPA continues to maintain that it would be 
inconsistent with the purpose of CWA section 401 to deny or condition a 
section 401 certification based solely on potential air quality, 
traffic, noise, or economic impacts that have no connection to water 
quality. In pre-proposal outreach, it appeared that some stakeholders 
were confused about whether an EPA proposal to align the scope of 
review with PUD No.1 would allow certifying authorities to deny or 
condition certifications based on potential environmental or societal 
impacts not related to water quality. It is not the Agency's intention 
to do so or to include consideration of such non-water quality-related 
impacts within the proposed ``activity as a whole'' scope of review.
    The preamble to the final 2020 Rule identified examples of 
certification conditions possibly falling outside the water quality-
related scope of section 401 review because they did not address water 
quality impacts, including one-time and recurring payments to state 
agencies for improvements or enhancements that are unrelated to the 
proposed federally licensed or permitted project; conditions to address 
potential non-water quality-related environmental impacts from the 
creation, manufacture, or subsequent use of products generated by a 
proposed federally licensed or permitted activity or project; and 
conditions related only to non-water quality-related impacts associated 
with air emissions and transportation effects. See 85 FR 42230. Subject 
to a case-by-case review of the particular facts presented by each 
certification, EPA thinks it reasonable to assume that such non-water 
quality-related conditions would generally be beyond the scope of 
section 401.
    On the other hand, some conditions that stakeholders have 
identified as potentially problematic may, in fact, be appropriate as 
necessary to prevent adverse impacts to a state's or tribe's water 
quality. Depending on the circumstances, examples of conditions that 
might be appropriate to include in a state or tribal certification to 
comply with water quality requirements could be: building and 
maintaining fish passages (related to protecting designated uses); the 
construction of public access for fishing (related to protecting 
recreational/fish consumption designated uses); maintaining minimum 
flow rates for visual, auditory, and religious experiences (related to 
protecting designated uses); compensatory wetland and riparian 
mitigation (related to protecting designated uses and criteria); 
temporal restrictions on activities to protect sensitive aquatic 
species (related to protecting designated uses); pre-construction 
monitoring and assessment of resources (related to protecting 
designated uses and criteria); habitat restoration (related to 
protecting designated uses and criteria); construction of recreation 
facilities to support designated uses (e.g., whitewater release for 
kayakers, canoe portages, parking spaces) (related to protecting 
designated uses); tree planting along waterways (related to protecting 
designated uses and criteria); and spill management and stormwater 
management plans (related to protecting designated uses and criteria). 
For these and other potentially qualifying conditions, EPA believes 
that it is appropriate for the certifying authority to consider the 
broadest possible range of water quality effects and that the 
appropriateness of any given condition will depend on an analysis of 
all relevant facts.
    The Agency invites comment on to what extent section 401 
certification review and conditions should be limited to potential 
water quality-related effects or should also consider non-water 
quality-related impacts.
2. ``Activity as a Whole''
    EPA is proposing to return to the ``activity as a whole'' or 
``project in general'' scope of certification review and conditions 
that the Supreme Court affirmed in PUD No. 1. Having carefully reviewed 
the 2020 Rule in light of pre-proposal stakeholder comments, EPA has 
determined that the ``activity as a whole'' interpretation of scope is 
more consistent with the statutory text, legislative history, and water 
quality protective goals of the CWA than the 2020 Rule's ``discharge-
only'' approach. The Agency also finds that the more environmentally 
protective ``activity as a whole'' interpretation of scope is better 
aligned with the cooperative federalism principles animating section 
401.
    The first sentence of section 401(a)(1) provides that a 
certification must be obtained by ``any applicant for a Federal license 
or permit to conduct any activity . . . which may result in any 
discharge into the navigable waters.'' 33 U.S.C. 1341(a)(1) (emphasis 
added). These three italicized words--``applicant,'' ``activity,'' and 
``discharge''--are the semantic building blocks used to support two 
differing interpretations of scope of review. Supporters of the

[[Page 35344]]

``discharge-only'' interpretation of scope of review chiefly rely on 
Congress's use of the word ``discharge'' in section 401(a)(1) in 
support of the proposition that states and tribes may only consider 
water quality impacts from the project's discharges when deciding 
whether to certify or add conditions to federally licensed or permitted 
projects. EPA disagrees with this overly narrow interpretation. 
Following its reconsideration of the statutory text, the Agency 
believes that Congress's use of the words ``applicant'', ``activity'', 
and ``discharge'' in section 401(a)(1), ``applicant'' in section 
401(d), and its failure to use the word ``discharge'' in section 
401(d), create enough ambiguity to support an interpretation that 
certifying authority review, and the ability to impose conditions, 
extends to the project proponent's ``activity as a whole,'' or in other 
words, the ``project in general.'' In the 2020 Rule, EPA acknowledged 
that the statutory language addressing scope of review is ambiguous and 
subject to interpretation. See 85 FR 42232. In light of that ambiguity, 
EPA now agrees with the Supreme Court in PUD No. 1 that ``activity as a 
whole'' is ``a reasonable interpretation of [section] 401.'' PUD No. 1, 
511 U.S. at 712.\42\
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    \42\ The dissent in PUD No. 1 offered a more limited 
interpretation of section 401(d)'s scope, stating that ``while 
[section] 401(d) permits a State to place conditions on a 
certification to ensure compliance of the `applicant,' those 
conditions must still be related to discharges.'' 511 U.S. at 727 
(Thomas, J., dissenting with whom Scalia, J., joined).
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    In PUD No. 1, the Supreme Court reviewed a water quality 
certification issued by the State of Washington for a new hydroelectric 
project on the Dosewallips River. The principal dispute adjudicated in 
PUD No. 1 was whether a certifying authority may require a minimum 
stream flow as a condition in a certification issued under section 401. 
The project applicant identified two potential discharges from its 
proposed hydroelectric facility: ``the release of dredged and fill 
material during construction of the project, and the discharge of water 
at the end of the tailrace after the water has been used to generate 
electricity.'' Id. at 711. The project applicant argued that the 
minimum stream flow condition was unrelated to these discharges and 
therefore beyond the scope of the state's authority under section 401. 
Id.
    The Court examined sections 401(a)(1) and 401(d), specifically the 
use of different terms in those sections of the statute to inform the 
scope of a section 401 certification. Section 401(a)(1) requires the 
certifying authority to certify that the discharge from a proposed 
federally licensed or permitted project will comply with certain 
enumerated CWA provisions, and section 401(d) authorizes the certifying 
authority to include conditions to assure that the applicant will 
comply with those enumerated CWA provisions and ```any other 
appropriate' state law requirements.'' Id. at 700. Emphasizing that the 
text of section 401(d) ``refers to the compliance of the applicant, not 
the discharge,'' the Court concluded that section 401(d) ``is most 
reasonably read as authorizing additional conditions and limitations on 
the activity as a whole once the threshold condition, the existence of 
a discharge, is satisfied.'' Id. at 712.\43\ The Court recognized that 
section 401 placed some bounds on the ``activity as a whole'' scope, 
noting that a certifying authority ``can only ensure that the project 
complies with `any applicable effluent limitations or other limitations 
under [33 U.S.C. 1311, 1312] or other provisions of the Act,['] `and 
with any other appropriate requirement of State law.''' 511 U.S. at 
712. The Court found that ``at a minimum, limitations imposed pursuant 
to state water quality standards adopted pursuant to [section] 303,''--
the limitations at issue in PUD No. 1--``are `appropriate' requirements 
of state law,'' but declined ``to speculate on what additional state 
laws, if any, might be incorporated by this language.'' Id. at 713.
---------------------------------------------------------------------------

    \43\ Without acknowledging that the 1971 Rule was based on an 
earlier version of the statute, the Court also noted that its 
interpretation was consistent with EPA's 1971 Rule. Id. at 712.
---------------------------------------------------------------------------

    A quarter of a century after PUD No. 1, in its 2020 Rule EPA 
rejected its longstanding ``activity as a whole'' interpretation, 
affirmed by the PUD No. 1 majority, in favor of the dissent's 
``discharge-only'' interpretation of section 401's scope. The 2020 
Rule's interpretation received heavy criticism and was subject to 
multiple legal challenges. Having now carefully reconsidered the 
``discharge-only'' interpretation of scope of review the previous 
Administration announced in the 2020 Rule, EPA has concluded that the 
statutory text, legislative history, and goals of section 401 more 
reasonably support the ``activity as a whole'' standard that was 
accepted practice for the preceding 50 years.
    Congress's 1972 textual revisions to section 21(b) support the 
``activity as a whole'' interpretation of scope. At the same time it 
was revising section 401(a)(1), Congress added section 401(d) that 
required states to include conditions ``necessary to assure'' that 
``any applicant'' will comply with sections 301, 302, 303, 306 and 307 
and ``any other appropriate requirement of State law.'' \44\ Unlike 
section 401(a)(1), section 401(d) does not use the term ``discharge.'' 
Use of the word ``applicant'' instead of ``discharge'' in section 
401(d) introduced ambiguity as to whether the scope of section 401 
review was limited to effects from the discharge alone. In light of 
this ambiguity, EPA believes it is reasonable to interpret the combined 
text of sections 401(a)(1) and 401(d) as supporting ``activity as a 
whole'' as the proper scope of certification. 511 U.S. at 711-712. 
(``[Section] 401(d) is most reasonably read as authorizing additional 
conditions and limitations on the activity as a whole once the 
existence of the threshold condition, existence of a discharge, is 
satisfied.''). Because section 401(d) requires that a section 401(a) 
certification include conditions ``necessary to assure'' the 
applicant's compliance with the five CWA sections listed in section 
401(a)(1) and ``any other appropriate requirement of State law,'' 
section 401(d) is most reasonably read to require the certifying 
authority--when it reviews a certification request under section 
401(a)(1)--to review the potential water quality impacts from the 
``project in general,'' i.e, the ``activity as a whole,'' and not 
merely evaluate the water quality effects of the potential discharge. 
This approach is reasonable because it accounts for the fact that the 
applicant for certification is responsible for a wide variety of 
activities at the project site that might affect water quality in 
addition to any potential ``discharge.'' To assure--as it must under 
section 401(d)--that ``the applicant'' complies with all applicable 
state or tribal and Federal water quality requirements, the certifying 
authority must be able to evaluate potential water quality effects from 
the applicant's ``activity as a whole.'' \45\
---------------------------------------------------------------------------

    \44\ Public Law 92-500, 401, 85 Stat. 816 (1972).
    \45\ PUD No. 1 also said its ``activity as a whole'' 
interpretation was consistent with EPA's 1971 Rule at 40 CFR 
121.2(a)(3) (2019) (requiring reasonable assurance that the 
``activity'' will not violate applicable water quality standards) 
and with EPA's 1989 Guidance. It is worth noting, however, that 
EPA's 1971 Rule pre-dated the 1972 amendments and was based on the 
language of the 1970 version of the statute which used the word 
``activity'' instead of ``discharge.'' While the Court appeared to 
be unaware of that fact, it is of minor significance because EPA's 
conclusion that ``activity as a whole'' is the most reasonable 
interpretation is based on the statutory text and legislative 
history, not EPA's regulations preceding enactment of the 1972 law.
---------------------------------------------------------------------------

    The text of CWA sections 401(a)(3)-(5) also supports an ``activity 
as a whole'' interpretation of section 401's scope. Section 401(a)(3) 
provides that a

[[Page 35345]]

certification for a facility's construction fulfills the section 401 
obligations with respect to its operation unless the certifying 
authority determines there is no longer reasonable assurance of 
compliance with sections 301, 302, 303, 306 and 307 because of changes 
in ``(A) the construction and operation of the facility.'' See 33 
U.S.C. 1341(a)(3). ``Construction and operation of the facility'' is 
clearly a broader concept than ``discharge.'' In addition, section 
401(a)(4) guarantees that the certifying authority has the opportunity 
``to review the manner in which the [previously certified] facility or 
activity shall be operated or conducted'' prior to its initial 
operation ``for the purpose of assuring that applicable effluent 
limitations or other limitations or water quality requirements will not 
be violated.'' See id. at 1341(a)(4). If this review results in 
suspension of the facility's permit, the permit shall remain suspended 
until notification from the certifying authority that ``there is 
reasonable assurance that such facility or activity will not violate 
the applicable provisions of section 1311, 1312, 1313, 1316 and 1317.'' 
Id. Lastly, section 401(a)(5) provides that any certified Federal 
license or permit may be suspended or revoked by the Federal licensing 
or permitting agency ``upon the entering of a judgment under this 
chapter that such facility or activity has been operated in violation 
of the applicable provisions of section 1311, 1312, 1313, 1316 and 
1317.'' See id. at 1341(a)(5). The scope of review employed in each of 
these subsections is whether there has been compliance by the 
``facility or activity'' with the five CWA sections identified in 
section 401(a)(1), and not merely compliance by the ``discharge.'' 
Congress's application of this ``facility'' and ``activity'' scope of 
review in sections 401(a)(3)-(5) is consistent with and supports an 
``activity as a whole'' interpretation of sections 401(a)(1) and 
401(d).
    The legislative history of CWA section 401, and its predecessor 
section 21(b) of the Water Quality Improvement Act of 1970, also 
supports the ``activity as a whole'' interpretation of scope. EPA 
believes that the mere fact that Congress changed a single word 
``activity'' to ``discharge'' in section 401(a)(1) of the 1972 Act is 
not dispositive, or even persuasive, that Congress intended to shrink 
the scope of review under sections 401(a)(1) and (d) from consideration 
of water quality effects caused by the ``project in general'' or 
``activity as a whole'' to those caused only by the discharge.
    It is not obvious from the legislative history that such a 
significant shift was intended. It is, however, quite clear from the 
legislative history that, in 1972, Congress thought it was making only 
``minor,'' insubstantial changes to section 21(b). The Senate Report 
stated that section 401 was ``substantially section 21(b) of the 
existing law.'' S. Rep. No. 92-414, at 69 (1971). See also remarks of 
Sen. Baker: ``Section 21(b), with minor changes, appears as section 401 
of the pending bill S.2770.'' 117 Cong. Rec. 38857 (1971). Nowhere in 
the legislative history is there a statement to the effect that 
Congress understood it was dramatically shrinking section 401's scope 
of review to only those water quality effects caused by a potential 
discharge. To the contrary, the House Report stated that ``[i]t should 
be clearly noted that the certifications required by section 401 are 
for activities which may result in any discharge into navigable 
waters.'' H.R. Rep. 92-911, at 124 (1972) (emphasis added). Indeed, in 
summarizing section 401, Senator Muskie stated that ``[a]ll we ask is 
that activities that threaten to pollute the environment be subjected 
to the examination of the environmental improvement agency of the State 
for an evaluation and recommendation before the federal license or 
permit be granted.'' 117 Cong. Rec. 38854 (1971) (emphasis added). See 
also H.R. Rep. 92-911, at 121 (1972) (stating that ``[t]he term 
`applicable' as used in section 401 . . . means that the requirement 
which the term `applicable' refers to must be pertinent and apply to 
the activity and the requirements must be in existence by having been 
promulgated or implemented.'') (emphasis added).
    A comparison of section 21(b) and section 401 reveals that the two 
sections are, indeed, substantially the same. In light of the 
previously discussed legislative history affirming that the 1972 law 
was ``substantially'' the same as the 1970 law, EPA does not think it 
reasonable to assume that Congress intended to make fundamental changes 
to the scope of the certifying authority's certification review merely 
by changing a single word (``activity'') in section 401(a) when--at the 
same time--it added a different and more expansive formulation based on 
the word ``applicant'' in section 401(d). See Whitman v. Am. Trucking 
Ass'ns, 531 U.S. 457, 468 (2001) (``Congress, we have held, does not 
alter the fundamental details of a regulatory scheme in vague terms or 
ancillary provisions--it does not, one might say, hide elephants in 
mouseholes.'').
    Congress's revisions to section 401(a) in the 1977 CWA amendments 
also suggests it continued to support the application of the broader 
``activity'' approach. Legislative history from 1977 states that 
Congress intended for ``[t]he inserting of section 303 into the series 
of sections listed in section 401 [ ] to mean that a federally licensed 
or permitted activity, including discharge permits under section 402, 
must be certified to comply with State water quality standards adopted 
under section 303.'' H.R. Rep. No. 95-830, at 96 (1977) (emphasis 
added).
    The Agency invites comment on its proposal to readopt the 
``activity as a whole'' definition of scope of review under section 
401(a)(1) and scope of conditions under section 401(d). The Agency is 
also seeking comment on whether it should adopt the ``discharge-only'' 
scope of review announced in the 2020 Rule.
    Consistent with the discussion above, the Agency is proposing to 
define the term ``activity as a whole'' to capture ``any aspect of the 
project activity with the potential to affect water quality.'' See 
proposed Sec.  121.1(a). This approach provides certifying authorities 
with the ability to consider any aspect of the federally licensed or 
permitted activity that may adversely impact water quality. As the 
stakeholder input described above illustrates, the impacts of a 
federally licensed or permitted project on a certifying authority's 
water resources may be caused by aspects of the project's activity in 
addition to the potential discharge that triggered the need to seek 
section 401 certification. Accordingly, the Agency's proposed 
definition for the term ``activity as a whole'' is meant to include all 
activity at the proponent's ``project in general'' with the potential 
to affect water quality (e.g., construction and operation of the 
project or facility). This definition of ``activity as a whole'' is 
consistent with previously issued EPA guidance, which identified the 
scope of review as ``all potential water quality impacts of the 
project, both direct and indirect, over the life of the project.'' See 
1989 Guidance, at 22 (``[I]t is imperative for a State review to 
consider all potential water quality impacts of the project, both 
direct and indirect, over the life of the project.''); see also 2010 
Handbook, at 17 (rescinded) (``Thus, it is important for the [section] 
401 certification authority to consider all potential water quality 
impacts of the project, both direct and indirect, over the life of the 
project.'') (citing PUD No.1, 511 U.S. at 712 (1994)). The Agency 
invites comment on its proposed interpretation of the term ``activity 
as a whole.''
    The Agency also understands that, while PUD No. 1 used the term 
``activity as a whole,'' the Court did not offer a

[[Page 35346]]

specific definition of that term, specifically what ``activity'' should 
be examined as a whole. Nevertheless, certifying authorities and 
Federal agencies have gained significant experience over nearly 50 
years implementing an ``activity as a whole'' approach, and EPA 
believes that certifying authorities and Federal agencies are capable 
of appropriately delineating the ``activity as a whole'' or the 
``project in general'' based on the facts of each situation. EPA is not 
aware of any cases in which delineation of ``activity as a whole'' has 
been litigated, provided that the scope of review was limited to water 
quality. While EPA intends the word ``activity'' in the term ``activity 
as a whole'' to include all activities of the ``project in general'' 
that might affect water quality, EPA invites comment on whether EPA 
should specifically define the term ``activity'' to mean only those 
activities at the project site that are specifically authorized by the 
Federal license or permit in question. EPA also invites comment on 
whether and how the Federal licensing or permitting agency could 
effectively implement a certification with conditions addressed to 
impacts from the ``activity as a whole'' if it has authority over only 
a small part of a larger project. What challenges would be presented to 
the licensing or permitting authority's ability to administer and 
enforce its license or permit?
    To illustrate, assume there are two hydroelectric facilities on the 
same river. Facility A has yet to be constructed and may require 
multiple Federal licenses or permits. It may require a FERC license for 
its construction and operation, a CWA section 404 permit for dredge and 
fill activity related to its construction, and a CWA section 402 permit 
to discharge pollutants during its operation. Facility B, on the other 
hand, has already been constructed and only needs a CWA section 402 
permit to discharge pollutants before it may commence operations. EPA 
invites comment on whether the same ``activity'' viewed ``as a whole'' 
should define the scope of review applicable to certifications for both 
facilities.
    With respect to the broad, relatively comprehensive licenses and 
permits issued by FERC and the Corps for construction and operation of 
Facility A, the Agency sees little difference in the scope of review 
and conditions that may be included in certifications issued under 
either a broad or potentially narrower approach to defining the 
relevant ``activity.'' That is because their licenses and permits are 
generally comprehensive enough in what they authorize that there would 
appear to be few if any significant aspects of a project's activity 
that fall outside the scope of activities authorized by the Federal 
license or permit. Accordingly, for these kinds of licenses and 
permits, EPA believes that any significant potential water quality-
related impacts could be addressed by a certification condition on the 
``activity'' whether it is construed to be the activities comprising 
the ``project in general'' or ``the specific activity authorized by the 
federal license or permit.''
    EPA requests comment on whether a different outcome might apply to 
Facility B. As discussed above, Facility B only needs an NPDES permit 
to discharge pollutants to commence operations. For purposes of this 
example, assume EPA will be issuing the NPDES permit because the 
jurisdiction in which the facility is sited does not have NPDES permit 
authority. In the case of Facility B, should the scope of the 
certifying authority's section 401 review for the Federal NPDES permit 
include the potential for water quality-related impacts from Facility 
B's ``activity'' broadly defined to include water quality-related 
impacts from Facility B's entire construction and operation, including 
aspects previously authorized by a FERC license or CWA 404 permit? Or 
should the scope of the certifying authority's section 401 review for 
Facility B's Federal NPDES permit include only those potential impacts 
caused by Facility B's activity narrowly defined as specifically 
authorized by the NPDES permit, i.e., the discharge of pollutants like 
heated water, oil, and grease introduced by the operation of Facility 
B's turbines, and not include other aspects of Facility B's 
construction and operation?
    As discussed above, the choice of the narrower approach to defining 
``activity'' within the context of ``activity as a whole'' may limit 
the kinds of conditions that may be placed on a project proponent's 
``activity'' given that the scope of authorization under a more 
circumscribed permit, e.g., the NPDES permit for Facility B, would 
extend to a narrower range of the project proponent's activities, e.g., 
only the discharge of pollutants and not the other aspects of the dam's 
operation not regulated under section 402.
3. Water Quality Requirements
    Under this proposal, when a certifying authority reviews a 
federally licensed or permitted activity, it must determine whether the 
``activity as a whole'' will comply with ``water quality 
requirements.'' Logically, the ``activity as a whole'' standard would 
apply to a certifying authority's evaluation of potential water quality 
effects under both sections 401(a)(1) and 401(d). This is because the 
two sections are inextricably linked. Section 401(d) requires a 
certifying authority to determine whether ``the applicant'' will--
without additional conditions--comply with the specified CWA provisions 
and ``any other appropriate'' requirement of state law. Only if the 
certifying authority determines pursuant to section 401(d) that adding 
``any effluent limitations and other limitations, and monitoring 
requirements'' to the license or permit will assure that water quality 
requirements will be met, may the certifying authority grant the 
certification contemplated by section 401(a)(1). The certifying 
authority's evaluations and determinations under sections 401(a)(1) and 
401(d) do not work together in a harmonious fashion if the statute is 
interpreted to apply a different scope of review standard to each 
section.
    Because EPA interprets the scope of certification review under 
sections 401(a)(1) and (d) to be the same, the same ``activity as a 
whole'' standard applies to a grant of certification, a grant of 
certification with conditions, and a denial. For example, when a 
certifying authority determines that it must add conditions under 
section 401(d) to justify a grant of certification under section 
401(a), that is equivalent to deciding that, without those conditions, 
it must deny certification. The standard for each of the potential 
certification decisions is therefore essentially the same.
    To clarify which provisions of Federal and state law a certifying 
authority may consider when evaluating and ultimately deciding which 
action to take on a certification request pursuant to sections 401(a) 
and (d), the Agency is proposing to define the term ``water quality 
requirements.'' See proposed Sec.  121.1(m). The term ``water quality 
requirements'' is used throughout section 401, and the term ``any other 
appropriate requirement of State law'' is used in section 401(d), but 
neither term is defined in the CWA. The Agency did not interpret the 
term ``water quality requirements'' in the 1971 Rule, perhaps because 
the term ``water quality requirements'' was not introduced into section 
401 until the 1972 CWA amendments, where it replaced the term ``water 
quality standards'' throughout the section. See Public Law 91-224, 
21(b)(1), 85 Stat. 91 (1970); Public Law 92-500, 401, 85 Stat. 816 
(1972). Accordingly, the 1971 Rule used the

[[Page 35347]]

term ``water quality standards'' consistent with the text of the 1970 
statutory version of the certification provision. Similarly, the 1971 
Rule did not account for the term ``other appropriate requirement of 
State law'' since section 401(d) was not introduced until 1972.
    The 2020 Rule defines the term ``water quality requirements,'' and 
subsumes the phrase ``any other appropriate requirement of State law'' 
into the term ``water quality requirements.'' 40 CFR 121.1(n); see 85 
FR 42253. Consistent with what EPA characterized as the discharge-only 
scope of section 401, the preamble to the final 2020 Rule limited 
``water quality requirements'' to only the enumerated provisions of the 
CWA listed in section 401(a)(1) and ``state or tribal regulatory 
requirements for point source discharges into waters of the United 
States.'' 40 CFR 121.1(n). Citing Justice Thomas's dissent in PUD No. 
1, the Agency relied on the principle ejusdem generis to argue that the 
term ``appropriate requirement of State law'' was limited ``only to 
provisions that, like other provisions in the statutory list, impose 
discharge-related restrictions.'' 511 U.S. at 728 (Thomas, J., 
dissenting); 85 FR 42453. As a result, the 2020 Rule significantly 
narrows the scope of review and ability of certifying authorities to 
include conditions to protect their water quality.
    In proposing the definition of the term ``water quality 
requirements'' set out in this document, the Agency has reconsidered 
the 2020 Rule's definition of the term and finds it appropriate to 
interpret the term in a way that respects what EPA believes is the full 
breadth of the Federal and state water quality-related provisions that 
Congress intended a certifying authority to rely upon when developing 
its certification and conditions. Accordingly, EPA is now proposing to 
define ``water quality requirements'' to include any limitation, 
standard, or other requirement under the provisions enumerated in 
section 401(a)(1), any Federal and state laws or regulations 
implementing the enumerated provisions, and any other water-quality 
related requirement of state or tribal law regardless of whether they 
apply to point or nonpoint source discharges.
    The text, purpose, and legislative history of the statute support 
the proposed interpretation of ``water quality requirements.'' In 
section 401(d) Congress said that certifying authorities must include 
conditions in their certifications to assure that any applicant will 
comply with enumerated provisions of the CWA and ``any other 
appropriate requirement of State law.'' 33 U.S.C. 1341(d) (emphasis 
added). The word ``any'' is capacious in its scope, literally meaning 
``all'' such state law requirements and not just a limited subset, 
e.g., point source-related requirements. While the word ``appropriate'' 
arguably provides a limiting principle with respect to which 
requirements may be considered and applied, the word ``appropriate'' is 
to be interpreted broadly in light of statute's text and purpose. 
Michigan v. EPA, 576 U.S. 743, 752 (2015) (stating that ``appropriate'' 
is a broad and all-encompassing term that naturally and traditionally 
includes consideration of all the relevant factors). In this context, 
the word ``appropriate'' is more reasonably understood as specifying 
the ``water quality-related'' nature of such requirements and not their 
``point source'' character. This interpretation is consistent with the 
water quality protection goals of the CWA, as well as the Supreme 
Court's affirmance of EPA's longstanding interpretation in PUD No. 1 
that water quality certifications and their conditions must assure that 
the ``activity as a whole''--and not just its point source discharges--
does not adversely impact the quality of a certifying authority's 
waters.
    Application of the maxim ejusdem generis to limit ``appropriate 
requirement of State law'' only to those state law provisions that 
impose discharge-related restrictions is misplaced. The list of CWA 
provisions referenced in section 401(a)(1), and in section 401(d) by 
incorporation, includes section 303, which addresses the requirement to 
adopt water quality standards for a state's waters. This requirement 
applies to such waters irrespective of the presence of point or 
nonpoint sources of pollution or pollutants. Moreover, as discussed 
earlier, even though Congress modified the language of section 21(b) to 
conform to the revised regulatory approach of the 1972 Act, it is clear 
from the legislative history that Congress intended new section 401 to 
be substantially the same as section 21(b) and not at all clear that 
Congress intended the restrictive reading of ``appropriate requirement 
of State law'' arguably suggested by use of that maxim.
    Congress provided states with the primary role in protecting the 
Nation's waters from pollution, including pollution from Federal 
projects, and the phrase ``water quality requirements'' should be 
interpreted broadly to preserve state authority and further the 
section's protective goal. See S.D. Warren, 547 U.S. at 386 (``State 
certifications under [section] 401 are essential in the scheme to 
preserve state authority to address the broad range of pollution . . . 
.'').
    The legislative history supports this interpretation. In earlier 
versions of section 401(d), Congress proposed to limit section 401(d) 
to the enumerated provisions from section 401(a)(1) and either ``any 
more stringent water quality requirements under State law provided in 
section 510 of [the Act],'' S. 2770, 92nd Cong. (1972), or ``any 
regulation under section 316 of this Act.'' H.R. 11896, 92nd Cong. 
(1972). Ultimately, neither of those formulations was adopted. Instead, 
consistent with Congress's objective to empower states to protect their 
waters from pollution, Congress ``expanded'' the scope of section 
401(d) ``to also require compliance with any other appropriate 
requirement of State law which is set forth in the certification.'' S. 
Rep. No. 92-1236, at 138 (1972) (Conf. Rep.).
    EPA recognizes that, as noted by the Court in PUD No. 1, the 
authority granted to certifying authorities in section 401(d) ``is not 
unbounded.'' 511 U.S. at 712. Rather, the scope is limited to 
``ensur[ing] that the project complies with `any applicable effluent 
limitations or other limitations under [33 U.S.C. 1311, 1312] or other 
provisions of the Act,['] `and with any other appropriate requirement 
of State law.''' Id. Although the Court declined ``to speculate on what 
additional state laws, if any, might be incorporated by this 
language,'' the Court found that ``at a minimum, limitations imposed 
pursuant to state water quality standards adopted pursuant to [section] 
303 are `appropriate' requirements of state law.'' Id. at 713. As 
discussed earlier in this section, EPA's longstanding position is that 
the scope of certification decisions and conditions are limited to 
water quality-related considerations. See also American Rivers, 129 
F.3d at 107 (``Section 401(d), reasonably read in light of its purpose, 
restricts conditions that states can impose to those affecting water 
quality in one manner or another.''). EPA's redefinition of the term 
``water quality requirements'' is not intended to alter this 
interpretation.
    The Agency does not, however, view the Act's focus on water 
quality-related considerations to mean that certifications and 
conditions may only be based on point source discharge provisions in 
either Federal or state law. As noted above, the legislative history on 
section 401 reveals that, although Congress contemplated a narrower 
interpretation of section 401(d) (e.g., limited to the enumerated 
provisions and CWA section 316 in the House

[[Page 35348]]

version), Congress ultimately codified an ``expanded'' scope of section 
401(d).
    In addition, EPA does not believe that the scope of a state's or 
tribe's certification review is limited only to water quality effects 
in bodies of water meeting the definition of ``navigable waters'' or 
``waters of the United States,'' or to water quality effects caused by 
point sources. There is nothing in the text of section 401 that compels 
either interpretation. Nor, as we said in the preamble to the 2020 
Rule, is EPA aware of any court decisions that have directly addressed 
the scope of waters covered by section 401. EPA acknowledges it 
articulated a different position on those issues in the 2020 Rule. 85 
FR 42234-35 (July 13, 2020). However, upon reconsideration, EPA 
believes there are good reasons for changing its position now.
    While the text of section 401(a)(1) says that the need for a 
certification is only triggered by a potential discharge into ``the 
navigable waters,'' it does not state that, once the need for 
certification is triggered, a certifying authority must confine its 
review to potential water quality impacts to such ``navigable waters.'' 
Indeed, while section 401(a)(1) says that the certifying authority must 
certify that ``any such discharge'' will comply with various provisions 
of the CWA, it does not limit the point of compliance for purposes of 
certifying authority review to the specific outfall point or to the 
waterbody (``navigable'' or not) into which the triggering discharge 
occurs. Unlike section 401(a)(1), which uses the term ``discharge'' 
four times and ``navigable waters'' twice, section 401(d) uses neither 
term. Instead, the focus of section 401(d) falls on the conduct of, and 
need to assure compliance by, ``the applicant'' and its licensed or 
permitted activities, rather than--as with section 401(a)(1)--on the 
nature and compliance of the ``discharge'' to ``navigable waters.'' 
Section 401(d) is thus arguably more expansive than section 401(a)(1), 
providing that the certification authority must assure that ``any 
applicant'' comply with the same provisions of the CWA, as well as 
``any other appropriate requirement of State law,'' and states may, 
under state law, protect state waters beyond those that are navigable. 
Again, there is no indication in the text or legislative history that 
Congress intended the scope of review under sections 401(a)(1) and (d) 
to assure such compliance be limited to ``navigable waters.'' Had 
Congress desired to create such a limited scope of review, it could 
easily have done so. It did not.
    This interpretation is reinforced by the fact that Congress 
intended section 401 to afford states broad power to protect their 
waters from harm caused by federally licensed or permitted projects. 
That intent is best realized by interpreting the scope of section 401 
review and conditions as applying to impacts to all potentially 
affected state waters, not just the state's ``navigable waters.'' Such 
an interpretation is also consistent with PUD No.1's affirmance of 
EPA's determination that the proper scope of review is potential water 
quality impacts from the ``activity as a whole.'' While the 
certification triggering discharge must itself be into a ``navigable 
water,'' water quality impacts from the larger ``project in general'' 
or the ``activity as a whole'' might well occur in state waters at some 
distance from the triggering discharge. There is nothing in the phrase 
``any other appropriate requirement of State law,'' or the nature of 
CWA section 303(c) water quality standards, that would compel an 
interpretation that these water quality requirements could only support 
certification review or conditions to prevent water quality impacts to 
the state's ``navigable waters'' or caused by ``point sources.'' 
Finally, an expansive interpretation of scope of review as applying to 
all potentially affected state waters is supported by CWA section 510, 
which--``[e]xcept as expressly provided''--preserves a state's 
authority and jurisdiction to protect its waters from pollution.
    In the preamble to the 2020 Rule, EPA acknowledged that CWA 
sections 402 and 404 apply only to point source discharges to waters of 
the United States. 85 FR 42234. EPA does not disagree with that 
proposition here. However, the Agency no longer believes that the point 
source focus of sections 402 and 404, or the fact that section 401 is 
located in the first section of Title IV of the CWA, titled Permits and 
Licenses, means that--once the need for a certification has been 
triggered by a point source discharge into a water of the United 
States--a state may not consider potential water quality effects in 
non-navigable waters caused by the activity as a whole. EPA disagrees 
with and finds unpersuasive the 2020 Rule preamble's attempt to 
conflate section 401 with sections 402 and 404 by saying that ``similar 
to the section 402 and 404 permit programs, section 401 is a core 
regulatory provision of the CWA.'' Id. While section 401 is certainly a 
critical element of the Act--indeed, it pre-dated the 1972 CWA 
amendments and was deemed so important that Congress carried it over--
section 401 is a direct congressional grant of authority for states to 
protect their water resources from impacts caused by federally licensed 
or permitted projects that is significantly different in character from 
the Act's other Federal ``regulatory'' provisions. As such, it is more 
reasonable to interpret section 401's scope broadly to effectuate that 
grant of authority, consistent with the reservation of state powers in 
section 510, rather than interpret section 401's scope as limited to 
consideration of point source discharges to or into waters of the 
United States like sections 402 and 404.
    In the preamble to the 2020 Rule, the Agency said that ``for many 
of the same reasons why the Agency is not interpreting the use of the 
word `applicant' in section 401(d) as broadening the scope of 
certification beyond the discharge itself, the Agency is also declining 
to interpret section 401(d) as broadening the scope of waters and the 
types of discharges to which the CWA federal regulatory programs 
apply.'' Id. at 42235. As an initial matter, the Agency is not 
espousing in this document an interpretation of the scope of section 
401 that in any way broadens the scope of basic Federal regulatory 
provisions like sections 402 and 404. Instead, the Agency is merely 
recognizing the fundamental difference between those Federal 
``regulatory'' sections, whose scope is textually limited to point 
source discharges to or into waters of the United States, and the grant 
of state authority in section 401, which is not so limited. Indeed, to 
flip the argument EPA made in 2020, the reasons we have articulated 
above in support of broadening the scope of certification beyond the 
discharge itself also support expanding its scope beyond a state's 
navigable waters. The fact that the Agency continues to agree with the 
Ninth Circuit's analysis and holding in Dombeck that section 401 
certification is not required for nonpoint source discharges does not 
compel a different interpretation with respect to these scope issues. 
Dombeck, 172 F.3d at 1098-99. Nor does EPA's interpretation of section 
401(d)'s term ``applicant'' as authorizing states to add certification 
conditions that might protect ``non-federal waters'' in any way broaden 
the scope of the Federal regulatory programs enacted by the 1972 CWA 
amendments, e.g., sections 402 and 404, beyond the limits that Congress 
intended. See 85 FR 42234-35. Section 401, although a neighbor to 
sections 402 and 404 in the CWA's organizational framework, is a 
fundamentally different provision and

[[Page 35349]]

need not be interpreted according to those other provisions' 
strictures.
    EPA is not offering an opinion in this rulemaking about what 
characteristics such a ``State law'' or ``Tribal law'' must have to 
qualify as an appropriately ``legal'' basis for certification review or 
conditions under sections 401(a)(1) or 401(d). In the spirit of 
cooperative federalism, EPA defers to the relevant state and tribe to 
define which of their state or tribal provisions qualify as appropriate 
``State laws'' or ``Tribal laws'' for purposes of implementing section 
401.
    EPA requests comment on this proposed definition of ``water quality 
requirements,'' EPA's basis for proposing it, and any other potential 
definitions of the term ``water quality requirements'' EPA should 
consider adopting in the final rule.

F. Certification Decisions

1. Decisions on a Request for Certification
    The CWA allows certifying authorities to make one of four decisions 
on a request for certification pursuant to their section 401 authority. 
A certifying authority may either grant certification, grant 
certification with conditions, deny certification, or it may expressly 
waive certification. A certifying authority may also constructively 
waive certification by failing or refusing to act in the reasonable 
period of time. This section briefly discusses each of the four 
decisions a certifying authority may make, including what each decision 
means and its impact on the Federal licensing or permitting process. 
This proposed interpretation of the four decisions a certifying 
authority may make is consistent with the Agency's interpretation in 
the 1971 and 2020 Rules.
    First, a certifying authority may grant certification. A grant of 
certification means that the certifying authority has determined that 
the federally licensed or permitted activity as a whole will comply 
with water quality requirements. See section V.E in this preamble for 
further discussion of the scope of certification and the term ``water 
quality requirements.'' Granting certification means that the license 
or permit may be issued. See 33 U.S.C. 1341(a)(1). Section 401(a)(1) 
provides that in circumstances where there are no applicable water 
quality requirements for an activity, the certifying authority ``shall 
so certify.'' Id. EPA is proposing minor revisions to the regulatory 
language currently located at Sec.  121.7(f) that describes this 
scenario, with minor edits to reflect the proposed scope of 
certification.
    Second, a certifying authority may grant certification with 
conditions. A grant of certification with conditions means that the 
certifying authority has determined that the federally licensed or 
permitted activity as a whole will comply with water quality 
requirements, but only if certain conditions are met. Section 401(d) 
provides that any certification condition shall become a condition on 
the Federal license or permit. Id. at 1341(d) (``Any certification 
provided under this section shall set forth any effluent limitations 
and other limitations, and monitoring requirements necessary to assure 
that any applicant for a Federal license or permit will comply with 
[sections 301, 302, 306, and 307], and with any other appropriate 
requirement of State law set forth in such certification, and shall 
become a condition on any Federal license or permit . . . .). As 
discussed later in section V.G in this preamble, circuit courts have 
routinely held that Federal agencies may not question or criticize a 
state's water quality conditions. See, e.g., American Rivers, 129 F.3d 
at 107 (``[Section 401(d)] is unequivocal, leaving little room for FERC 
to argue that it has authority to reject state conditions it finds to 
be ultra vires.''). Granting certification with conditions means the 
Federal license or permit may be issued, provided the conditions are 
incorporated into that license or permit. The 2020 Rule includes 
regulatory text on the incorporation of certification conditions into a 
license or permit. See 40 CFR 121.10. The Agency is not proposing to 
retain any regulatory text on the incorporation of certification 
conditions. First, the 2020 Rule limits incorporation of certification 
conditions to only those that satisfy the content requirements at Sec.  
121.7(d). Section 401(d) clearly requires all certification conditions 
to become conditions on a Federal license or permit and does not limit 
incorporation to only those conditions that include certain regulatory 
defined components. As discussed in section V.G in this preamble, EPA 
does not interpret the statute as allowing a Federal agency to review 
whether a certifying authority included certain regulatorily defined 
elements in its certification decisions, nor question certifying 
authority conditions. Second, while the 2020 Rule requires Federal 
agencies to clearly identify certification conditions in their Federal 
license or permit, section 401 does not require Federal agencies to 
distinguish certification conditions from other condition in their 
licenses or permits. If the Federal agency finds it useful to 
distinguish certification conditions for implementation purposes, the 
Federal agency may structure its license or permit in such a manner, 
but EPA does not find it necessary for the Agency to require such a 
distinction.
    Third, a certifying authority may deny certification. A denial 
means that the certifying authority is not able to certify that the 
activity as a whole will comply with water quality requirements. If a 
certifying authority denies certification, the license or permit cannot 
be issued. 33 U.S.C. 1341(a)(1). The 2020 Rule includes regulatory text 
that discusses the effects of a denial of certification. See 40 CFR 
121.8. The Agency is not proposing to retain any regulatory text that 
speaks to the effects of a denial of certification. First, the 2020 
Rule provides that a certification denial does not preclude a project 
proponent from a submitting a new certification request. Section 
401(a)(1) provides that a license or permit may not be granted if 
certification is denied, but it does not speak to new certification 
submittals following a denial. EPA does not find it necessary to add 
any additional direction or process for certification denials, beyond 
defining the contents of a certification denial (as discussed below). 
If a project proponent disagrees with a certifying authority's denial, 
the project proponent may challenge the certifying authority's decision 
in the appropriate court of jurisdiction. See S. Rep. 92-414 at 69 
(1971) (``Should such an affirmative denial occur no license or permit 
could be issued by such Federal agencies . . . unless the State action 
was overturned in the appropriate courts of jurisdiction.''). The 2020 
Rule also provides that a Federal license or permit may not be issued 
if a certifying authority denies certification in the manner prescribed 
by the 2020 Rule (i.e., contains the contents defined at Sec.  
121.7(e)). As discussed in section V.G in this preamble, Federal agency 
review does not permit a Federal agency to review whether a certifying 
authority included certain regulatorily defined elements in its 
certification decisions. Accordingly, it is unnecessary to provide the 
Federal agency with the role of confirming that a denial is sufficient 
in the regulatory text.
    Fourth, a certifying authority may expressly waive certification. 
The statute explicitly provides for a constructive waiver if the 
certifying authority fails or refuses to act on a request for 
certification within the reasonable period of time. The statute does 
not expressly state that a certifying

[[Page 35350]]

authority may expressly waive certification. However, EPA has 
determined that providing this opportunity in the proposed rulemaking 
is consistent with a certifying authority's ability to waive through 
failure or refusal to act. See EDF v. Alexander, 501 F. Supp. 742, 771 
(N.D. Miss. 1980) (``We do not interpret [the Act] to mean that 
affirmative waivers are not allowed. Such a construction would be 
illogical and inconsistent with the purpose of this legislation.''). 
This interpretation is also consistent with the Agency's longstanding 
interpretation of the waiver provision. See 40 CFR 121.9(a)(1) 
(allowing a certifying authority to expressly waive certification via 
written notification); 40 CFR 121.16(a) (2019) (same). Additionally, 
continuing to allow express waivers may create efficiencies where the 
certifying authority knows early in the process that it will waive. An 
express waiver does not mean that the certifying authority has 
determined that the activity will comply with water quality 
requirements. Instead, an express waiver indicates only that the 
certifying authority has chosen not to act on a request for 
certification. Consistent with the statutory text, an express waiver 
enables the Federal agency to issue a license or permit.
2. Defining What It Means ``To Act on a Request for Certification''
    Once a certifying authority receives a request, the certifying 
authority must ``act on a request for certification, within a 
reasonable period of time (which shall not exceed one year) after 
receipt of such request.'' 33 U.S.C. 1341(a)(1). The phrase ``to act on 
a request for certification'' is not defined in the statute; nor did 
EPA define it in the 1971 or 2020 Rules. To provide greater clarity 
regarding how a certifying authority ``act[s] on a request for 
certification'' within the reasonable period of time, EPA is proposing 
to define the phrase ``to act on a request for certification'' to mean 
that a certifying authority is making one of the four certification 
decisions discussed above: granting certification, granting 
certification with conditions, denying certification, or expressly 
waiving certification.
    In pre-proposal feedback, a few stakeholders asked the Agency to 
provide additional clarification regarding what it means to ``act on a 
request for certification.'' For example, would decisions beyond the 
four just discussed qualify as acting (e.g., would a certifying 
authority ``act on a request for certification'' if it requested that 
the project proponent withdraw and resubmit its certification request)? 
Specifically, states and tribes expressed concern about their ability 
to make one of the four above-described decisions on a request for 
certification within the reasonable period of time, especially for 
larger, more complex projects. Recent case law has also highlighted the 
need to clarify this issue, particularly in instances where a 
certifying authority does not wish to waive certification. The D.C. 
Circuit has further suggested that acting on a request for 
certification does not include participating in a coordinated 
withdrawal and resubmission ``scheme.'' See Hoopa Valley Tribe, 913 
F.3d at 1101-02.\46\ The Fourth Circuit recently held that it was 
permissible for the project proponent to withdraw its application in 
order to avoid a certification denial as long as the certifying 
authority and project proponent were not in a ``coordinated withdrawal 
and resubmission scheme.'' NCDEQ, 3 F.4th at 672, 676. However, the 
court also suggested that the section 401 phrase ``to act'' could be 
interpreted to mean something different than a final agency action on a 
request for certification. According to the court, a certifying 
authority that ``takes significant and meaningful action'' and ``in 
good faith takes timely action to review and process a certification 
request likely would not lose its authority to ensure that federally 
licensed projects comply with the State's water-quality standards, even 
if it takes the State longer than a year to make its final 
certification decision'' Id. at 670.
---------------------------------------------------------------------------

    \46\ The D.C. Circuit held that California and Oregon had waived 
their section 401 authority by allowing the project applicant to 
repeatedly withdraw and resubmit the same certification request to 
avoid exceeding the reasonable period of time deadline. 913 F.3d at 
1101. The D.C. Circuit also found that FERC's interpretation of 
``act on a request'' as allowing the states to ``indefinitely 
delay'' its review was arbitrary and capricious and not within the 
bounds of its authority under section 401. Id. at 1102.
---------------------------------------------------------------------------

    Some stakeholders have expressed concern with the NCDEQ approach, 
noting that it may make the section 401 certification process less 
predictable and transparent. EPA shares those concerns. The Agency is 
concerned that interpreting ``to act on a request for certification'' 
as any ``significant and meaningful action'' might inject significant 
uncertainty and subjectivity into the certification process (e.g., what 
is a ``significant and meaningful action?'') causing significant 
confusion for stakeholders.
    Although the Agency has never explicitly defined ``to act on a 
request for certification,'' prior Agency guidance and the 2020 Rule 
preamble took the position that certifying authorities must make a 
decision on a request for certification within the reasonable period of 
time. For instance, in the 2010 Handbook, EPA stated that to avoid 
constructively waiving certification, the certifying authority should 
``verify the time available for [its] certification decision.'' \47\ 
One implication of this language is that the Agency thought that ``to 
act on a request for certification'' means to make a final decision on 
the request (i.e., grant, grant with conditions, deny, or expressly 
waive certification). Courts appear to agree. See, e.g., Alcoa Power 
Generating, Inc. v. FERC, 643 F.3d 963, 972 (D.C. Cir. 2011) (noting 
that ``[i]n imposing a one-year time limit on States to `act,' Congress 
plainly intended to limit the amount of time that a State could delay a 
federal licensing proceeding without making a decision on the 
certification request''); NYDEC, 884 F.3d at 455-56 (noting that a 
state must act after receiving a certification request and that denial 
``would constitute `acting' on the request under the language of 
Section 401'').
---------------------------------------------------------------------------

    \47\ See 2010 Handbook, at 11 (rescinded).
---------------------------------------------------------------------------

    Based on stakeholder feedback and recent court cases suggesting 
ambiguity with respect to what it means for a certifying authority to 
act, EPA is proposing to clarify that the phrase ``to act on a request 
for certification'' means that a certifying authority makes one of the 
four above-described certification decisions: grant, grant with 
conditions, deny, or expressly waive. In light of the case law and 
EPA's prior statements and practice, EPA thinks this is the most 
reasonable interpretation of what it means for a certifying authority 
``to act on a request for certification.'' It also provides 
stakeholders with a clear and predictable endpoint for knowing when the 
certifying authority has failed or refused to act, resulting in a 
waiver. See 33 U.S.C. 1341(a)(1) (``If the State . . . fails or refuses 
to act on a request for certification, within a reasonable period of 
time (which shall not exceed one year) after receipt of such request, 
the certification requirements of this subsection shall be waived with 
respect to such Federal application.''). The Agency is requesting 
comment on the proposed interpretation of what it means to act on a 
request for certification, as well as any alternative interpretations 
(e.g., NCDEQ approach).
3. Failing or Refusing To Act on a Request for Certification
    The Agency is also proposing to clarify what it means for a 
certifying authority to fail or refuse to act on a

[[Page 35351]]

request for certification. As discussed above, the Agency is proposing 
to define ``act on a request for certification'' as the certifying 
authority making one of four certification decisions: grant, grant with 
conditions, deny, or expressly waive. If the certifying authority fails 
to take one of these actions, the certification may be treated as a 
constructive waiver. Consistent with the statutory text, when a 
certifying authority waives the requirement for a certification, the 
Federal agency may proceed to issue the license or permit. 33 U.S.C. 
1341(a)(1).
    The plain language of section 401(a)(1) provides that the 
certification requirement is waived if a certifying authority ``fails 
or refuses to act on a request for certification, within a reasonable 
period of time (which shall not exceed one year).'' Id. Section 
401(a)(1) clearly indicates Congress's intent to limit constructive 
waivers to situations where a certifying authority did not act. See id. 
(``No license or permit shall be granted until the certification 
required by this section has been obtained or has been waived as 
provided in the preceding sentence.''). The legislative history of this 
provision suggests that constructive waivers were intended to prevent 
delays in the Federal licensing or permitting process due to the 
certifying authority's inactivity. See H. Rep. No 92-911, at 122 (1972) 
(``In order to insure that sheer inactivity by the State, interstate 
agency or Administrator as the case may be, will not frustrate the 
Federal application, a requirement, that if within a reasonable period, 
which cannot exceed 1 year, after it has received a request to certify 
the State, interstate agency, or Administrator, as the case may be, 
fails or refuses to act on the request for certification, then the 
certification requirement is waived.''). Similarly, the 1971 Rule and 
subsequent Agency guidance recognized that constructive waivers could 
occur due to certifying authority inaction. See 40 CFR 121.16(b) (2019) 
(noting that constructive waivers occurred upon the ``failure of the 
State . . . concerned to act on such a request for certification within 
a reasonable period of time after receipt of such request''); 2010 
Handbook, at 11 (rescinded) (``State and tribes are authorized to waive 
[section] 401 certification . . . by the certification agency not 
taking action.'').
    The 2020 Rule's interpretation of what it means for a certifying 
authority to fail or refuse to act departs from the longstanding Agency 
position on constructive waivers. The 2020 Rule allows a Federal agency 
to determine that a certifying authority had failed or refused to act, 
and thereby waived certification, where the certifying authority's 
action on a request for certification was procedurally deficient (e.g., 
did not follow the 2020 Rule's procedural requirements for a denial of 
certification). 40 CFR 121.9(a)(2); 85 FR 42266. Similarly, a Federal 
agency can determine that a certification condition is waived if the 
condition does not comply with procedural requirements of the 2020 
Rule. Id. at 42250. This aspect of the 2020 Rule drew considerable pre-
proposal input from certifying authorities who argued that this 
interpretation could result in a Federal agency ``veto'' of a section 
401 certification, and was contrary to the statute and the legislative 
history. EPA similarly expressed concern in its Federal Register notice 
announcing its intent to revise the 2020 Rule, noting that ``a federal 
agency's review may result in a state or tribe's certification or 
conditions being permanently waived as a result of non-substantive and 
easily fixed procedural concerns identified by the federal agency.'' 86 
FR 29543 (June 2, 2021).
    The 2020 Rule's interpretation of waiver is not consistent with the 
plain language of the statute and its legislative history. The mere 
failure of a certifying authority to include certain regulatorily 
defined elements in its certification decisions or comply with other 
procedural requirements of section 401, such as providing public notice 
on a request for certification, do not qualify as the kind of ``sheer 
inactivity'' that Congress contemplated would result in a constructive 
waiver. Consistent with the statutory language, legislative history, 
and prior Agency interpretation, EPA is proposing to revise the 
regulatory text to clarify that constructive waivers may only occur if 
a certifying authority fails or refuses to take one of the four actions 
described in this section within the reasonable period of time.
4. Contents of a Certification Decision
    To provide further clarity on how a certifying authority may ``act 
on a request for certification,'' EPA is also proposing to define the 
contents of a certification decision. Accordingly, EPA is proposing to 
remove the regulatory text currently located at Sec.  121.7(b), which 
characterizes what actions a certifying authority may take based on its 
evaluation of the request for certification. The regulatory text 
proposed at Sec.  121.7(c)-(f) sufficiently defines the contents of 
each certification decision and identifies the actions a certifying 
authority may take based on its evaluation of the request for 
certification such that EPA believes it would be redundant to retain 
separate regulatory text restating the same ideas.
    While the statute provides that certifying authorities may make one 
of four decisions when processing a certification request, the CWA does 
not explicitly describe the contents or elements of a certification 
decision. EPA's 1971 Rule defined the contents of a certification and 
express waiver decision for all certifying authorities. The 1971 Rule's 
enumeration of the contents of a certification decision were simple but 
effective and included the name and address of the applicant, a 
statement that the certifying authority examined the application, a 
statement that ``there is a reasonable assurance that the activity will 
be conducted in a manner which will not violate applicable water 
quality standards,'' and other information deemed appropriate by the 
certifying authority. 40 CFR 121.2(a) (2019). In addition, the 1971 
Rule provided that a certification could be waived upon either (1) 
written notification from the certifying authority that it expressly 
waived its authority to act on a request, or (2) written notification 
from the licensing or permitting agency regarding the failure of the 
certifying authority to act on a request for certification within the 
reasonable period of time. 40 CFR 121.16 (2019). The 1971 Rule did not 
define the contents of a certification denial or provide specific 
requirements for how to articulate and incorporate a certification 
condition.
    In the 2020 Rule, EPA updated those requirements for each type of 
certification decision and more fully addressed the effects of those 
decisions. First, it provides that, when a certifying authority granted 
certification under the 2020 Rule, the certification must be in writing 
and include a written statement that the discharge from the proposed 
federally licensed or permitted project would comply with water quality 
requirements. 40 CFR 121.7(c); 85 FR 42286.
    Second, when a certifying authority grants certification with 
conditions, the 2020 Rule requires that the certifying authority 
explain the necessity of each condition and provide a citation to an 
applicable Federal, state, or tribal law. 40 CFR 121.7(d); 85 FR 42286. 
This was a change from the 1971 Rule, which broadly provided for 
certifying authorities to include conditions as they ``deem[ed] 
necessary or desirable.'' 40 CFR 121.2(a)(4) (2019). The 2020 Rule 
preamble stated that the new requirements were ``intended to increase 
transparency and ensure that any limitation or requirement added to a 
certification . . . is within the scope

[[Page 35352]]

of certification.'' 85 FR 42256. Additionally, EPA observes that this 
provision is similar to EPA's NPDES program-specific section 401 
regulations. See 40 CFR 124.53(e)(2) (requiring a citation for any 
conditions more stringent than those in the draft permit).
    Third, unlike the 1971 Rule, under which certification denials were 
undefined, the 2020 Rule defines the contents of a denial. 
Specifically, the 2020 Rule requires certification denials to be made 
in writing and to identify any water quality requirements with which 
the discharge will not comply, include a statement explaining why the 
discharge would not comply with those requirements, and provide any 
specific water quality data or information that would help explain a 
denial based on insufficient information. 40 CFR 121.7(e); 85 FR 42286.
    Fourth, the 2020 Rule includes similar language to the 1971 Rule 
for express waivers and required written notification from the 
certifying authority indicating an express waiver of its authority to 
act on a request for certification. 40 CFR 121.9(a)(1); 85 FR 42286 
(July 13, 2020). Lastly, under the 2020 Rule, EPA defined constructive 
waiver as a certifying authority's ``failure or refusal to act on a 
certification request'' which included failing or refusing to (1) act 
within the reasonable period of time, (2) satisfy the requirements for 
a grant or denial of certification, or (3) comply with other procedural 
requirements of section 401 (e.g., provide public notice on a 
certification request). 40 CFR 121.9(a)(2); 85 FR 42286. The 2020 Rule 
also provided that waivers could occur if the certifying authority 
failed or refused to satisfy the requirements of any certification 
conditions. 40 CFR 121.9(b); 85 FR 42286. See section V.G in this 
preamble for further discussion on constructive waivers and the role of 
Federal agencies.
    The stated purpose of the 2020 Rule requirements was to promote 
transparency and consistency in certification decisions and to help 
streamline the Federal licensing and permitting processes. 85 FR 42220 
(July 13, 2020). However, in pre-proposal input, several certifying 
authorities said that the 2020 Rule's requirements for the contents of 
certification decisions delayed rather than streamlined the 
certification process. Conversely, in pre-proposal outreach, project 
proponents expressed interest in keeping the 2020 Rule requirements for 
the added transparency and argued that it is helpful when certifying 
authorities explain their final certification decisions (especially 
denials). Project proponents have also argued that certifying 
authorities benefit from including this additional information in their 
certification decisions because it helps build complete and legally 
defensible administrative records to support their certification 
actions.
    Under this proposed approach, similar to the approach taken in the 
2020 Rule, EPA is proposing revisions to the regulatory text currently 
located at Sec.  121.7(a) to clarify that all certification decisions 
should: be in writing; clearly state whether the certifying authority 
has chosen to grant, grant with conditions, deny, or expressly waive 
certification; be within the scope of certification, as defined at 
proposed Sec.  121.3; and be taken within the reasonable period of 
time, as determined pursuant to proposed Sec.  121.6.
    Like the approach taken in the 1971 and 2020 Rules, EPA is 
proposing to include some requirements for each of the four types of 
certification decisions. This approach addresses both the workload 
concerns expressed by certifying authorities, and the desire of project 
proponents for increased transparency and consistency in the 
certification process. The list of elements required for each 
certification decision will provide predictability and still allow 
certifying authorities the flexibility to add additional elements of 
their own under state or tribal law. EPA does not anticipate that this 
proposed approach will be controversial because it is generally 
consistent with the approach taken in the 1971 Rule and 2020 Rule.
    Consistent with the position taken in the 2020 Rule, the Agency has 
opted to retain contents of a certification decision consistent with 
the 1972 statutory language. Unlike the 2020 Rule, the 1971 Rule 
included language that reflected the predecessor statute. For example, 
the 1971 Rule required certifications to include a ``statement that 
there is a reasonable assurance that the activity will be conducted in 
a manner which will not violate applicable water quality standards.'' 
40 CFR 121.2(3) (2019). As discussed in section IV.A in this preamble, 
the 1972 CWA revised the predecessor version of section 401 to reflect 
the changed emphasis from complying with ``water quality standards'' to 
complying with ``the applicable provisions of sections 301, 302, 303, 
306, and 307'' of the CWA. 33 U.S.C. 1341(a)(1). Additionally, Congress 
added section 401(d) that requires a certifying authority to include 
``any effluent limitations and other limitations, and monitoring 
requirements necessary to assure that any applicant for a Federal 
license or permit will comply'' with the enumerated provisions of the 
CWA and any other appropriate requirement of state law. Id. at 1341(d). 
Consistent with this change, the Agency is proposing to retain a 
similar provision as the 2020 Rule that certification decisions to 
grant, grant with conditions, or deny certification must indicate 
whether the certifying authority has determined that an activity will 
comply with the water quality requirements identified in the 1972 CWA, 
not just water quality standards. Additionally, consistent with the 
proposal's scope of certification, EPA is proposing that certification 
decisions must indicate whether the activity as a whole, as opposed to 
the discharge, will comply with water quality requirements. See section 
E of this proposal for further discussion on the scope of 
certification.
    Similar to the Agency's position in the 2020 Rule, the Agency does 
not think that retaining the 1972 statutory language ``will comply'' in 
the proposed regulations requires certifying authorities to provide 
absolute certainty that applicants for a Federal license or permit will 
never violate water quality requirements. See 85 FR 42278 (July 13, 
2020). This is not EPA's intention, and EPA does not think such a 
stringent interpretation is required by the statutory or proposed 
regulatory language. The use of language comparable to ``will comply'' 
is not uncommon in CWA regulatory programs. For example, CWA section 
402 contemplates that NPDES permits will only be issued upon a showing 
that discharge ``will meet'' various enumerated provisions of the CWA. 
33 U.S.C. 1342(a). This standard has not precluded states, tribes, or 
EPA from routinely issuing NPDES permits to allow pollutant discharges.
    Nor does EPA expect that the use of ``will comply'' will impede or 
limit a certifying authority's ability to act on a request for 
certification. Additionally, the Agency does not think that this 
proposed language prevents certifying authorities from relying on 
modeling information, which provides an informed projection of 
potential impacts, to make a certification decision. When a certifying 
authority makes a certification decision, EPA believes that the 
certifying authority would be certifying that the ``activity as a 
whole'' will comply with water quality requirements for the life of the 
license or permit and not just at the moment the license or permit is 
issued. The lifespan of FERC licenses can be decades, whereas section 
402 or 404

[[Page 35353]]

permits last five years. Given the possible lifespan of a license or 
permit, and the possibility that water quality-related changes or 
impacts may occur due to climate change or other factors during that 
time, it is reasonable (and perhaps essential in some cases) for 
certifying authorities to rely on modeling to inform certification 
decisions. EPA does not intend or expect the use of the term ``will 
comply'' to limit or impact a certifying authority's ability to rely on 
such modeling to support its certification decisions.
    Since EPA is defining ``to act on a request for certification'' as 
making one of four certification decisions, it is reasonable for EPA to 
identify a non-exhaustive list of contents for each of those 
certification decisions. Under EPA's proposal, certifying authorities 
would be free to add additional elements or information requirements to 
any of these four certification decisions to provide stakeholders with 
clarity and transparency. For example, a certifying authority may 
choose to require a citation to applicable Federal or state water 
quality requirements to support a certification condition. For its 
part, EPA is not proposing to include this additional requirement as a 
Federal regulatory element as it did in the 2020 Rule.
    The following paragraphs describe the Federal requirements EPA is 
proposing to adopt for each of the four kinds of certification 
decisions. Under this proposal, each of the four kinds of certification 
decisions must be in writing and include the name and address of the 
project proponent and identification of the applicable Federal license 
or permit. Additionally, each of the four kinds of certification 
decisions includes other requirements.
    First, any grant of certification shall include a written statement 
that the federally licensed or permitted activity as a whole ``will 
comply'' with water quality requirements. While the 1971 Rule required 
a statement that there was ``reasonable assurance,'' 40 CFR 121.2(a) 
(2019), as explained above, the 2020 Rule uses the term ``will comply'' 
which is more consistent with the 1972 statutory language used in 
sections 401(a)(1) and 401(d).
    Second, EPA is proposing that any grant of certification with 
conditions shall (1) identify any conditions necessary to assure that 
the activity as a whole will comply with water quality requirements and 
(2) include a statement explaining why each condition is necessary to 
assure that the activity as a whole will comply with water quality 
requirements. This proposal reflects the language used in section 
401(d) and is similar to the approach taken under the 1971 and 2020 
Rules. A statement explaining why a condition is necessary will help 
project proponents and Federal agencies understand the reason for the 
condition and assist in its implementation. EPA anticipates that such 
information is readily available to the certifying authority as part of 
its decision-making process. However, unlike the 2020 Rule, the Agency 
is not proposing to require certifying authorities to include a 
specific statutory or regulatory citation in support of a certification 
condition. Rather, the Agency will let certifying authorities decide 
what relevant information to provide in support of any conditions. 
Additionally, EPA is not proposing to distinguish between certification 
decisions based on an individual or a general license or permit. 
Although EPA made such a distinction in the 2020 Rule, EPA finds it 
unnecessary here because the few relevant proposed regulatory 
requirements apply to a certification with conditions regardless of the 
nature of the license or permit. EPA is proposing limited regulatory 
requirements in this area, anticipating that certifying authorities 
will work with project proponents and Federal agencies to determine 
what information would be most useful (e.g., statutory or regulatory 
citations).
    Consistent with this approach, EPA recognizes that certification 
conditions are an important tool that enable certifying authorities to 
ensure that projects needing Federal licenses or permits will be able 
to move forward without adverse impacts to water quality. EPA 
encourages certifying authorities to develop certification conditions 
in a way that enables projects to adapt to future water quality-related 
changes, i.e., so-called ``adaptive management conditions.'' For 
example, if a certifying authority is concerned about future 
downstream, climate change-related impacts on aquatic species due to 
increased reservoir temperatures during the lifespan of a hydropower 
dam license, the certifying authority might develop a condition that 
would allow a project proponent to take subsequent, remedial action in 
response to reservoir temperature increases (e.g., conditions that 
might require, as necessary, a change in reservoir withdrawal location 
in the water column, a change in the timing of releases, etc.). To 
ensure project proponents and Federal agencies understand and are able 
to implement any such adaptive management conditions, EPA recommends 
that certifying authorities clearly define and explain the basis for 
these conditions and the circumstances in which adaptive management 
conditions may spring into effect (e.g., expectations for undertaking 
additional planning and monitoring; thresholds triggering adaptive 
responses; requirements for ongoing compliance). EPA has previously 
acknowledged the use of ``adaptive management'' conditions in prior 
guidance, see, e.g., 2010 Handbook, at 32, and will explore the 
development of other guidance on this topic in the future. EPA requests 
comment on whether it should define in more detail--as it did in the 
2020 Rule--what information should be included in support of a 
certification condition and examples of such information (e.g., 
statutory and regulatory citations).
    Third, EPA is proposing that any denial of certification shall 
include a statement explaining why the certifying authority cannot 
certify that the proposed activity as a whole will comply with water 
quality requirements. Although the 1971 Rule did not define the 
elements of a decision to deny certification, this concept was 
introduced in the 2020 Rule. The proposed requirements for a denial of 
certification are similar to the requirements in the 2020 Rule. 
However, the Agency is not proposing to retain the 2020 Rule 
requirements to identify the specific water quality requirements with 
which the project will not comply nor require the certifying authority 
to describe the missing data or information that would be necessary in 
instances where the denial is due to insufficient information. See 40 
CFR 121.7(e). Rather, EPA's few relevant regulatory requirements 
anticipate that certifying authorities will work with project 
proponents and Federal agencies to determine what information would be 
most useful. Additionally, EPA is not proposing to distinguish between 
certification decisions based on an individual or a general license or 
permit. Although EPA took this approach in the 2020 Rule, EPA finds 
that the few relevant proposed regulatory requirements apply to a 
denial of certification regardless of the nature of the license or 
permit. EPA does not expect this to be a burdensome requirement for 
certifying authorities. As a practical matter, certifying authorities 
will likely already have developed and considered such information as 
part of their decision-making process and included it in the record to 
substantiate their decision.

[[Page 35354]]

Aside from borrowing from their decision-making record, EPA expects 
that certifying authorities may be able to satisfy this requirement in 
a number of ways. For example, certifying authorities could identify 
specific water quality requirements with which the activity as a whole 
will not comply, or identify what information about the project or 
potential water quality effects is missing or incomplete that led the 
certifying authority to not be able to determine whether the activity 
as a whole will comply with water quality requirements. This proposal 
to provide at least a succinct explanation for the certification denial 
will provide necessary transparency and clarity for project proponents 
and Federal agencies.
    Lastly, consistent with the 1971 Rule and 2020 Rule, EPA is 
proposing that any express waiver made by a certifying authority shall 
include a statement from the certifying authority stating that it 
expressly waives its authority to act on a request for certification. 
As noted above, an express waiver indicates only that the certifying 
authority has chosen not to act on a request for section 401 
certification. Accordingly, the certifying authority only needs to 
state that it is waiving certification and does not need to make any 
statement about why it has decided to waive or its assessment of the 
project's impact on its water quality.
    EPA is also proposing to delete 40 CFR 124.53(e), which addresses 
the contents of a certification for an EPA-issued NPDES permit. The 
contents identified at Sec.  124.53(e) are not consistent with the 
contents identified at proposed Sec.  121.7(c) and (d). For example, 
Sec.  124.53(e) requires a citation (but not an explanation) for each 
condition of certification, whereas proposed Sec.  121.7(d) requires an 
explanation (but not a citation) for each condition. Further, Sec.  
124.53(e)(1) and proposed Sec.  121.7(d)(2)--both of which identify 
what conditions must be included in a certification--are distinct. 
Proposed Sec.  121.7(d)(2) incorporates the proposal's concepts of 
``the activity as a whole'' and ``water quality requirements'' while 
Sec.  124.53(e)(1) does not. EPA intends for all certification 
decisions, including those on EPA-issued NPDES permits, to comply with 
the requirements discussed above and proposed at Sec.  121.7.
    EPA is requesting comment on the proposed approach described above, 
including whether the Agency should include additional or alternative 
requirements for certification actions. The Agency is also requesting 
comment on an alternative approach that would only require a limited 
list of contents for certification decisions when EPA acts as a 
certifying authority. This alternative approach would not delineate any 
specific requirements for certification decisions made by any other 
certifying authority.

G. Federal Agency Review

    The proposed rule confirms the Agency's longstanding position prior 
to the 2020 Rule that Federal agencies may review a certification 
decision only for the limited purpose of ensuring that the decision 
meets a handful of facial statutory requirements. Specifically, EPA is 
proposing that Federal agencies may review a certifying authority's 
certification decision to determine (1) whether the decision clearly 
indicates the nature of the decision (i.e., is it a grant, grant with 
conditions, denial, or express waiver), (2) whether the proper 
certifying authority issued the decision, (3) whether public notice was 
provided, and (4) whether the decision was issued within the reasonable 
period of time. As discussed below, the Agency views this Federal 
agency review role as consistent with Agency practice prior to the 2020 
Rule and case law.
    Section 401 does not expressly provide a defined role for Federal 
licensing or permitting agencies to review certifications or change 
certification conditions. However, the Agency has long recognized, both 
in regulation and guidance, some degree of appropriate Federal agency 
review of certification decisions. The 1971 Rule provides Federal 
agencies with the ability to determine whether a certifying authority 
acted within the reasonable period of time. See 40 CFR 121.16(b) (2019) 
(``The certification requirement with respect to an application for a 
license or permit shall be waived upon . . . Written notification from 
the licensing or permitting agency to the Regional Administrator of the 
failure of the State or interstate agency concerned to act on such 
request for certification within a reasonable period of time after 
receipt of such request . . . .''). Prior EPA guidance acknowledged 
that the Federal licensing or permitting agency may review the 
procedural requirements of a certification decision. 2010 Handbook, at 
32 (rescinded) (citing American Rivers, 129 F.3d at 110-111; City of 
Tacoma v. FERC, 460 F.3d 53, 68 (D.C. Cir. 2006)) (``For example, the 
federal permitting or licensing authority may review the procedural 
requirements of [section] 401 certification, including whether the 
proper state or tribe has certified, whether the state or tribe 
complied with applicable public notice requirements, and whether the 
certification decision was timely.''). However, this guidance also 
acknowledged the limitations of Federal agency review and stated that 
Federal agencies cannot pick and choose among a certifying authority's 
certification conditions. Id. at 10 (citing American Rivers, 129 F.3d 
at 110-111).
    Prior Agency guidance relied heavily on case law addressing the 
question of Federal agency review. A few courts have acknowledged a 
limited role for Federal agencies to ensure that a certifying authority 
meets certain facial requirements of section 401. The D.C. Circuit has 
held that section 401(a)(1) authorized FERC, as the relevant Federal 
licensing agency, ``to determine that the specific certification 
`required by [section 401 has] been obtained,''' because otherwise, 
``without that certification, FERC lack[ed] authority to issue a 
license.'' City of Tacoma, 460 F.3d at 67-68 (``If the question [raised 
to FERC] regarding the state's section 401 certification is not the 
application of state water quality standards but compliance with the 
terms of section 401, then FERC must address it.''). The court did not 
define what a ``certification required by this section'' included, but 
suggested it included at a minimum, ``explicit requirement[s] of 
section 401,'' including that the certifying authority provide public 
notice, which was the section 401 requirement at issue in the case 
before the court. Id. at 68. It is important to note that, while the 
court found that FERC had an obligation under the facts of that case to 
confirm the public notice requirement was satisfied, the court did not 
frame this requirement as a prerequisite in every instance where the 
agency is presented with a certification decision. Rather, the court 
found that FERC had to confirm compliance in the case before it because 
public notice had been ``called into question.'' See id.
    In an earlier case, the Second Circuit ruled that FERC did not have 
authority to substantively review certification conditions to ``decide 
which conditions are within the confines of [section] 401(d) and which 
are not.'' American Rivers, 129 F.3d at 107. In reaching this 
conclusion, the court noted that FERC nonetheless did have authority to 
determine whether the appropriate certifying authority issued the 
certification decision and whether the certification decision was 
issued within the reasonable period of time. The court explained that, 
``[w]hile [FERC] may determine whether the proper state has issued the 
certification or whether a state has issued a certification within the 
prescribed period, [FERC] does not possess a roving mandate to decide 
that substantive aspects of state-imposed

[[Page 35355]]

conditions are inconsistent with the terms of [section] 401.'' Id. at 
110-11.
    Under the 2020 Rule, the Federal agency may review a certification 
to confirm that a number of certification requirements are met as a 
prerequisite to accepting the certification decision. 85 FR 42267. 
Specifically, the 2020 Rule relies on City of Tacoma to assert that the 
plain language of section 401 requires Federal licensing or permitting 
agencies ``to confirm that the state has facially satisfied the express 
requirements of section 401.'' 85 FR 42267-68 (quoting City of Tacoma, 
460 F.3d at 68). The 2020 Rule requires the Federal licensing agency to 
ensure (1) compliance with ``other procedural requirements of section 
401'' (which included public notice requirements), (2) compliance with 
the reasonable period of time, and (3) compliance with the rule's 
requirements related to providing a legal and technical basis within 
the certification document for the action taken. The 2020 Rule contains 
little direction to Federal agencies about how to ensure that those 
components are met (e.g., how to confirm public notice took place), 
other than noting in the preamble that the Federal agency's review role 
does not require the agency to ``make a substantive inquiry into the 
sufficiency of the information provided in support of a certification, 
condition, or a denial.'' Id. at 42268.
    This lack of clarity in the 2020 Rule has led to stakeholder 
confusion and misunderstanding about the nature of the Federal agency's 
review (e.g., assertions from both Federal agencies and states and 
tribes that the review is to be ``substantive'' in nature). 
Additionally, although the 2020 Rule limits Federal agency review to 
certain procedural components, Federal agency stakeholders expressed 
concerns about even this responsibility. In this vein, the 2020 Rule 
preamble says that ``[i]f a federal agency, in its review, determines 
that a certifying authority failed or refused to comply with the 
procedural requirements of the Act, including the procedural 
requirements of this final rule, the certification action, whether it 
is a grant, grant with conditions, or denial, will be waived.'' Id. at 
42266. The 2020 Rule takes the same approach with review of individual 
conditions, i.e., if a condition does not meet procedural requirements, 
it is waived (even though the certification itself stands). Id. at 
42263. The 2020 Rule does not extend Federal agency review to more 
substantive requirements of the Act (e.g., whether a certification 
decision was within the scope of certification). Id. at 42267.
    In pre-proposal feedback for this rule, certifying authorities 
expressed concern over the potential consequences of Federal agency 
review required by the 2020 Rule. These stakeholders said that, 
contrary to the plain language of the statute and legislative history, 
the 2020 Rule gives Federal agencies the ability to effectively 
``veto'' a state or tribal water quality certification, with no ability 
for the certifying authority to fix errors or submit additional 
explanatory information. EPA reflected this concern in its recent 
Federal Register document, stating that ``EPA is concerned that a 
federal agency's review may result in a state or tribe's certification 
or conditions being permanently waived as a result of nonsubstantive 
and easily fixed procedural concerns identified by the federal 
agency.'' 86 FR 29543 (June 2, 2021).
    The following subsections discuss the extent of Federal agency 
review, the Federal agency review process, and consequences of such 
review under this proposal.
1. Extent of Federal Agency Review
    The Agency is proposing to reaffirm its longstanding interpretation 
prior to the 2020 Rule that Federal agencies may review certification 
decisions only for the limited purpose of ensuring decisions will meet 
certain facial statutory requirements. Federal agency review of such 
requirements does not require a Federal agency to inquire into whether 
the certification is consistent with the substantive elements of 
Federal, state, or tribal law. In fact, consistent with prior Agency 
guidance and the 2020 Rule, section 401 does not authorize Federal 
agencies to review or change the substance of a certification (e.g., 
determine whether the certification or its conditions is within section 
401's scope of review). See 86 FR 42268; 2010 Handbook, at 10 
(rescinded).
    Circuit courts have routinely held that Federal agencies may not 
question or criticize the substance of a state's water quality 
certification or conditions, sees, e.g., City of Tacoma, 460 F.3d at 67 
(``[The Federal agency's] role is limited to awaiting, and then 
deferring to, the initial decision of the state.''); American Rivers, 
129 F.3d at 111 (``[The Federal agency] does not possess a roving 
mandate to decide that substantive aspects of state-imposed conditions 
are inconsistent with the terms of [section] 401.''); U.S. Dept. of 
Interior v. FERC, 952 F.2d 538, 548 (D.C. Cir. 1992) (``FERC may not 
alter or reject conditions imposed by the states through section 401 
certificates.''). Courts have also cautioned Federal agencies against 
imposing conditions they believe are more stringent than the certifying 
authority's conditions. See Sierra Club v. U.S. Army Corps of Eng'rs, 
909 F.3d 635, 648 (4th Cir. 2018) (``the plain language of the Clean 
Water Act does not authorize the Corps to replace a state condition 
with a meaningfully different alternative condition, even if the Corps 
reasonably determines that the alternative condition is more protective 
of water quality''); see also Lake Carriers' Ass'n. v. EPA, 652 F.3d 1, 
6, 12 (D.C. Cir. 2011) (concluding that additional notice and comment 
on state certification conditions would have been futile because ``the 
petitioners have failed to establish that EPA can alter or reject state 
certification conditions. . . .'').
    Rather, courts have generally found that Federal agencies may 
review certification decisions only to see whether the water quality 
certifications satisfy the minimum facial requirements of section 401, 
including whether the decision was issued within the reasonable period 
of time, whether public notice was provided, and whether the proper 
certifying authority issued the decision. The court in City of Tacoma 
found that if the facial public notice requirement of section 401 is 
``called into question'' before the Federal agency, the Federal agency 
must determine if it was met. 460 F.3d at 68 (requiring the Federal 
agency ``to obtain some minimal confirmation of such compliance, at 
least in a case where compliance has been called into question.'').
    Therefore, and consistent with the case law, EPA is proposing that 
Federal agency review of a certification decision is limited to four 
factors. First, a Federal agency may review a certification decision to 
confirm the nature of the decision (i.e., whether the certification 
decision is a grant, grant with conditions, denial, or express waiver). 
Section 401 requires a project proponent to obtain either a 
certification or waiver before the Federal agency may issue the license 
or permit. If a certifying authority denies certification, then the 
license or permit may not be issued. The Federal agency must determine 
whether ``the specific certification `required by [section 401 has] 
been obtained,' '' because otherwise, ``without that certification, 
[the Federal agency] lacks authority to issue a license.'' Id. at 67-
68. It is thus reasonable for a Federal agency to review a 
certification decision to ensure it understands which action the 
certifying authority took (i.e., grant, grant with conditions, deny, or 
expressly waive).

[[Page 35356]]

    Second, a Federal agency may confirm that the proper certifying 
authority issued the certification decision. Section 401 requires a 
project proponent to seek certification from the jurisdiction in which 
the discharge originates or will originate. 33 U.S.C. 1341(a)(1). 
Allowing a Federal agency to confirm that the proper certifying 
authority--meaning the certifying authority for the jurisdiction where 
the discharge originates or will originate--has issued certification is 
consistent with case law, American Rivers, 129 F.3d at 110-11, and 
prior Agency regulations and guidance, 85 FR 42267; 2010 Handbook, at 
10 (rescinded).
    Third, a Federal agency may review a certification decision to 
determine whether the certifying authority complied with its own 
established procedures for public notice on requests for water quality 
certification. Section 401 requires a certifying authority to provide 
procedures for public notice, and a public hearing where necessary, on 
a certification request. 33 U.S.C. 1341(a)(1). In City of Tacoma, the 
court held that the Federal agency had a statutory obligation to 
confirm whether the certifying authority complied with its public 
notice procedures in issuing the certification because compliance had 
been called into question. 460 F.3d at 68. ``Otherwise, [the Federal 
agency] has no assurance that the certification the state has issued 
satisfies section 401.'' Id. As discussed above, prior Agency guidance 
and regulations have recognized this form of Federal agency review. See 
85 FR 42267; 2010 Handbook, at 10 (rescinded).
    Lastly, a Federal agency may review a certification decision to 
confirm whether it was issued within the reasonable period of time. 
Section 401 establishes one year as the outer bound of the reasonable 
period of time. 33 U.S.C. 1341(a)(1); H.R. Rep. No. 91-940, at 54-55 
(March 24, 1970) (Conf. Rep) (adding a timeline for state certification 
``[i]n order to insure that sheer inactivity by the State . . . will 
not frustrate the Federal application''). It is thus reasonable for the 
Federal agency to determine whether a certifying authority failed to 
act within the reasonable period of time, and this has been the 
Agency's longstanding position in regulation and guidance. See 40 CFR 
121.16(b) (2019); 85 FR 42267; 2010 Handbook, at 10 (rescinded). 
Additionally, as discussed above, this is also consistent with case law 
on Federal agency review. See American Rivers, 129 F.3d at 110-11 
(explaining that FERC ``may determine . . . whether a state has issued 
a certification within the prescribed period''); see also Alcoa Power 
Generating, 643 F.3d at 972-73 (holding that, like the public notice 
requirements at issue in City of Tacoma, the issue of whether a 
certifying authority acted upon a certification request within the 
statutory one-year period was an issue properly before FERC).
    EPA does not find that Federal agencies have the authority to 
review other aspects of a certification decision for purposes of 
determining whether a ``certification required by [section 401] has 
been obtained or has been waived.'' 33 U.S.C. 1341(a)(1). EPA's 
proposal to clearly define the extent of Federal agency review in 
regulatory text is found in proposed Sec.  121.9. EPA requests comment 
on its proposed approach, including whether section 401 authorizes 
other aspects of a certification decision to be subject to Federal 
agency review.
2. Federal Agency Review Process
    This proposed rule also attempts to clarify the manner in which 
Federal agency review would occur. Section 401 does not expressly 
address what specific information certifying authorities must include 
in a certification decision, nor does it address the process of Federal 
agency review. While the statute does contain important information 
about the identity of the appropriate certifying authority, the length 
of the reasonable period of time, and a requirement for public notice, 
it does not prescribe how a certifying authority must demonstrate 
compliance with those requirements or describe the extent to which they 
are subject to Federal agency review.
    EPA is not proposing to define what specific information a 
certifying authority must include in its certification decision to 
demonstrate that it has met these four facial elements of section 401. 
Instead, certifying authorities may determine how to demonstrate 
compliance in response to a Federal agency inquiry about one of these 
aspects of its certification decision. Because certifying authorities 
are the entities most familiar with their certification process, 
certifying authorities, and not EPA or other Federal agencies, are in 
the best position to determine how to demonstrate compliance with these 
four section 401 facial elements.
    EPA does not anticipate that such demonstrations will be 
burdensome. As the court noted in City of Tacoma, Federal agencies only 
need ``to obtain some minimal confirmation of such compliance.'' 460 
F.3d at 68. For example, the certifying authority may choose to 
demonstrate that it provided public notice either by including a copy 
of the public notice with the certification or by including an 
attestation statement that public notice occurred. Similarly, a 
certifying authority may choose to demonstrate that it acted within the 
reasonable period of time by providing documentation of the date the 
certifying authority received the request for certification and 
documentation of the date it furnished the project proponent with a 
decision. A certifying authority may also choose to demonstrate that it 
is the proper certifying authority by providing location information, 
such as a map, demonstrating the discharge will originate in its 
jurisdiction. This sort of documentation should satisfy Federal agency 
review in most instances.
    EPA is requesting comment on its proposed approach, including 
examples of how a certifying authority could demonstrate that it met 
the section 401 facial requirements. In addition, EPA requests comment 
on alternative approaches whereby the Agency might identify in 
regulation different elements of a certification decision that might be 
appropriate for Federal agency review, or whether EPA should defer to 
Federal agencies to define those elements appropriate for them to 
review.
3. Consequences of Federal Agency Review
    The Agency is proposing to clarify the consequences of Federal 
agency review. If a Federal agency reviews a section 401 certification 
decision and determines it was not issued within the reasonable period 
of time, the Federal agency may determine that a waiver has occurred 
(or alternatively, may extend the reasonable period of time up to the 
one year statutory maximum). If the Federal agency determines that the 
statutory one year maximum has passed, the Federal agency may determine 
that a waiver has occurred. As discussed in section V.G in this 
preamble, a Federal agency may determine that a constructive waiver has 
occurred only if a certifying authority fails to take one of the four 
decisions described in this proposal within the reasonable period of 
time. Consistent with the 1971 Rule and 2020 Rule, the Agency is 
proposing to reaffirm that a waiver of certification occurs if the 
certifying authority fails to act within the reasonable period of time. 
See 40 CFR 121.9(a)(2)(i), 40 CFR 121.16(b) (2019). Similar to the 
approach in the 2020 Rule, the Agency is proposing to retain regulatory 
text describing how the Federal agency must communicate its waiver 
determination to the project proponent and certifying authority. See 40 
CFR 121.9(c). If a Federal agency determines that the

[[Page 35357]]

certification decision was not issued within the reasonable period of 
time, the Federal agency shall notify the certifying authority and 
project proponent in writing that a waiver has occurred. Similar to the 
2020 Rule, see Sec.  121.9(d), the Agency is also proposing to retain 
regulatory text that clarifies that such notification from the Federal 
agency satisfies the project proponent's obligations under section 401.
    Consistent with this approach, EPA is also proposing targeted 
conforming revisions to its part 124 and part 122 regulations, where 
these regulations allow EPA to find that a certifying authority waived 
its right to certify or waived a certification condition for reasons 
other than those specified in proposed Sec.  121.8 (failure to act on a 
request for certification within the reasonable period of time). EPA is 
proposing to delete 40 CFR 124.53(e), which allows EPA to waive 
certification conditions that do not meet the requirements of Sec.  
124.53(e)(2) or (3). EPA is also proposing to delete Sec.  124.53(e) 
because its approach to the contents of certification differs from 
proposed Sec.  121.7, as explained in at the end of preamble section 
V.F.4. EPA is also proposing to revise 40 CFR 124.55(c), which allows 
EPA to waive certification conditions or denials that are based on 
State law allowing a less stringent permit condition. EPA is proposing 
to delete the second sentence of Sec.  124.55(c), which allows EPA to 
waive a certification denial or condition, but the first sentence would 
not be affected by this proposal. EPA is proposing to revise 40 CFR 
122.44(d)(3), which allows EPA to waive certifications that are stayed 
by a court or state board under certain circumstances. EPA proposing to 
delete the second and third sentences, which concern certification 
waiver. EPA intends that certification waivers for EPA-issued NPDES 
permits be governed by the certification waiver requirements in part 
121.
    The Agency recognizes that a constructive waiver is a severe 
consequence; as discussed in section V.G in this preamble, a waiver 
means the Federal license or permit may proceed without any input from 
the certifying authority. EPA encourages Federal agencies, project 
proponents, and certifying authorities to communicate early and often 
to prevent inadvertent waivers due to passage of time. If Federal 
agency review reveals that a certifying authority has inadvertently 
failed to act within the reasonable period of time, EPA encourages 
Federal licensing and permitting agencies to extend the reasonable 
period of time (provided it does not exceed one year from the receipt 
of the certification request) to allow certifying authorities an 
opportunity to make a certification decision.\48\ Providing this 
opportunity would be consistent with cooperative federalism principles 
central to section 401 while respecting the statute's clear direction 
that the reasonable period of time may not exceed one year from the 
receipt of a request for certification. 33 U.S.C. 1341(a)(1).
---------------------------------------------------------------------------

    \48\ Allowing certifying authorities to remedy deficiencies if 
there is time remaining in the reasonable period of time is 
consistent with EPA's position in the joint memo with the Army 
addressing Corps permits. U.S. EPA and Department of the Army, Clean 
Water Act Section 401 Certification Implementation Memorandum, at 6 
(August 19, 2021).
---------------------------------------------------------------------------

    Aside from providing that a waiver occurs if the certifying 
authority does not act within the reasonable period of time, the 
statute does not provide direction on what should occur if a certifying 
authority fails to meet the other facial requirements in section 401. 
As discussed earlier, the legislative history indicates that Congress 
added the waiver provision to prevent ``sheer inactivity'' by a 
certifying authority from holding up the licensing or permitting 
process. See H.R. Rep. No. 91-940, at 54-55 (March 24, 1970) (Conf. 
Report). Consistent with the statutory language and legislative 
history, EPA believes that Congress intended such an extreme outcome 
only in situations where certifying authorities fail or refuse to make 
a decision, and not where a certifying authority, otherwise attempting 
to make a timely decision, fails to comply with other facial 
requirements of section 401. Case law also provides support for the 
Federal agency asking the certifying authority to either demonstrate 
that its decision meets section 401's facial requirements or remedy the 
situation instead of deeming any such failure an automatic waiver of 
certification. See City of Tacoma, 460 F.3d at 68-69 (``FERC should 
seek an affirmation from Ecology that it complied with state law notice 
requirements when it issued its water quality certification or, if it 
did not, that it has done so in response to this decision.'').
    If a Federal agency determines that a section 401 certification 
decision does not meet the certifying authority's public notice 
procedures, pursuant to proposed Sec.  121.9(b), the Federal agency 
must notify the certifying authority of the deficiency and provide the 
certifying authority with an opportunity to remedy the noted 
deficiency. If necessary, the Federal agency must extend the reasonable 
period of time to provide the certifying authority with an opportunity 
to remedy the deficiency, but the reasonable period of time may not 
exceed one year from the receipt of the certification request.
    If Federal agency review reveals that the wrong certifying 
authority issued the certification, EPA recommends that the Federal 
agency notify the project proponent that it must seek certification 
from the appropriate certifying authority before the Federal license or 
permit may be issued. As noted above, section 401 requires a project 
proponent to seek certification from the jurisdiction in which the 
discharge originates or will originate. 33 U.S.C. 1341(a)(1). 
Therefore, it is incumbent on the project proponent to identify and 
seek certification or waiver from the proper certifying authority 
before it may obtain a Federal license or permit.
    If a Federal agency determines that a section 401 certification 
decision does not clearly indicate whether it is a grant, grant with 
conditions, denial, or express waiver, pursuant to proposed Sec.  
121.9(b), the Federal agency must notify the certifying authority of 
the deficiency and provide the certifying authority with an opportunity 
to remedy it. Under EPA's proposed rulemaking, if necessary, the 
Federal agency must extend the reasonable period of time to provide the 
certifying authority with an opportunity to remedy the deficiency, 
subject to the caveat that the reasonable period of time may not exceed 
one year from the receipt of the certification request. EPA expects 
that a certifying authority would be able to clarify its intended 
decision for the Federal agency upon request.
    EPA is requesting comment on whether the Agency should develop 
procedures regarding how a certifying authority should respond to a 
Federal agency's notice regarding deficiencies in its certification 
decision. For example, should EPA provide a timeframe for the 
certifying authority to affirmatively respond to the Federal agency's 
notice of deficiency and provide a justification for any extension to 
the reasonable period of time (e.g., length of the public notice 
period)? EPA also is requesting comment on all aspects of its proposed 
rulemaking regarding Federal agency review and its understanding of the 
potential consequences of Federal agency review.

H. EPA's Roles Under Section 401

    Section 401 identifies a number of specific roles for EPA. First, 
EPA acts as the certifying authority on behalf of states or tribes that 
do not have ``authority to give such certification.'' 33

[[Page 35358]]

U.S.C. 1341(a)(1). Second, EPA is responsible for notifying other 
states or authorized tribes that may be affected by a discharge from a 
federally licensed or permitted activity, and where required, for 
providing an evaluation and recommendations on such other state or 
authorized tribe's objections. Id. at 1341(a)(2). Lastly, EPA is 
responsible for providing technical assistance upon request from 
Federal agencies, certifying authorities, or Federal license or permit 
applicants. Id. at 1341(b). This section focuses on EPA's role as a 
certifying authority and in providing technical assistance. EPA's role 
under section 401(a)(2) is discussed in detail in section V.K in this 
preamble.
1. EPA's Role as a Certifying Authority
    EPA is proposing to revise the part 121 regulations to provide 
greater clarity about EPA's process when it acts as the certifying 
authority. Pursuant to section 401 of the CWA, EPA acts as the 
certifying authority on behalf of states or tribes that do not have 
``authority to give such certification.'' 33 U.S.C. 1341(a)(1). The 
1971 Rule required EPA to provide certification in two scenarios: 
first, where EPA promulgated standards pursuant to section 10(c)(2) of 
the 1970 Water Quality Improvement Act; and second, where water quality 
standards have been established, but no state or interstate agency has 
authority to provide certification. 40 CFR 121.21 (2019). As discussed 
in section IV.A in this preamble, the 1971 Rule was promulgated prior 
to the enactment of the 1972 CWA amendments; as a result, the language 
in the 1971 Rule regarding EPA as a certifying authority does not 
reflect the amended text of section 401. In the 2020 Rule, EPA updated 
this provision with new regulatory text that indicates that EPA 
provides certification consistent with the 1972 statutory text and 
notes that EPA is required to comply with part 121 when it acts as a 
certifying authority. 40 CFR 121.13.
    EPA is proposing minor, conforming modifications to current Sec.  
121.13(a) and (b). Specifically, consistent with the language in 
section 401(a)(1), the Agency is proposing to reaffirm that EPA is 
required to provide certification where no state, tribe, or interstate 
agency has the authority to provide certification or a waiver. See 
proposed Sec.  121.16(a). The Agency is also proposing to reaffirm 
that, when it acts as a certifying authority, EPA must comply with both 
section 401 and the proposed requirements in part 121. See proposed 
Sec.  121.16(b). Alternatively, EPA is requesting comment on whether it 
needs to clarify in regulatory text the circumstances under which it 
would act as a certifying authority, or whether the statutory language 
is clear enough that it ``speaks for itself.''
    Currently, EPA acts as the certifying authority in two scenarios: 
(1) On behalf of tribes without ``treatment in a similar manner as a 
state'' (TAS) and (2) on lands of exclusive Federal jurisdiction. In 
the first scenario, if a tribe does not obtain TAS for section 401, EPA 
acts as the certifying agency for any federally licensed or permitted 
activity that may result in a discharge that originates in Indian 
country lands. As discussed in section V.L in this preamble, a tribe 
may obtain TAS for section 401 for the purpose of issuing water quality 
certifications. When EPA certifies on behalf of tribes without TAS, its 
actions as a certifying authority are informed by its tribal policies 
and the Federal trust responsibility to federally recognized tribes. 
EPA's 1984 Indian Policy, recently reaffirmed by EPA Administrator 
Regan, recognizes the importance of coordinating and working with 
tribes when EPA makes decisions and manages environmental programs that 
affect Indian country. See EPA Policy for the Administration of 
Environmental Programs on Indian Reservations (November 8, 1984), 
available at https://www.epa.gov/sites/default/files/2015-04/documents/indian-policy-84.pdf; see also Memorandum from Michael S. Regan to All 
EPA Employees, Reaffirmation of the U.S. Environmental Protection 
Agency's Indian Policy (September 30, 2021), available at https://www.epa.gov/system/files/documents/2021-09/oita-21-000-6427.pdf. This 
includes coordinating and working with tribes on whose behalf EPA 
reviews and acts upon requests for certification on federally licensed 
or permitted projects.
    In the second scenario, EPA acts as the certifying authority in 
situations where the Federal Government has exclusive jurisdiction over 
certain lands. Exclusive Federal jurisdiction is obtained in multiple 
ways, including (1) where the Federal Government purchases land with 
state consent to jurisdiction, consistent with article 1, section 8, 
clause 17 of the U.S. Constitution; (2) where a state chooses to cede 
jurisdiction to the Federal Government; and (3) where the Federal 
Government reserved jurisdiction upon granting statehood. See Collins 
v. Yosemite Park Co., 304 U.S. 518, 529-30 (1938); James v. Dravo 
Contracting Co., 302 U.S. 134, 141-42 (1937); Surplus Trading Company 
v. Cook, 281 U.S. 647, 650-52 (1930); Fort Leavenworth Railroad Company 
v. Lowe, 114 U.S. 525, 527 (1895). It is important to note that lands 
of exclusive Federal jurisdiction do not include lands where the 
Federal Government and a state, tribe, or interstate agency share 
jurisdictional responsibility.
    While 16 U.S.C. Chapter 1 identifies multiple national parks as 
lands of exclusive Federal jurisdiction,\49\ EPA does not maintain a 
map or list delineating all lands of exclusive Federal jurisdiction. In 
the preamble to the 2020 Rule, EPA noted that the number and extent of 
lands under exclusive Federal jurisdiction are subject to change and 
stated that it is the obligation of the project proponent to determine 
the identity of the appropriate certifying authority when seeking 
section 401 certification. 85 FR 42270 (July 13, 2020). Because such 
status is subject to change, EPA is not proposing to provide an 
exclusive list of lands subject to exclusive Federal jurisdiction. 
However, EPA is considering development of guidance to help 
stakeholders identify such areas. EPA is requesting comment on whether 
it should attempt to provide a list of lands subject to exclusive 
Federal jurisdiction or whether there are other examples or categories 
of lands of exclusive Federal jurisdiction that EPA should recognize, 
aside from the national parks identified in 16 U.S.C. Chapter 1, as 
lands of exclusive Federal jurisdiction.
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    \49\ These appear to include Denali National Park and Preserve, 
Yellowstone National Park, Yosemite National Park, Sequoia National 
Park, Crater Lake National Park, Glacier National Park, Rocky 
Mountain National Park, Mesa Verde National Park, Lassen Volcanic 
National Park, Great Smoky Mountains National Park, Mammoth Cave 
National Park, and Isle Royale National Park.
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    Consistent with the 2020 Rule, under this proposal, when EPA acts 
as the certifying authority, it is subject to the same requirements as 
other certifying authorities (e.g., reasonable period of time to act on 
a request for certification) under section 401 and 40 CFR 121. In 
contrast to the 2020 Rule, this proposal does not retain the request 
for additional information provisions included in Sec.  121.14 when EPA 
is the certifying authority. Under the 2020 Rule, EPA introduced limits 
on EPA's ability, as a certifying authority, to request additional 
information from a project proponent once the reasonable period of time 
began. These provisions include a requirement that EPA must initially 
request additional information within 30 days of receiving a request 
for certification and limitations on the type and scope of additional 
information EPA may request. 40 CFR 121.14(a)-(c). Additionally, the 
2020 Rule requires EPA to provide the project proponent with a deadline 
to respond to request for

[[Page 35359]]

additional information and acknowledges that a project proponent's 
failure to provide additional information neither extends the 
reasonable period of time, nor prevents EPA from acting on the request 
for certification. Id. at Sec.  121.14(d)-(e).
    EPA proposes to remove Sec.  121.14 in its entirety because it 
finds these provisions not conducive to an efficient certification 
process for several reasons. The preamble to the 2020 Rule stated that 
it was ``reasonable to assume that Congress intended some appropriate 
limits be placed on the timing and nature of such requests [for 
additional information]'' because of the overarching statutory 
timeline. 85 FR 42271. Yet, neither the 2020 Rule preamble nor its 
regulatory text articulates how a 30-day limitation on EPA's initial 
request for additional information is compelled or even consistent with 
the statutory limitation that a certifying authority must act within a 
reasonable period of time. Although it is ideal for EPA to have 
relevant information to inform its analysis early in the reasonable 
period of time, various questions or needs may arise later in the 
review process that are critical to EPA acting on a request for 
certification. There is nothing in the statutory language that compels 
or even suggests that EPA should have a limited ability to use the 
reasonable period of time to request additional information to evaluate 
a request for certification and make a fully informed decision. If the 
Agency is limited in its ability to request additional information to 
inform its decision, it may need to deny a request for certification 
instead of utilizing the additional information to possibly grant 
certification. Such an outcome would unnecessarily impede the Federal 
license or permitting process.
    The current regulatory language also unnecessarily injects 
ambiguity into the certification process. Section 121.14(b) limits 
requests for additional information to that which is ``directly related 
to the discharge'', while Sec.  121.14(c) limits requests only to 
information than can be ``collected or generated within the reasonable 
period of time.'' Yet neither phrase is defined nor explained in the 
preamble or regulatory text to the 2020 Rule which introduces 
uncertainty into what kind of information EPA could actually request. 
Furthermore, the statutory language and this proposal already place a 
number of limitations on all certifying authority decisions. As 
proposed in Sec.  121.7(b), all certifying authorities, including EPA, 
must act within the reasonable period of time and within the scope of 
certification. EPA finds that these proposed regulatory requirements 
are sufficient to ensure the Agency will act on requests for 
certification in a timely and appropriate manner.
    Consistent with the Agency's proposal to remove the aforementioned 
limitations on EPA's ability to request additional information, EPA is 
also proposing to remove the provisions at Sec.  121.14(d) and (e), 
which discuss how EPA and project proponents must respond to requests 
for additional information or lack thereof. The Agency is requesting 
comment on whether EPA should provide, either through guidance or in 
regulation, its expectations regarding communication with project 
proponents when EPA is a certifying authority.
    EPA is proposing to retain and update the provision regarding the 
certification public notice and hearing process when EPA is the 
certifying authority, currently located at Sec.  121.15. The statutory 
language of section 401(a)(1) requires states and interstate agencies 
to establish procedures for public notice and hearings. The D.C. 
Circuit has held that certifying authorities have an obligation to 
provide public notice on certification requests. See City of Tacoma, 
460 F.3d at 67-68. The 1971 Rule stated that EPA could provide public 
notice either by mailing notice to state and local authorities, state 
agencies responsible for water quality improvement, and ``other parties 
known to be interested in the matter'' (including adjacent property 
owners and conservation organizations), or, if mailed notice is deemed 
``impracticable,'' by publishing notice in a newspaper of general 
circulation in the area where the activity is proposed. 40 CFR 121.23 
(2019). With regard to hearings, the 1971 Rule provided that the 
Regional Administrator with oversight for the area of the proposed 
project has discretion to determine that a hearing is ``necessary or 
appropriate,'' and that ``[a]ll interested and affected parties'' would 
have reasonable opportunity to present evidence and testimony at such 
hearings. Id. EPA updated this provision in the 2020 Rule to expand the 
scope of possible parties that may receive notice to avoid 
unintentionally narrowing the list of potentially interested parties. 
85 FR 42271. Additionally, under the 2020 Rule, EPA has placed a 
timeframe on when the Agency must provide public notice following 
receipt of a certification request and retained discretion to provide 
for a public hearing as necessary or appropriate. Id; See 40 CFR 
121.15.
    In proposed Sec.  121.17, EPA is proposing to retain the public 
notice provision from the 2020 Rule with revisions to facilitate 
participation by the broadest number of potentially interested 
stakeholders and clarify that following such public notice, the 
Administrator shall provide an opportunity for public comment. The 1971 
Rule allowed the Agency to either provide notice to a list of possible 
interested parties through mail, including adjacent property owners and 
heads of state agencies responsible for water quality improvement, or 
provide notice in a ``newspaper of general circulation in the area in 
which the activity is proposed to be conducted.'' 40 CFR 121.23 (2019). 
As mentioned previously, the 2020 Rule removed this 1971 Rule provision 
that may have unintentionally narrowed the list of stakeholders who may 
wish to receive notice on projects seeking certification. However, the 
2020 Rule defines an appropriately broad list of potentially interested 
stakeholders (e.g., parties known to be interested in the proposed 
project). See 40 CFR 121.15(a). Additionally, the 1971 Rule limited the 
means for providing public notice to mail and newspaper circulation and 
may also unintentionally limit access to notice on such projects, 
particularly as stakeholders increasingly rely more on digital means of 
communication. Accordingly, EPA is proposing in Sec.  121.17 to provide 
public notice on receipt of a request for certification and broader 
public participation by not specifying the particular manner(s) in 
which that notice will occur. Aligning with the commitment to empower 
communities, protect public health and the environment, and advance 
environmental justice in Executive Orders 13990 and 12898, the proposal 
allows for outreach designed to reach all potentially interested 
stakeholders, including population groups of concern (e.g., minority 
and low-income populations as specified in Executive Order 12898 and 
indigenous peoples, as identified in EPA technical guidance \50\ as a 
population group of concern. The Agency encourages doing so by using 
all appropriate means and methods. This proposed approach will allow 
EPA greater flexibility to address on a case-by-case basis specific 
issues regarding

[[Page 35360]]

notice, such as broadband access issues and requirements for regional 
publications. Additionally, EPA is not proposing to provide in 
regulatory text an exhaustive list or examples of potentially 
interested parties to avoid unintentionally excluding some interested 
stakeholders on that list. EPA generally believes those stakeholders to 
whom it is appropriate to provide public notice may include state, 
tribal, county, and municipal authorities, heads of state agencies 
responsible for water quality, adjacent property owners, and 
conservation organizations. EPA is requesting comment on whether it 
should specify in regulatory text a list of stakeholders to whom notice 
of a certification request should be given.
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    \50\ EPA's Technical Guidance for Assessing Environmental 
Justice in Regulatory Action identifies population groups of concern 
including indigenous peoples and group as those identified under 
E.O. 12898 (minority and low-income populations) as well as sub-
populations that may be at greater risk for experiencing adverse 
effects, including those that rely on fish/wildlife for subsistence, 
age groups, and gender groups (p. 6).
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    Second, EPA is proposing to provide public notice within 20 days 
following receipt of a certification request. The 1971 Rule did not set 
a time frame for EPA's public notice after receiving a certification 
request. In contrast, the 2020 Rule states that EPA would provide 
public notice 20 days from receipt of a certification request. In EPA's 
view, continuing to provide a time frame for EPA's issuance of public 
notice following a receipt of a certification request will contribute 
to better accountability, transparency, and certainty with respect to 
EPA's handling of certification requests. Generally, EPA views it will 
be able to provide public notice within the proposed timeframe. EPA 
finalized an identical timeframe under the 2020 Rule, which it has been 
able to meet without difficulty in most instances. EPA is requesting 
comment on whether this 20-day time frame is reasonable, whether EPA 
should provide notice sooner or later, or whether it is even necessary 
to provide a time frame in regulatory text.
    EPA is proposing that once the Administrator provides public notice 
on receipt of a request for certification, the Administrator must 
provide an opportunity for public comment. EPA is not proposing to 
define the length of the public comment period. Rather, EPA believes 
the appropriate timeframe for comment is more appropriately determined 
on a case-by-case basis, considering project-specific characteristics. 
In general, EPA anticipates a 30-day comment period; however, comment 
periods as short as 15 days or as long as 60 days may be warranted in 
some cases, based on the nature of the project.
    EPA may also hold a public hearing after it provides public notice 
on receipt of a request for certification. EPA is proposing to retain 
with minor modifications the public hearing provision currently located 
at Sec.  121.15(b). For context, the 1971 Rule provided that the 
Regional Administrator may hold a public hearing at their discretion. 
40 CFR 121.23 (2019). Although ``[a]ll interested and affected 
parties'' have the opportunity to present evidence and testimony at a 
public hearing, the scope of the hearing is limited to the question of 
``whether to grant or deny certification.'' Id. The 2020 Rule carries 
forward the position that the Agency has discretion to determine 
whether a public hearing is necessary or appropriate; however, the 2020 
Rule removes the limitation on the subject matter of the public 
hearing. Consistent with the 2020 Rule, under Sec.  121.17(b) of this 
proposal, stakeholder input at public hearings may cover any relevant 
subject matter on the proposed project to best inform EPA as it makes 
its certification decision. EPA is requesting comment on the proposed 
public hearing provision in general.
    The Agency is also providing further insight on its plans to 
incorporate environmental justice into its role as a certifying 
authority. As discussed in section IV in this preamble, the Agency 
intends for this proposal to address essential water quality protection 
policies identified in Executive Order 13990, including environmental 
justice. In addition to the policy directive from Executive Order 
13990, other Executive orders emphasize the importance of advancing 
environmental justice in Federal agency actions. See E.O. 12898, 59 FR 
7629 (February 11, 1994) (directing agencies to make environmental 
justice part of their mission by identifying and addressing, as 
appropriate, disproportionately high and adverse human health or 
environmental effects of their programs, policies, and activities on 
minority and low-income populations in the United States), E.O. 14008, 
85 FR 7619 (January 27, 2021) (expanding on the policy objectives 
established in E.O. 12898 and directing Federal agencies to develop 
programs, policies, and activities to address the disproportionately 
high and adverse human health environmental, climate-related and other 
cumulative impacts on vulnerable, historically marginalized, and 
overburdened communities, as well as the accompanying economic 
challenges of such impacts).\51\
---------------------------------------------------------------------------

    \51\ The Agency also finalized and published the fiscal year 
(FY) 2022-2026 EPA Strategic Plan in March 2022, which includes new 
environmental justice strategic goals and emphasis to be embedded in 
all EPA work. See https://www.epa.gov/planandbudget/strategicplan.
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    Consistent with these directives and EPA technical guidance, when 
EPA acts as a certifying authority, the Agency should consider impacts 
on minority, low-income, indigenous communities who disproportionately 
bear the burdens of environmental pollution and hazards. In considering 
impacts from a federally licensed or permitted project, water quality 
related impacts on population groups of concern are issues that fall 
within the relevant scope of analysis and should inform decision-making 
on requests for certification. Specifically, the Agency intends to 
consider the extent to which the ``activity as a whole'' or any 
discharge may cause water quality-related effects with the potential to 
impact population groups of concern. Additionally, as discussed above, 
the Agency finds that broadening the public notice provision will 
provide communities seeking to advance environmental justice with 
greater opportunities to inform the certification process. The Agency 
invites comment on ways the Agency can further incorporate 
environmental justice and related concerns into its certification 
process, including whether the Agency should develop any regulatory 
text to this effect.
2. EPA's Role as a Technical Advisor
    Section 401(b) provides certifying authorities, project proponents, 
and Federal agencies with the ability to ask EPA for technical advice 
on applicable effluent limitations, or other limitations, standards, 
regulations, or requirements, or water quality criteria, and any 
methods to comply with such limitations, standards, regulations, 
requirements, or criteria. See also H.R. Rep. No. 92-911, at 124 (1972) 
(``The Administrator may perform services of a technical nature, such 
as furnishing information or commenting on methods to comply with 
limitations, standards, regulations, requirements, or criteria, but 
only upon the request of a State, interstate agency, or Federal 
agency.''). The 1971 Rule acknowledged this role but limited it to 
provision of technical advice on water quality standards. 40 CFR 121.30 
(2019). In the 2020 Rule, the Agency modified this provision to expand 
the scope of technical advice and assistance EPA might provide to 
better align with the statutory text. 85 FR 42274-75 (July 13, 2020).
    Therefore, consistent with the scope of section 401(b), EPA is 
proposing to revise the regulatory text currently at Sec.  121.16 to 
reflect the statutory text more directly. Under this proposal, EPA 
shall provide technical advice, upon request by a Federal agency, 
certifying authority, or project proponent, on (1) applicable effluent 
limitations, or other limitations, standards (including water

[[Page 35361]]

quality standards such as water quality criteria), regulations, or 
requirements, and (2) any methods to comply with such limitations, 
standards, regulations, or requirements. See proposed Sec.  121.18. 
Federal agencies, certifying authorities, and project proponents may 
request EPA's technical assistance at any point in the certification 
process.
    EPA does not intend this proposal to give EPA the authority to make 
certification decisions for states and authorized tribes, or to 
independently review state or tribal certifications or certification 
requests. See H.R. Rep. 92-911, at 124 (1972) (``The Committee notes 
that a similar provision in the 1970 Act has been interpreted to 
provide authority to the Administrator to independently review all 
State certifications. This was not the Committee's intent. The 
Administrator may perform services of a technical nature, such as 
furnishing information or commenting on methods to comply with 
limitations, standards, regulations, requirements or criteria, but only 
upon request of a State, interstate agency or Federal agency.''). Nor 
does the Agency consider its role under section 401(b) to include 
providing monetary or financial support to certifying authorities in 
implementing their section 401 programs. The Agency observes that there 
are other means for certifying authorities to seek financial assistance 
for their water quality certification programs (e.g., CWA section 106 
grants). The Agency requests comments on whether any additional 
procedural steps should be described in regulatory text, such as the 
manner in which certifying authorities, Federal agencies, and project 
proponents may request technical assistance.

I. Modifications

    The Agency is proposing to reintroduce a certification 
modifications provision. Prior to the 2020 Rule, the Agency's 
longstanding 1971 Rule allowed certification modifications to occur 
after a certification is issued, provided the certifying authority, 
Federal agency, and the EPA Regional Administrator agree to the 
modification. 40 CFR 121.2(b) (2019). In response to stakeholder 
recommendations and pre-proposal input to allow certification 
modifications, the Agency is proposing a process similar to the 1971 
Rule that allows a certifying authority to modify a certification after 
reaching an agreement to do so with the Federal licensing or permitting 
agency (but not EPA).
    CWA section 401 does not expressly authorize or prohibit 
modifications of certifications; nor does it preclude the certifying 
authority from participating in the licensing or permitting process 
after the issuance of a certification. See 33 U.S.C. 1341(a)(3)-(a)(5).
    In a significant change from prior practice, the 2020 Rule removes 
the 1971 Rule's modification provision in its entirety and shifts the 
obligation to define when certification modifications are allowed to 
the Federal licensing or permitting agency. 85 FR 42278 (July 13, 
2020). However, the 2020 Rule does not interpret the statutory silence 
in section 401 as prohibiting all modifications. Rather, the 2020 Rule 
preamble asserts that section 401 does not provide EPA an oversight 
role in the modification process or authorize ``unilateral'' 
modifications by certifying authorities. Id. The 2020 Rule preamble 
acknowledges that certification modifications could occur through other 
mechanisms (e.g., as provided in other Federal regulations), and 
encourages Federal agencies to establish procedures in regulation ``to 
clarify how modifications would be handled in these specific 
scenarios.'' Id. at 42279.
    Beyond modifications to existing certifications, the 2020 Rule 
preamble also suggests there might be circumstances that warrant the 
submission of a new request for certification, such as ``if certain 
elements of the proposed project (e.g., the location of the project or 
the nature of any potential discharge that may result) change 
materially after a project proponent submits a certification request.'' 
Id. at 42247. The Agency declined to identify in the 2020 Rule itself 
specific circumstances that might warrant the submission of a new 
certification request. After promulgation of the 2020 Rule, the Agency 
did not issue any further guidance on which situations warranted a new 
certification request (as opposed to modification of the existing 
certification through other Federal agency processes).
    In its 2021 Federal Register document, EPA expressed concern ``that 
the [2020 Rule's] prohibition of modifications may limit the 
flexibility of certifications and permits to adapt to changing 
circumstances.'' 86 FR 29544. Stakeholders have expressed similar 
concerns, noting that minor changes may occur in the project that may 
not rise to a level that requires a new certification (e.g., needing to 
extend the certification's ``expiration'' date to match a permit 
extension, or shifting the certified ``work window'' to reduce the 
amount of work occurring during high-flow periods), but may be 
significant enough to warrant a modification of the certification. 
During pre-proposal outreach, certifying authorities, project 
proponents, and non-governmental organizations expressed support for a 
certification modification process that balances transparency and an 
ability to adapt to new information. While some project proponents 
requested flexibility to adapt to changing circumstances, they noted 
that any rulemaking should limit unilateral actions a certifying 
authority may take to modify a certification after issuance.
    In response to stakeholder recommendations to allow certification 
modifications, the Agency is proposing a process similar to the 1971 
Rule that allows a certifying authority to modify a previously granted 
certification (with or without conditions) after reaching an agreement 
to do so with the Federal licensing or permitting agency. See proposed 
Sec.  121.10.
    The proposed approach is also consistent with section 401's 
temporal limitations on when a certifying authority may act on a 
certification request. The statute requires a certifying authority to 
act on a request for certification within a reasonable period of time 
not to exceed one year. 33 U.S.C. 1341(a)(1). As discussed in section 
V.F in this preamble, the Agency interprets the term ``to act on a 
request for certification'' to mean the certifying authority must make 
a decision to grant, grant with conditions, deny, or expressly waive 
certification. Under this proposed rulemaking, a certification 
modification could occur after the reasonable period of time in which 
the original certification decision was made.\52\ The Agency does not 
view allowing such modifications as contrary to the text of, or 
Congressional intent supporting, the reasonable period of time 
limitation. First, on its face, the reasonable period of time 
limitation only applies to the certifying authority's action on the 
request for certification. The statute is silent regarding whether it 
also applies to modifications. Second, in imposing the reasonable 
period of time limitation, Congress was concerned by the potential for 
the certifying authority's ``sheer inactivity'' to delay the project. 
See H.R. Rep. 92-911, at 122 (1972). That concern is not present with 
modifications because the certifying authority will have already acted 
on the request. Moreover, the Agency's proposal requires that the 
Federal agency also agree to initiate the modification process.
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    \52\ See discussion of reasonable period of time in section V.D 
in this preamble regarding extensions of the reasonable period of 
time, not to exceed one year from receipt of the request for 
certification.
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    EPA intends that, as used here, a modification means a change to an

[[Page 35362]]

element or portion of a certification or its conditions; it does not 
mean the wholesale reversal of a certification decision. For example, 
if a certifying authority has previously waived certification, that 
waiver may not be modified because there would be no ``certification'' 
to modify. Thus, a certifying authority may not ``modify'' a waiver by 
changing it into a grant, a grant with conditions, or a denial. 
Similarly, a denial of certification cannot be modified into a grant 
(with or without conditions) of certification. Furthermore, under this 
proposed rulemaking, a previously granted certification (with or 
without conditions) cannot be converted into a waiver or denial of 
certification because EPA considers a modification to be a change to an 
element or portion of a certification, not a reconsideration of the 
decision whether to certify. Constraining certifying authorities from 
fundamentally changing their certification action (e.g., changing a 
grant into a denial or vice versa) through a modification process 
recognizes reliance interests and promotes regulatory certainty. 
Further, EPA has concerns that changing the fundamental nature of the 
certification action (e.g., change a grant, denial, or waiver to 
something entirely different) may be inconsistent with the 
Congressional admonition to act on a certification request within the 
statutory reasonable period of time.
    The Agency is proposing that the ability to modify a certification 
be subject to two further limitations. First, similar to the 1971 Rule, 
the certifying authority and the Federal agency must agree in writing 
that a modification should be made. Second, the certifying authority 
may modify only those portions of the certification that the two 
parties agree should be modified. Both of these limitations are 
discussed below.
    First, EPA is proposing that a modification may only occur where a 
Federal agency and certifying authority agree in writing that the 
certification should be modified. The parties would have to agree that 
one or another part of the certification should be modified; they would 
not have to agree to the specific language of such modification. Unlike 
the 1971 Rule, the Agency is not proposing to include EPA in the 
certification modification process where the Agency is neither the 
certifying authority nor the Federal licensing or permitting agency. As 
noted in the 2020 Rule preamble, the statute does not expressly provide 
EPA with a role in the modification process, unlike the Agency's other 
roles under section 401.\53\ See 85 FR 42278 (July 13, 2020). 
Additionally, although the 1971 Rule provides the Agency with an 
oversight role in the modification process, the preamble to the 1971 
Rule does not explain why the Agency was given such a role. See 36 FR 
8563-65 (May 8, 1971). As such, the Agency does not see the need for 
such a role now, especially where EPA was not involved in the original 
certification decision and is not the relevant Federal permitting 
agency. EPA is proposing that it should not have an oversight role in 
the certification modification process. Consistent with the 1971 Rule, 
the Agency is also not proposing to require that the project proponent 
agree to the modification. However, the Agency anticipates that project 
proponents may still play some part in the modification process (e.g., 
notifying the certifying authority when it thinks a modification may be 
appropriate). The Agency is requesting comment on whether the 
regulations should provide project proponents with a more explicit and 
expansive role in the modification process.
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    \53\ See section V.H in this preamble discussing EPA's specific 
roles identified in section 401, including acting as a certifying 
authority on behalf of jurisdictions lacking authority, notifying 
other jurisdictions where their water may be affected by a discharge 
from another jurisdiction, and providing technical assistance upon 
request.
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    Because the Agency is reintroducing a provision similar to the 1971 
Rule's collaborative approach to modifications (albeit without EPA's 
involvement), the proposal would not allow for unilateral modifications 
by certifying authorities. This is consistent with the 2020 Rule. While 
the statutory language and legislative history appear to countenance a 
role for certifying authorities after a certification is issued, EPA 
does not think that role includes unilateral action to modify a 
certification.\54\ Rather, the certifying authority's actions under 
sections 401(a)(3)-(a)(4) depend on the existence of either a preceding 
or subsequent Federal agency action. See 33 U.S.C. 1341(a)(3)-(a)(4). 
The Agency does not view conditions in the original certification that 
require ongoing or future monitoring or modeling activities, including 
when paired with clearly defined adaptive management response actions, 
as unilateral certification modifications. Such conditions merely put 
project proponents and Federal agencies on notice at the time of 
certification that future adaptive management implementation actions 
might be needed.\55\
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    \54\ See 33 U.S.C. 1341(a)(3)-(a)(4); Keating v. Federal Energy 
Regulatory Comm'n, 927 F.2d 616, 621-22 (D.C. Cir.1991) (summarizing 
section 401(a)(3)); see also 115 Cong. Rec. 9257, 9268-9269 (April 
16, 1969) (discussing a hypothetical need for a state to take 
another look at a previously certified federally licensed or 
permitted activity where circumstances change between the issuance 
of the construction permit and the issuance of the operation 
permit).
    \55\ See section V.F for further discussion on the importance of 
certification conditions and adaptive management, particularly where 
future water quality-related impacts may occur due to climate change 
or other events.
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    The Agency is not proposing to define the specific circumstances in 
which a Federal agency and certifying authority may agree to modify a 
certification. During the pre-proposal input period, stakeholders said 
they need more flexibility than the 2020 Rule provides for 
modifications such as correcting typographical errors, changing a point 
of contact, or adjusting a certification's expiration date. The Agency 
invites comment on other scenarios or reasons for certification 
modifications.
    The last proposed limitation on a certification modification is 
that the certifying authority may only modify those portions of the 
certification that the Federal agency agrees may be modified. For 
example, if a Federal agency and certifying authority agree that a 
modification is necessary to fix a typographical error in the 
certification, the certifying authority may only modify that aspect of 
the certification. EPA recommends that the modification process be 
collaborative and that any modification be limited by the nature of the 
Federal agency and certifying authority's agreement. However, EPA is 
not suggesting that Federal agencies and certifying authorities must 
collaborate on the specific language of the certification modification. 
Rather, EPA's proposal contemplates that the certifying authority and 
the Federal agency agreement would identify those portions of the 
certification decision that the certifying authority would modify, and 
then the certifying authority would be responsible for drafting the 
modification language. The Agency is requesting comment on an 
alternative approach whereby the actual language of the certification 
modification would be agreed upon by both the Federal agency and the 
certifying authority.
    EPA is not proposing to place regulatory limitations on the point 
in time that certification modifications may occur. Rather, the Agency 
expects this proposal to provide the opportunity for certification 
modification at any point after certification issuance, provided the 
Federal agency and the certifying authority agree to make the 
modification. EPA is requesting comment on this approach. EPA is also

[[Page 35363]]

requesting comment on whether, in the interest of finality and 
reliance, there should be a temporal limitation on the ability to 
modify certifications. EPA is also requesting comment on whether the 
certification modification process should account for (1) whether there 
is a Federal license or permit modification process already in place 
and (2) the point in time at which a modification may be made (e.g., if 
new information supporting a modification arises either before or after 
issuance of the final license or permit).
    EPA is also proposing to delete 40 CFR 124.55(b), which describes 
the circumstances under which a modification may be made to a 
certification on an EPA-issued NPDES permit. The approach to 
modifications in Sec.  124.55(b) differs significantly from the 
approach proposed at Sec.  121.10. In many respects, it is more 
limited. For instance, Sec.  124.55(b) allows modifications after 
permit issuance only at the request of the permittee and only to the 
extent necessary to delete any conditions invalidated by a court or 
appropriate state board or agency. In one way, it is broader because it 
does not require EPA as the Federal permitting agency to agree to the 
modification. EPA intends for all certification modifications, 
including for EPA-issued NPDES permits to follow the approach discussed 
above and proposed at Sec.  121.10. EPA is requesting comment on 
whether it should allow a certifying authority to unilaterally modify 
any certification, including but not limited to certifications for EPA-
issued NPDES permits, in circumstances under which there is a change in 
State law or regulation upon which a certification is based, or if a 
court of competent jurisdiction or appropriate state board or agency 
stays, remands, or vacates a certification after license or permit 
issuance. See 40 CFR 124.55(b).
    Given the pre-proposal stakeholder input and the Agency's 
experience with certification modifications, the Agency is proposing to 
reintroduce a modification process for certifications, provided the 
certifying authority and Federal agency agree that a modification is 
necessary. By proposing this collaborative and adaptive process, EPA 
expects that certifying authorities and Federal agencies (as well as 
project proponents) will have the flexibility they need to adapt to 
changing circumstances or new information, while recognizing the need 
to protect reliance interests and promote transparency.

J. Enforcement and Inspections

    This section of the preamble discusses a number of issues that have 
arisen with respect to enforcement of the requirement to obtain CWA 
section 401 certifications and enforcement of certification conditions. 
The Agency is addressing these issues in response to stakeholder 
concern and confusion over how the 2020 Rule addresses CWA section 401 
enforcement. EPA is not proposing to retain any regulatory text 
regarding enforcement of the requirement to obtain section 401 
certification or enforcement of certification conditions.\56\ 
Nevertheless, in light of the significant pre-proposal input EPA 
received on this issue, EPA will discuss some of the more common 
concerns that have been identified regarding enforcement of the 
requirement to obtain section 401 certification and enforcement of 
certification conditions and seek further comment and input from 
stakeholders. To be clear, EPA is not offering new interpretations or 
positions on most of the issues discussed below. EPA does, however, 
invite comment on whether any of the interpretations or positions or 
judicial holdings identified below should be expressed in regulatory 
language in the final rule, specifically the interpretations on the 
enforceability of certification conditions by Federal agencies and 
certifying authorities; the judicial holdings regarding the application 
of the CWA citizen suit provision to certifications and certification 
conditions; and the interpretation of the term ``review'' in CWA 
section 401(a)(4).
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    \56\ EPA is proposing regulatory text regarding Federal agency 
review of certification decisions. See section V.G for further 
discussion.
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1. General Enforcement Issues
    Section 401 contains three provisions directly relevant to 
enforcement. First, section 401(a)(4) provides certifying authorities 
with an opportunity, prior to operation, to inspect a certified 
federally licensed or permitted activity or facility that does not 
require a Federal operating license to assure its operation will not 
violate water quality requirement. 33 U.S.C. 1341(a)(4). If the 
certifying authority determines that the operation will violate 
applicable water quality requirements, the Federal agency may suspend 
the license or permit after a public hearing. Id. Second, section 
401(a)(5) provides that any certified Federal license or permit may be 
``suspended or revoked'' by the Federal agency ``upon the entering of a 
judgment under [the CWA] that such facility or activity has been 
operated in violation'' of the enumerated sections of the CWA. Id. at 
1341(a)(5). Third, section 401(d) provides that certification 
conditions ``shall become a condition on any Federal license or permit 
subject to the provisions of this section.'' Id. at 1341(d).
    Of these three provisions, the 1971 Rule only included regulatory 
text on section 401(a)(4), as discussed below in the section on 
inspection authority. The 1971 Rule did not contain any regulatory 
provisions addressing section 401(a)(5) or section 401(d) (the latter 
of which was not added to the statute until the 1972 amendments). The 
2020 Rule addresses section 401(d) and section 401(a)(4). Regarding 
section 401(d), the 2020 Rule states that the Federal agency ``shall be 
responsible for enforcing certification conditions'' incorporated into 
its license or permit. Regarding section 401(a)(4), the 2020 Rule 
allows the pre-operation inspection under section 401(a)(4) of all 
certified projects, regardless of whether they had received a 
subsequent Federal operating license or permit. See 85 FR 42275-76. The 
2020 Rule preamble also stated that the ``CWA does not provide an 
independent regulatory enforcement role for certifying authorities,'' 
id. at 42275, and declined to finalize an interpretation regarding CWA 
section 505 citizen suits and section 401. Id. at 42277.
    In EPA's notice of intent to revise the 2020 Rule, EPA requested 
stakeholder feedback on several enforcement related issues, including 
``the roles of federal agencies and certifying authorities in enforcing 
certification conditions, whether the statutory language in CWA Section 
401 supports certifying authority enforcement of certification 
conditions under federal law, whether the CWA citizen suit provision 
applies to Section 401, and the rule's interpretation of a certifying 
authority's inspection opportunities.'' 86 FR 29543 (June 2, 2021). In 
pre-proposal input, stakeholders generally agreed that Federal agencies 
could enforce certification conditions. However, stakeholders expressed 
concern that the 2020 Rule prevents states and tribes from exercising 
their independent enforcement authority and relied solely on Federal 
agencies to enforce certification conditions. Several stakeholders 
expressed concern that Federal agencies may not be willing or able to 
enforce certification conditions incorporated into their Federal 
licenses or permits due to resource limitations (e.g., staff, funding, 
time). Conversely, a few stakeholders asserted that certifying 
authorities did not have an enforcement role either under section 401 
or any other provision of the CWA, including

[[Page 35364]]

section 505. Other stakeholders asserted that section 505 provided for 
citizen suit enforcement of both failures to obtain section 401 
certification and failure to comply with certification conditions.
    EPA observes that this proposal is generally focused on 
interpreting the text of section 401 itself, which does not directly 
address state or tribal enforcement authority. Consistent with the 
approach taken in the 2020 Rule, this rulemaking does not propose 
interpretations of other enforcement-related sections of the CWA, such 
as section 505. As such, the Agency is not inclined to propose 
regulatory text to address state or tribal enforcement authority with 
respect to section 401 or the CWA's citizen suit provision. 
Nevertheless, EPA invites comment on whether it should do so in the 
final rule and, if so, what regulatory language it should include.
    The Agency views section 401 certification conditions that are 
incorporated into the Federal license or permit as enforceable by 
Federal licensing or permitting agencies. Section 401(d) provides that 
certification conditions ``shall become a condition on any Federal 
license or permit.'' Because section 401 conditions become conditions 
of the Federal license or permit, the Federal agency may enforce any 
such conditions in the same manner as any other conditions of its 
license or permit. EPA expressed this interpretation in the 2020 Rule, 
85 FR 42275-76, and a decade prior to that rulemaking. See, e.g., 2010 
Handbook, at 32 (rescinded). EPA also observes that Federal agencies 
have considerable latitude in deciding whether and when to enforce 
requirements and conditions in their licenses and permits. See Heckler 
v. Cheney, 470 U.S. 821, 831 (1985) (discussing why it is important for 
agencies to retain enforcement discretion).
    The Agency has consistently taken the view that nothing in section 
401 precludes states from enforcing certification conditions when so 
authorized under state law. In the 2020 Rule preamble, the Agency 
concluded that ``[n]othing in this final [2020] rule prohibits States 
from exercising their enforcement authority under enacted State laws.'' 
EPA did, however, consider this authority limited to ``where State 
authority is not preempted by federal law.'' 85 FR 42276. A decade 
prior to the 2020 Rule, EPA had already recognized that states enforce 
certification conditions when authorized to do so under state law. See 
e.g., 2010 Handbook, p. 32-33 (rescinded) (``Many states and tribes 
assert they may enforce 401 certification conditions using their water 
quality standards authority.''). EPA is not proposing to retain the 
regulatory text currently located at Sec.  121.11(c) which expressly 
states that Federal agencies ``shall be responsible'' for enforcing 
certification conditions placed in the Federal license or permit. The 
regulatory text at Sec.  121.11(c) introduces ambiguity into the 
Agency's longstanding position that nothing in section 401 precludes 
states from enforcing certification conditions when authorized under 
state law, and has led to stakeholder confusion over whether the 2020 
Rule prevents states and tribes from exercising their independent 
enforcement authority and whether the 2020 Rule limited Federal agency 
discretion regarding their enforcement of section 401 conditions in 
their permits.
    With respect to CWA citizen suits and their application to section 
401 certifications and conditions, the Agency observes that there is 
some case law discussing this issue. First, the Ninth Circuit Court of 
Appeals has held that citizen suits may be brought to enforce the 
requirement to obtain certification. Or. Natural Desert Ass'n v. 
Dombeck, 172 F.3d 1092, 1095 (9th Cir. 1998). In Dombeck, the court 
rejected the argument that section 505 authorizes only suits to enforce 
certification conditions but not the requirement to obtain a 
certification. The court pointed to the plain language of section 505, 
which cross-references the entirety of section 401 (and not, for 
example, only section 401(d), which concerns certification conditions). 
Id. Second, a few Federal courts have held that certification 
conditions can be enforced through CWA citizen suits. In Deschutes 
River Alliance, a U.S. district court considered the issue at length 
and ultimately held that CWA section 505 authorizes citizens to enforce 
certification conditions. See Deschutes River Alliance v. Portland Gen. 
Elec. Co., 249 F. Supp. 3d 1182, 1188 (D. Or. 2017). Relying in part on 
Deschutes River Alliance, another U.S. district court also considered 
the issue in depth and held that the CWA citizen suit provision 
provides citizens a cause of action to sue to enforce the conditions of 
a section 401 certification. Pub. Emps. for Envtl. Responsibility v. 
Schroer, No. 3:18-CV-13-TAV-HBG, 2019 WL 11274596, at *8-10 (E.D. Tenn. 
June 21, 2019). EPA is not aware of any Federal court that has 
considered the issue and reached the opposite conclusion.
    EPA notes that Deschutes River Alliance also held that certifying 
states may enforce certification conditions via the CWA citizen suit 
provision. 249 F. Supp. 3d at 1191-92. The court reasoned that section 
505 is the only provision of the CWA that could bestow Federal 
authority upon states to enforce certification conditions and, given 
this, interpreting section 505 to preclude state enforcement of 
certification conditions would run ``contrary to the CWA's purpose and 
framework.'' Id. at 1191.
2. Certifying Authority Inspection Authority
    As discussed above, section 401(a)(4) identifies one set of 
circumstances where the certifying authority may review the manner in 
which a facility or activity will operate once the facility or activity 
has received certification. 33 U.S.C. 1341(a)(4). The certifying 
authority's review is limited to determining if the post-construction 
operation of the facility or activity will ensure that applicable 
effluent limitations, other limitations, or other applicable water 
quality requirements will not be violated. Section 401(a)(4) further 
states that upon notification by the certifying authority that the 
operation or activity will violate effluent limits, other limits or 
other water quality requirements, the Federal agency, after public 
hearing, may suspend the license or permit and the license or permit 
shall remain suspended until there is reasonable assurance that the 
facility or activity will not violate CWA sections 301, 302, 303, 306 
or 307. Id.
    The 1971 Rule clarified that the ability to ``review the manner in 
which the facility or activity shall be operated or conducted'' meant 
the right to inspect a facility or activity, and that the inspection is 
limited to a situation where there was a construction license or permit 
and a subsequent operating license or permit was not required. The 1971 
Rule set forth the procedure regarding inspection and subsequent 
inspection findings; however, these regulations only apply where EPA is 
the certifying authority. See 40 CFR 121.26-121.28 (2019). The 2020 
Rule interprets section 401(a)(4) to apply to all certifying 
authorities. It also expands the ability to conduct inspections 
pursuant to section 401(a)(4) to any certified project where the 
license or permit and certification were issued prior to operation, 
instead of only for projects where there was a construction license or 
permit and a subsequent operating license or permit was not required. 
40 CFR 121.11(a); 85 FR 42277. In pre-proposal input, several 
stakeholders pressed the Agency to

[[Page 35365]]

allow for inspections before, during, and post-operation.
    EPA thinks that the 2020 Rule incorrectly interprets the limited 
applicability of section 401(a)(4) and does not think the statutory 
language needs further clarification through rulemaking. Accordingly, 
EPA is proposing to remove Sec.  121.11(a)-(b) in the current 
regulation. On its face, section 401(a)(4) applies to a limited 
circumstance where there is a Federal license or permit and 
certification issued prior to operation of the facility or activity and 
there is not a subsequent Federal operating license or permit necessary 
for the facility or activity to operate. Under these limited 
circumstances, the statute is clear that the licensee or permittee must 
provide the certifying authority with the ability to ``review'' the 
facility or activity to determine whether it will comply with effluent 
limitations, other limitations, or other water quality requirements. 
EPA interprets the term ``review'' found in section 401(a)(4) to be 
broad enough to include inspection, but not necessarily limited to 
inspection. It can arguably also include the right to review 
preliminary monitoring reports or other such records that will assist 
the certifying authority in determining whether the operation of the 
facility or activity will comply with effluent limitations, other 
limitations, or other water quality requirements. EPA is requesting 
comment on whether it should articulate this interpretation of section 
401(a)(4) in regulatory text.
    EPA emphasizes that section 401(a)(4) does not necessarily limit 
the certifying authority's ability to inspect facilities or activities 
before or during operation in accordance with the certifying 
authority's laws and regulations. The Agency is aware that states and 
tribes may have their own authority to inspect a facility or activity 
to determine compliance with conditions set forth in a section 401 
certification. Similarly, section 401(a)(4) does not necessarily limit 
a Federal agency's ability to inspect a facility during the life of the 
permit or license pursuant to that Federal agency's laws and 
regulations.

K. Neighboring Jurisdictions

    Section 401(a)(2) establishes a process for ``neighboring 
jurisdictions'' to participate in the Federal licensing or permitting 
process in circumstances where EPA has determined that a discharge from 
an activity subject to certification from another jurisdiction ``may 
affect'' their water quality. EPA is revising the definition of the 
term ``neighboring jurisdiction'' to clarify that it includes ``any 
state, or tribe with treatment in a similar manner as a state for CWA 
section 401 in its entirety or only for CWA section 401(a)(2), other 
than the jurisdiction in which the discharge originates or will 
originate.'' See proposed Sec.  121.1(i).\57\ The current definition of 
``neighboring jurisdiction'' located at Sec.  121.1(i) inaccurately 
suggests that a neighboring jurisdiction may only include a state or 
TAS tribe that EPA determines may be affected by a discharge from 
another jurisdiction. However, a neighboring jurisdiction does not 
obtain its status as a neighboring jurisdiction based upon EPA's ``may 
affect'' determination. It instead obtains such status by being a 
jurisdiction other than the one where the discharge originates or will 
originate. Ultimately, a Federal license or permit may not be issued 
until the section 401(a)(2) process is complete.
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    \57\ Tribes without TAS to administer section 401 or section 
401(a)(2) are not neighboring jurisdictions for purposes of section 
401(a)(2), as the statutory language limits the section 401(a)(2) 
process specifically to states. However, EPA is proposing a process 
for tribes to attain TAS specifically for administering a water 
quality certification program under section 401 and for 
administering only the section 401(a)(2) portion of a water quality 
certification program. See proposed Sec.  121.11. Further, in the 
absence of TAS for either section 401 or 401(a)(2), tribes may 
participate in the public notice process for a section 401 water 
quality certification.
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    To initiate the section 401(a)(2) process, a Federal licensing or 
permitting agency must ``immediately'' notify EPA when it receives a 
license or permit application and a section 401 certification. 33 
U.S.C. 1341(a)(2). EPA then has 30 days from the date it receives that 
notification to determine whether a discharge from the activity may 
affect the water quality of a neighboring jurisdiction and, if so, to 
notify that neighboring jurisdiction, the licensing or permitting 
agency, and the project proponent.\58\ After receiving notice from EPA, 
the neighboring jurisdiction has 60 days to determine whether the 
discharge ``will affect'' its water quality so as to violate its water 
quality requirements, and if so, object in writing to the issuance of 
the license or permit and request that the licensing or permitting 
agency conduct a hearing on its objection. Id. When the licensing or 
permitting agency conducts a hearing under section 401(a)(2), EPA must 
submit to the licensing or permitting agency an evaluation and 
recommendations regarding the objection of the neighboring 
jurisdiction. In turn, section 401(a)(2) requires the licensing or 
permitting agency to condition the relevant license or permit ``as may 
be necessary to insure compliance with applicable water quality 
requirements,'' based upon the recommendations of the neighboring 
jurisdiction and EPA, and any additional evidence presented at the 
hearing. If ``the imposition of conditions cannot insure such 
compliance,'' the licensing or permitting agency shall not issue the 
license or permit. Id.
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    \58\ Fond du Lac Band of Lake Superior Chippewa v. EPA 
determined that the statutory language of section 401(a)(2) does not 
allow EPA to decline to make a determination whether or not a 
discharge from the certified project may affect water quality in a 
neighboring jurisdiction, and further found that EPA's ``may 
affect'' determination is judicially reviewable under the APA. 519 
F.Supp.3d 549, 565, 567 (D. Minn. 2021).
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    Section 401(a)(2) limits EPA to considering whether a ``discharge'' 
from an activity may affect the water quality of a neighboring 
jurisdiction, and likewise limits a neighboring jurisdiction to 
determining whether a ``discharge'' from the activity will affect its 
water quality so as to violate any water quality requirements. 
Accordingly, EPA interprets the scope of section 401(a)(2) as limited 
by the statutory language to considering potential effects only from a 
``discharge'' from an activity.
    Pre-proposal feedback relating to the process established in 
section 401(a)(2) reflected the need for more specificity regarding the 
roles of the Federal licensing or permitting agency, EPA, and the 
neighboring jurisdiction in the process, and the steps within the 
process. As a result, EPA is providing more detail and explanation in 
this proposal on the roles of each of these participants in the section 
401(a)(2) process and the steps involved. Additionally, to promote 
consistency and efficiency, EPA is updating the 2020 Rule to provide 
greater clarity regarding how the section 401(a)(2) process is 
initiated and conducted.
1. Federal Licensing or Permitting Agency's Role in Initiating the 
Section 401(a)(2) Process
    CWA section 401(a)(2) requires that the Federal licensing or 
permitting agency, upon receipt of a license or permit application and 
the related section 401 water quality certification, immediately notify 
the EPA Administrator of such certification and application. 33 U.S.C. 
1341(a)(2). The 1971 Rule established some procedural requirements for 
this process,\59\ which EPA updated in 2020. The 2020 Rule includes 
additional specificity on the timing of Federal agency notification but 
did not contain a standardized process for notification. 40 CFR 
121.12(a). Instead, the Agency relies on Federal agencies to develop 
notification

[[Page 35366]]

processes and procedures that work within their licensing or permitting 
programs. 85 FR 42273.
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    \59\ See 40 CFR part 121, subpart B (2019).
---------------------------------------------------------------------------

    The Agency is proposing to clarify what actions initiate the 
section 401(a)(2) process and when Federal agencies must provide 
notification to EPA under section 401(a)(2). Additionally, the Agency 
is proposing procedures for Federal agencies to follow when providing 
notification to EPA. Section 401(a)(2) provides that the Federal 
licensing or permitting agency must ``immediately'' notify the EPA 
Administrator upon receipt of an application and certification. 33 
U.S.C. 1341(a)(2). Under the 1971 Rule, EPA's section 401(a)(2) review 
was initiated upon receipt of either a certification or a waiver, which 
was treated as a substitute for certification. See 40 CFR 121.11, 
121.16 (2019). In the 2020 Rule, EPA's section 401(a)(2) review is 
initiated upon receipt of a certification. 40 CFR 121.12(a); see 85 FR 
42287. As discussed below, EPA is proposing to return to the approach 
taken in the 1971 Rule at proposed Sec.  121.12.
    Although the statutory text does not explicitly identify waiver of 
certification as an action that initiates section 401(a)(2) review,\60\ 
the Agency proposes that it is appropriate to treat the waiver of 
certification as a substitute for a grant of certification for purposes 
of section 401(a)(2) review for several reasons. First, this treatment 
is consistent with the purpose of section 401(a)(2). Section 401(a)(2) 
provides neighboring jurisdictions with an opportunity to object to 
federally licensed or permitted discharges originating in other 
jurisdictions, where they determine the discharge will violate their 
water quality requirements. A waiver does not indicate a certifying 
authority's substantive opinion regarding the water quality 
implications (for itself or another jurisdiction) of a proposed 
activity or discharge. Rather, a certifying authority may waive 
certification for a variety of reasons, including a lack of resources 
to evaluate the project. In addition, a certifying authority may be 
deemed to have waived certification for various reasons, including if 
that certifying authority fails or refuses to act on a request for 
certification before the end of the reasonable period of time. See 
section V.F in this preamble for further discussion on waivers. 
Ultimately a waiver of certification allows the Federal licensing or 
permitting agency to issue its license or permit without receipt of a 
water quality certification. As a result, a waived certification could 
result in water quality impacts that might violate a neighboring 
jurisdiction's water quality requirements. It seems reasonable to 
afford a mechanism for EPA and a neighboring jurisdiction to evaluate 
that possibility. Second, this approach is consistent with the Agency's 
approach to section 401(a)(2) for over 50 years. See 40 CFR 121.16 
(2019). Therefore, consistent with the approach taken in the 1971 Rule, 
the Agency is proposing to restore the interpretation that waivers, in 
addition to certifications, initiate the section 401(a)(2) process.
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    \60\ See section 401(a)(2) (``Upon receipt of such application 
and certification the licensing or permitting agency shall 
immediately notify the Administrator of such application and 
certification.'') (emphasis added).
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    Additionally, the Agency is proposing to clarify the term 
``application'' as applied to section 401(a)(2). Section 401(a)(2) 
requires a Federal licensing or permitting agency to notify EPA upon 
receipt of application and certification. 33 U.S.C. 1341(a)(2). Section 
401 uses the term ``application'' throughout section 401(a); however, 
when read in context, the term is used for both ``applications for 
certification'' and ``applications for such Federal license or 
permit.'' The Agency considers the ``request for certification'' to be 
an ``application for certification.'' See section V.C in this preamble 
for further discussion on a request for certification. In the context 
of section 401(a)(2), the term ``application'' is used to refer to the 
``application for such Federal license or permit.'' Id. As a result, 
section 401(a)(2) is initiated upon the Federal licensing or permitting 
agency's receipt of such Federal license or permit application and 
either a section 401 certification or a waiver of certification. 
However, the Agency is aware that there are instances where a Federal 
license or permit application does not accompany a certification or 
waiver (e.g., certification on general permits or Corps civil works 
projects). To account for Federal agencies' different licensing or 
permitting practices, the Agency is proposing to clarify that the term 
``application'' in this regulation means the license or permit 
application to a Federal agency, or if available, a draft license or 
permit.\61\ See proposed Sec.  121.1(c).
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    \61\ For this proposed rulemaking, EPA is not suggesting that 
Corps civil works projects are exempt from section 401(a)(2) 
processes, even though there are no ``applications'' or draft 
licenses or permits. Rather, EPA expects the Corps to determine how 
best to comply with all section 401 requirements. Compliance may 
involve the Corps sending a project study in conjunction with a 
certification or a waiver of certification.
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    As noted, the Agency is further seeking to clarify when a Federal 
agency must provide notification to EPA under section 401(a)(2) and is 
proposing basic procedures for Federal agencies to follow when 
providing such notification. As discussed above, section 401(a)(2) 
provides that the Federal licensing or permitting agency must 
``immediately'' notify the EPA Administrator upon receipt of an 
application for a Federal license or permit and certification. See 33 
U.S.C. 1341(a)(2). EPA seeks to clarify that a Federal agency is only 
considered to be in receipt of an application for a license or permit 
and certification within the meaning of section 401(a)(2) when such 
agency has received both an application for a license or a permit, as 
discussed above, and has either received a corresponding certification 
or a waiver has occurred.\62\ It is typical for Federal agencies to 
receive applications for licenses or permits in advance of receipt of 
certification or waiver. In such circumstances, it would be premature 
for the Federal agency to provide EPA with notification under section 
401(a)(2) until it has also received the certification or waiver has 
occurred and the statute accordingly only requires notification to EPA 
when the certifying agency is in possession of both.\63\
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    \62\ Although this statutory language is unambiguous, EPA is 
further discussing when receipt occurs due to questions and 
conflicting practices among Federal licensing and permitting 
agencies.
    \63\ It is necessary that certification or waiver occur for EPA 
to make a determination as to whether a discharge from the activity 
``may affect'' the water quality of a neighboring jurisdiction under 
section 401(a)(2), as EPA only makes such a determination where 
certification or waiver has occurred, and considers any conditions 
included in a certification in making this determination.
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    Furthermore, to aid in clarity and implementation, the Agency is 
proposing to retain the 2020 Rule interpretation of ``immediately'' to 
mean within five days of the Federal agency's receipt of the 
application for a Federal license or permit and either receipt of 
certification or waiver. Under the 2020 Rule, the Agency also 
interprets the term ``immediately'' to mean within five days of the 
Federal agency receiving notice of application and certification to 
encourage clear, consistent timing of the notification to EPA. 40 CFR 
121.12(a); see 85 FR 42273. The Agency is not aware of any practical 
challenges or issues posed by this timeframe. The Federal agency needs 
some amount of time to process receipt of the permit or license 
application and certification or waiver from the project proponent or 
certifying authority, review the received materials, which might be 
substantial, and then transmit notice to the appropriate EPA regional 
office. EPA considers five days a prompt yet

[[Page 35367]]

reasonable amount of time to complete this process. EPA is soliciting 
comment on whether it should interpret ``immediately'' in this context 
to mean a different period of time than five days, and whether five 
days provides Federal agencies with sufficient time to provide notice 
to EPA or if additional time is required.
    Although the text of section 401(a)(2) requires a Federal agency to 
notify EPA upon receipt of an application and certification, it does 
not define the contents of such notification. 33 U.S.C. 1341(a)(2). The 
1971 Rule and 2020 Rule provided some direction on information that 
could be submitted to EPA as part of the section 401(a)(2) process, but 
neither regulation defined the contents of the section 401(a)(2) 
notification. See 40 CFR 121.12(b); 40 CFR 121.13 (2019).
    The 1971 Rule provided that upon receipt of application for a 
license or permit with an accompanying certification, the Federal 
agency shall forward copies of the application and certification to the 
Regional Administrator. 40 CFR 121.11 (2019). It further stated that 
only those portions of the application which relate to water quality 
shall be forwarded to the Regional Administrator and allows for the 
Regional Administrator to ask for supplemental information if the 
documents forwarded do not contain sufficient information to make the 
determination provided for in Sec.  121.13. See 40 CFR 121.12 and 
121.13 (2019). In the preamble to the 2020 Rule, EPA said it expects 
Federal agencies to develop notification processes and procedures but 
noted that the Administrator could request copies of the certification 
and application. 85 FR 42273. During implementation of the 2020 Rule, 
some but not all agencies have developed their own procedures, and 
these procedures have varied between agencies and across the country.
    To provide consistency and to streamline the notification process, 
EPA is proposing to add regulatory text defining the minimum level of 
information that must be included in the notification to EPA. The 
Agency is proposing that the notification be in writing and contain a 
general description of the proposed project, including but not limited 
to: permit or license identifier, project location information (e.g., 
latitude and longitude), a project summary including the nature of any 
discharge and size or scope of activity, and whether the Federal agency 
is aware of any neighboring jurisdiction providing comment on the 
project. If the Federal agency is aware that a neighboring jurisdiction 
provided comment on the project, the notification shall include a copy 
of those comments. Additionally, the notification shall include a copy 
of the certification or notice of waiver, and the application, as 
defined at proposed Sec.  121.1(c). If supplemental information is 
needed to make a determination pursuant to section 401(a)(2), the 
Regional Administrator may ask for it in writing with a timeframe for a 
response, and the Federal agency shall obtain that information from the 
project proponent and forward the additional information to the 
Regional Administrator within the specified timeframe. If supplemental 
information is not provided in a timely manner, EPA may consider that 
lack of information as a factor in its ``may affect'' determination. 
The Agency may also develop agreements with Federal agencies to refine 
the notification process and the provision of supplemental information. 
The Agency is soliciting comment on the proposed aspects of the 
notification process, including the timing and the contents of the 
Federal agency notification to EPA.
2. EPA's Role Under Section 401(a)(2)
    Section 401(a)(2) states that whenever a discharge ``may affect, as 
determined by the Administrator, the quality of the waters of any other 
State,'' the Administrator must notify the other neighboring 
jurisdiction, Federal agency, and the project proponent of their 
determination within thirty days of the date of notice of the 
application. 33 U.S.C. 1341(a)(2). Under the 1971 Rule, the Regional 
Administrator was required to review the Federal license or permit 
application, the certification, and any supplemental information 
provided to EPA, and, if the Regional Administrator determined that 
there was ``reason to believe that a discharge may affect the quality 
of the waters of any State or States other than the State in which the 
discharge originates,'' the Regional Administrator would notify the 
affected jurisdictions within thirty days of receipt of the application 
materials and certification. See 40 CFR 121.13 (2019).
    Similarly, the 2020 Rule acknowledges EPA's responsibility to 
notify a neighboring jurisdiction whenever it determined that a 
discharge from the certified activity may affect the water quality of 
the neighboring jurisdiction. 40 CFR 121.12(b), 85 FR 42274. However, 
the 2020 Rule asserted that it was within the Agency's discretion 
whether to make a ``may affect'' determination in the first place, and 
that EPA was, therefore, not required to make such a determination. 85 
FR 42273. Additionally, the 2020 Rule does not clearly state in either 
regulatory text or the preamble whether there are specific factors that 
the Administrator must consider in making a ``may affect'' 
determination and whether any other interested party can be involved 
when EPA is making a ``may affect'' determination. Id. During the pre-
proposal outreach, stakeholders raised concerns that EPA had not 
clearly identified what factors it intended to use in determining 
whether a discharge ``may affect'' the water quality of a neighboring 
jurisdiction. Stakeholders also objected to EPA asserting sole 
discretion over this ``may affect'' determination without obtaining 
input from the neighboring jurisdiction or other stakeholders.
    To date, only one Federal district court has addressed EPA's 
obligation to make a determination pursuant to section 401(a)(2). In 
Fond du Lac, the court addressed two issues concerning section 
401(a)(2): (1) whether EPA is required to make a ``may affect'' 
determination and (2) whether EPA's ``may affect'' determination is 
judicially reviewable. 519 F.Supp.3d 549.The court concluded that EPA 
is required to determine whether the discharge may affect the quality 
of a neighboring jurisdiction's waters. In coming to this conclusion, 
the court examined the statutory text and found that it requires EPA to 
make ``a discrete factual determination . . . within a specific 
timeframe . . . based on an application and certification . . . .'' Id. 
at 564. The court further concluded that Federal courts have the 
jurisdiction to review EPA's ``may affect'' determination. The court 
did not opine on the specific meaning of ``may affect'' means or 
factors that EPA should consider in making a ``may affect'' 
determination.
    EPA agrees with the Fond du Lac court that EPA must determine 
whether a discharge ``may affect'' a neighboring jurisdiction once it 
receives notification of the application and certification or waiver, 
and EPA is proposing to revise the regulation accordingly. When EPA is 
the Federal licensing or permitting agency (e.g., EPA-issued NPDES 
permits), EPA intends to include such ``may affect'' determination in 
the administrative record for the permit action. EPA is further 
proposing that, in making a ``may affect'' determination, EPA has the 
discretion to look at a variety of factors depending on the type of 
license or permit and discharge. Factors that EPA could consider in 
making a ``may affect'' determination include, but are not limited to, 
the type of project and discharge covered in the license or permit, the 
proximity of the project and discharge to other

[[Page 35368]]

jurisdictions, certification and other conditions already contained in 
the draft license/permit, and the neighboring jurisdiction's water 
quality requirements. Given the range of Federal licenses or permits 
that are covered by CWA section 401(a)(2) and EPA's discretion to look 
at various factors, EPA is not proposing to identify specific factors 
EPA must analyze in making a ``may affect'' determination. Indeed, as 
each ``may affect'' determination is likely to be fact-dependent and 
based on situation-specific circumstances, EPA is uncertain that 
providing a required list of factors is possible. However, in the 
interest of transparency, EPA is asking for comment on whether such a 
list of specific factors that EPA must consider in making a ``may 
affect'' determination should be set forth in regulation and, if so, 
what factors should be included.
    EPA is further clarifying that, once it receives notice from a 
Federal agency initiating its obligation to make a ``may affect'' 
determination, it is within EPA's sole discretion to examine the facts 
and determine whether the discharge ``may affect'' the quality of a 
neighboring jurisdiction's waters. Section 401(a)(2) provides that 
``[w]henever such a discharge may affect, as determined by the 
Administrator. . . .'' 33 U.S.C. 1341(a)(2) (emphasis added). EPA 
interprets this language as providing the Agency with sole discretion 
in making a ``may affect'' determination. Accordingly, EPA is not 
required to engage with stakeholders or seek their input in making this 
determination. If an interested party does not agree with EPA's 
determination, that interested party may have recourse under the 
Administrative Procedure Act as discussed in Fond du Lac. However, in 
making its ``may affect'' determination, the Agency does intend to 
consider the views of other jurisdictions if provided in a timely 
manner. As discussed above, the Agency is proposing to define the 
contents of a Federal agency's notification to EPA to include an 
indication of whether any neighboring jurisdictions have expressed 
water quality concerns or provided such comment on the project.\64\ 
Other factors informing the Agency's ``may affect'' determination 
evaluation are discussed above, including the nature of the neighboring 
jurisdiction's water quality requirements.
---------------------------------------------------------------------------

    \64\ There are other opportunities for stakeholders to provide 
input into the certification and licensing or permitting process, 
including the public notice and comment processes on the 
certification and the license or permit.
---------------------------------------------------------------------------

    After receiving notification from the Federal licensing or 
permitting agency, EPA has 30 days to complete its ``may affect'' 
determination evaluation. 33 U.S.C. 1341(a)(2). If EPA determines that 
the discharge may affect a neighboring jurisdiction's water quality, 
EPA must notify the neighboring jurisdiction, the Federal licensing or 
permitting agency, and the project proponent. Id. EPA is proposing to 
retain regulatory text similar to 40 CFR 121.12(c) that clarifies which 
stakeholders EPA must notify upon making a ``may affect'' 
determination. The Agency is also proposing to define the contents of 
such notification similar to the 2020 Rule. The 1971 Rule did not 
define the contents of a ``may affect'' notification from EPA to a 
neighboring jurisdiction, Federal agency, and project proponent. 
However, the 1971 Rule provided that EPA must send the neighboring 
jurisdiction a copy of the application and certification it received to 
initiate the section 401(a)(2) process. 40 CFR 121.14 (2019). The 2020 
Rule defines the contents of EPA's notification. 40 CFR 121.12(c)(1). 
EPA is proposing to revise the provision from the 2020 Rule and clarify 
that its notification shall be in writing and shall include a statement 
that the Agency has determined that the discharge may affect the 
neighboring jurisdiction's water quality, as well as a description of 
the next steps in the section 401(a)(2) process, a copy of the 
certification or waiver, and a copy of the license or permit 
application. See proposed Sec.  121.13. The proposed regulation also 
retains similar text as the 2020 Rule that, once EPA makes a ``may 
affect'' determination, a Federal license or permit may not be issued 
pending the conclusion of the section 401(a)(2) process, as described 
in further detail below. Accordingly, the Agency is proposing to remove 
the regulatory provision located at Sec.  121.9(e) which provides that 
a Federal agency may issue a license or permit upon issuance of a 
written notice of waiver. As discussed above, waivers also trigger the 
section 401(a)(2) process and EPA may make a ``may affect'' 
determination based upon a waiver of certification. Consistent with the 
proposed language at Sec.  121.13(d), a Federal agency may not issue a 
Federal license or permit until the section 401(a)(2) process 
concludes.
    Upon completion of its ``may affect'' determination evaluation, if 
EPA does not find that a discharge from the activity may affect the 
water quality of a neighboring jurisdiction, then EPA is not required 
to provide notification of its determination. See 33 U.S.C. 1341(a)(2). 
If a Federal licensing or permitting agency does not receive 
notification from EPA that the discharge may affect a neighboring 
jurisdiction's water quality within 30 days after proper notification, 
then the Federal agency may proceed with processing the license or 
permit.
3. Neighboring Jurisdiction's Role Under Section 401(a)(2)
    CWA section 401(a)(2) states that if, within sixty days after 
receipt of EPA's notification, such other State determines that such 
discharge will affect the quality of its waters so as to violate any 
water quality requirements in such State, and within such 60 day period 
notifies the Administrator and the licensing or permitting agency in 
writing of its objection to the issuance of such license or permit and 
requests a public hearing on such objection, the licensing or 
permitting agency shall hold such a hearing. 33 U.S.C. 1341(a)(2). The 
1971 Rule did not describe the contents or form that such an objection 
notification must take. However, the 2020 Rule clarifies that the 
objection notification must identify the receiving waters that are 
determined to be affected and identify the specific water quality 
requirements that will be violated. 40 CFR 121.12(c)(2); 85 FR 42274.
    In this rule, EPA is proposing to revise the specific requirements 
for what a neighboring jurisdiction is required to include in an 
objection notification sent pursuant to section 401(a)(2). Initially, 
as required by the statute, the neighboring jurisdiction must act 
within 60 days of receipt of EPA's notification, and must provide its 
objection and request for public hearing in writing to EPA and the 
licensing and permitting authority. EPA is also proposing that the 
objection notification be sent to the certifying authority. Further, 
EPA is proposing that the neighboring jurisdiction include an 
explanation of the reasons supporting its determination that the 
discharge will violate its water quality requirements, including but 
not limited to identifying any water quality requirements that will be 
violated. This will allow EPA and the Federal licensing or permitting 
agency to understand the basis for the objection. EPA is not proposing 
to retain the regulatory text requiring the neighboring jurisdiction to 
identify the receiving waters that will be affected by the discharge. 
However, EPA anticipates this information will likely be included in 
the neighboring jurisdiction's explanation of the reasons supporting 
its determination that the discharge will violate its water quality 
requirements. EPA is not proposing to require the neighboring 
jurisdiction to identify a

[[Page 35369]]

license or permit condition that it thinks would resolve the objection; 
however, EPA encourages neighboring jurisdictions to offer such a 
condition or conditions and is requesting comment on whether this 
element should be required by regulation.
4. Objection and Public Hearing Process Under Section 401(a)(2)
    As discussed above, a neighboring jurisdiction must request a 
public hearing from the Federal licensing or permitting agency as part 
of its objection. CWA section 401(a)(2) does not provide for a specific 
process for the section 401(a)(2) public hearing. It merely states 
that, if a neighboring jurisdiction objects to a Federal license or 
permit and requests a public hearing within the 60-day timeframe, the 
Federal licensing or permitting agency must hold a hearing. 33 U.S.C. 
1341(a)(2). The statute further provides that the EPA Administrator 
must submit an evaluation and recommendations regarding the objection 
at the hearing. Id. In addition, section 401(a)(2) states that 
additional evidence may be presented at the hearing. After the public 
hearing, the Federal licensing or permitting agency must consider the 
recommendations of the neighboring jurisdiction and EPA Administrator 
as well as any additional evidence presented at the hearing and, based 
on that information, must condition the license or permit as may be 
necessary to ensure compliance with applicable water quality 
requirements. If additional conditions cannot ensure compliance with 
applicable water quality requirements, the license or permit cannot be 
issued. Id. Notably, the statute is silent as to whether public notice 
of the public hearing is required; the nature of, and specific 
procedures for, the public hearing; the need for a court reporter or 
transcript; whether the Federal licensing or permitting agency's 
decision is appealable; and other such matters.
    The 1971 Rule provided that, in cases where the Federal licensing 
or permitting agency held a public hearing on the objection raised by a 
neighboring jurisdiction, the licensing or permitting agency was 
required to forward notice of such objection to the Regional 
Administrator no later than 30 days prior to the hearing. 40 CFR 121.15 
(2019). At the hearing, the Regional Administrator was required to 
submit an evaluation and ``recommendations as to whether and under what 
conditions the license or permit should be issued.'' Id. EPA retained 
these requirements in the 2020 Rule. 40 CFR 121.12(c)(3); 85 FR 42274.
    The Agency is proposing to add transparency to the section 
401(a)(2) process by requiring the Federal agency to provide for a 
minimum of a 30-day public notice of the hearing. This will allow for 
notice to all interested parties, including the neighboring 
jurisdiction and EPA, and provide adequate time for such parties to 
determine whether they have any interest in attending the public 
hearing. EPA is not defining the type of public hearing that the 
Federal agency must hold since many Federal agencies have their own 
regulations regarding public hearings on permits and licenses; however, 
EPA recommends that the public hearing would be one at which the 
Federal agency accepts comments and additional evidence on the 
objection. EPA defers to the Federal agency to decide whether the 
public hearing would be conducted in-person and/or remotely through 
telephone, online, or other virtual platforms depending on the 
circumstances and the Federal agency's public hearing regulations.
    As discussed, section 401(a)(2) provides that the EPA Administrator 
shall submit an evaluation and recommendations on the objection raised 
by the neighboring jurisdiction at the hearing conducted by the Federal 
licensing or permitting agency. The statutory text does not elaborate 
on how the Administrator is to develop its evaluation and 
recommendations or what specific elements it must include. Accordingly, 
the statute provides EPA with considerable discretion in developing its 
evaluation and recommendations.
    EPA interprets its role in providing the evaluation and 
recommendations on the neighboring jurisdiction's objection as that of 
an objective and neutral evaluator providing recommendations to the 
licensing or permitting Federal agency based upon its expert, technical 
analysis of the record before it. EPA intends to conduct its evaluation 
and make any recommendations based on the information before it, giving 
equal consideration to the information and views--if provided--by 
interested parties, including the objecting neighboring jurisdiction, 
project proponent, and certifying authority. Consistent with this 
approach, as a general matter EPA does not intend to invite comment and 
input from, or engage with, interested parties when developing its 
evaluation and recommendations on the objection. However, EPA may, 
where it deems it appropriate, seek additional information from a 
neighboring jurisdiction regarding its objection to be sure EPA is able 
to develop an informed and well-supported evaluation and accompanying 
recommendations. This approach to developing its evaluation and 
recommendations is consistent with the hearing process established by 
section 401(a)(2), which recognizes a role for the neighboring 
jurisdiction independent of the Agency and allows for presentation of 
evidence at the hearing by any interested stakeholder, including the 
neighboring jurisdiction. If a stakeholder agrees or disagrees with 
EPA's evaluation and recommendations presented at the hearing, such 
stakeholder may have an opportunity to provide additional information 
and comment directly to the Federal agency for its consideration.
    After conducting the public hearing, pursuant to CWA section 
401(a)(2), the Federal licensing or permitting agency must consider the 
recommendations of the neighboring jurisdiction and EPA, as well as any 
additional evidence presented at the hearing, as it determines whether 
additional permit or license conditions are necessary to ensure 
compliance with applicable water quality requirements. 33 U.S.C. 
1341(a)(2). The Act does not accord special status to EPA's evaluation 
and recommendations compared with the neighboring jurisdiction's input 
or other evidence received at the hearing; rather, the section appears 
to contemplate that the Federal agency will consider all of the 
information presented in making its decision. If the Federal licensing 
or permitting agency determines that additional conditions may be 
necessary to ensure compliance with the neighboring jurisdiction's 
water quality requirements, the Federal licensing or permitting agency 
must include those conditions in the Federal license or permit. In 
addition, if the Federal licensing or permitting agency cannot include 
conditions that will ensure compliance with applicable water quality 
requirements, the Federal agency cannot issue the license or permit. 
EPA is proposing to specifically incorporate these statutory 
requirements in regulatory language.
    EPA is not, however, proposing to establish a deadline by which the 
Federal licensing or permitting agency must make a determination after 
the public hearing. EPA is requesting comment on whether such a 
deadline should be established.
    CWA section 401(a)(2) states that if the neighboring jurisdiction 
notifies EPA and the licensing or permitting agency ``in writing of its 
objection to the issuance of [the] license or permit and requests a 
public hearing on such objection, the licensing or permitting agency 
shall hold such a hearing.'' 33

[[Page 35370]]

U.S.C. 1341(a)(2). For a hearing to be required under section 
401(a)(2), there must be (1) a written objection from the neighboring 
jurisdiction and (2) a request for a public hearing on the objection. 
Id. EPA is proposing that if one of these elements is not present, the 
Federal agency is not required to hold a hearing. If a neighboring 
jurisdiction can resolve its concerns with the Federal licensing or 
permitting agency before a public hearing is held, then under this 
proposed approach, the neighboring jurisdiction could withdraw its 
objection and, as a result, a public hearing would not be required. EPA 
does not assume that a withdrawal of a written objection would 
eliminate the need for the Federal licensing or permitting agency to 
comply with its own public notice requirements if resolution of the 
objection results in a change to the permit or license. EPA is 
requesting comment on whether a neighboring jurisdiction could withdraw 
its objection before the hearing is held and, thus, eliminate the 
requirement to hold a public hearing. EPA is also requesting comment on 
whether it should develop any regulatory text to clarify this aspect of 
the section 401(a)(2) process.

L. Treatment in a Similar Manner as a State Under Section 401

    This proposed rulemaking would add provisions enabling tribes to 
obtain treatment in a similar manner as a state (TAS) solely for 
section 401, as well as provisions on how tribes can obtain TAS for the 
limited purpose of participating as a neighboring jurisdiction under 
section 401(a)(2). These proposed provisions provide more opportunities 
and clarity for tribes interested in participating in the section 401 
certification process. Although the CWA clearly allows tribes to obtain 
TAS for section 401, current regulations and practice treat TAS for 
section 401 as an adjunct to TAS for the CWA section 303(c) program for 
water quality standards.
    Section 401 specifies that certification under section 401(a)(1) 
shall be made by the state in which the discharge originates or will 
originate, or if appropriate, the interstate water pollution control 
agency with jurisdiction over the waters of the United States where the 
discharge originates or will originate. 33 U.S.C. 1341(a)(1). Likewise, 
under section 401(a)(2) the Administrator considers whether a discharge 
from a project may affect ``the quality of the waters of any other 
state'' in initiating the neighboring jurisdiction process. Id. at 
1341(a)(2). Prior Agency guidance and the 2020 Rule preamble provided 
that only tribes with TAS for section 401 may act as certifying 
authorities under section 401(a)(1) and may act as neighboring 
jurisdictions under section 401(a)(2). 85 FR 42270, 42274; 2010 
Handbook, at 6 (rescinded). The 1971 Rule did not address tribes with 
TAS; the TAS provisions in the CWA were not introduced until the 1987 
CWA Amendments.
    Under section 518 of the CWA, EPA may treat federally-recognized 
Indian tribes in a similar manner as a state for purposes of 
administering most CWA programs over Federal Indian reservations. 33 
U.S.C. 1377. Under section 518 and EPA's implementing regulations, an 
Indian tribe is eligible for TAS to administer CWA regulatory programs, 
including section 401, if it can demonstrate that (1) it is federally-
recognized and exercises governmental authority over a Federal Indian 
reservation; \65\ (2) it has a governing body carrying out substantial 
governmental duties and power; (3) it has the appropriate authority to 
perform the functions to administer the program; and (4) it is 
reasonably expected to be capable of carrying out the functions of the 
program it applied to administer. See 33 U.S.C. 1377(e), (h); see also, 
e.g., 40 CFR 131.8.
---------------------------------------------------------------------------

    \65\ ``Federal Indian reservation'' means all land within the 
limits of any Indian reservation under the jurisdiction of the 
United States Government, notwithstanding the issuance of any 
patent, and including rights-of-way running through the reservation. 
33 U.S.C. 1377(h)(1).
---------------------------------------------------------------------------

    While certain CWA programs have TAS implementing regulations,\66\ 
there are currently no such regulations tailored solely for section 
401. In the absence of TAS provisions tailored specifically for section 
401, tribes have received TAS for section 401 when eligible for TAS to 
administer the section 303(c) program for water quality standards. 40 
CFR 131.4(c) (``Where EPA determines that a Tribe is eligible to the 
same extent as a State for purposes of water quality standards, the 
Tribe likewise is eligible to the same extent as a State for purposes 
of certifications conducted under Clean Water Act section 401.''). To 
date, 78 federally-recognized tribes (out of 574) have received TAS for 
section 401 concurrently with obtaining TAS for section 303(c).\67\
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    \66\ For example, there are TAS regulatory provisions for the 
CWA section 303(c) water quality standards (WQS) program, located at 
40 CFR 131.8, and for the CWA section 303(d) impaired water listing 
and total maximum daily load program, located at 40 CFR 130.16.
    \67\ See https://www.epa.gov/tribal/tribes-approved-treatment-state-tas.
---------------------------------------------------------------------------

    Upon receiving TAS for section 401, tribes have two roles. First, 
tribes that receive section 401 TAS are responsible for acting as a 
certifying authority for projects that may result in a discharge into 
waters of the United States on their Indian reservations. As certifying 
authorities, tribes with TAS may grant, grant with conditions, deny, or 
waive certification based on whether a federally licensed or permitted 
project will comply with sections 301, 302, 303, 306, and 307 of the 
CWA and any other appropriate requirements of tribal law. See 33 U.S.C. 
1341(a)(1) and (d). Second, tribes that receive section 401 TAS are 
accorded the status of ``neighboring jurisdiction'' for purposes of 
section 401(a)(2). If EPA makes a ``may affect'' determination with 
respect to that neighboring jurisdiction, the neighboring jurisdiction, 
including tribes with TAS for section 401, may object to the Federal 
license or permit if they determine that the discharge ``will violate'' 
their water quality requirements and request a public hearing from the 
Federal licensing or permitting agency. 33 U.S.C. 1341(a)(2).
    EPA is proposing a section 401-specific set of requirements and 
procedures for tribes seeking TAS for purposes of making sections 
401(a)(1) and 401(d) certification decisions and for exercising their 
statutory rights as a ``neighboring jurisdiction'' under section 
401(a)(2). These proposed procedures do not eliminate or modify the 
section 401 procedures already found in part 131. Instead, they provide 
an alternate path for tribes wishing to obtain TAS status only for 
section 401 and not also for section 303(c).
1. Obtaining TAS for Section 401
    Proposed Sec.  121.11 includes the criteria an applicant tribe 
would be required to meet to be treated in a similar manner as states, 
the information the tribe would be required to provide in its 
application to EPA, and the procedure EPA would use to review the 
tribal application. This section is intended to ensure that tribes 
treated in a similar manner as states for the purposes of the section 
401 water quality certification program are qualified, consistent with 
CWA requirements, to implement a water quality certification program. 
The procedures are meant to provide more opportunities for tribes to 
engage fully in the program and are not intended to act as a barrier to 
tribal assumption of the section 401 program. The proposed procedures 
are modeled after the TAS regulatory provisions for the CWA section 
303(c) WQS program, located at 40 CFR 131.8, and the TAS provisions

[[Page 35371]]

for the CWA section 303(d) impaired water listing and total maximum 
daily load program, located at 40 CFR 130.16. The WQS TAS regulations, 
developed in the early 1990s, have acted as a model for other programs 
including the section 303(d) regulations. See 81 FR 65905. 
Additionally, as discussed above, EPA's TAS regulations allow tribes to 
simultaneously obtain TAS for sections 303(c) and 401 and have been 
used by 78 tribes to date. As a result, the Agency thinks the part 131 
and part 130 TAS regulations provide an appropriate model for this 
proposal.
    Consistent with the requirements provided in CWA section 518, EPA 
proposes that four criteria must be met for tribes to obtain TAS for 
section 401. First, the tribe should be federally recognized by the 
U.S. Department of the Interior and meet the definitions in proposed 
Sec.  121.1(f) and (g). Second, the tribe should have a governing body 
that carries out ``substantial governmental duties and powers'' over a 
defined area. Third, the tribe should have appropriate authority to 
regulate and manage water resources within the borders of the tribe's 
reservation. Lastly, the tribe should be reasonably expected, in the 
Regional Administrator's judgment, to be capable of administering a 
section 401 water quality certification program.
    The tribe may satisfy the first criterion by stating that it is 
included on the list of federally recognized tribes that is published 
periodically by the U.S. Department of the Interior. Alternatively, the 
tribe may submit other appropriate documentation (e.g., if the tribe is 
not yet included on the U.S. Department of the Interior list but is 
federally recognized).
    To meet the second criterion, the tribe would show that it conducts 
``substantial governmental duties and powers,'' which the Agency views 
as performing governmental functions to promote the health, safety, and 
welfare of the affected population within a defined geographical area. 
See 54 FR 39101; 81 FR 65906. This requires a descriptive statement 
that should (1) describe the form of tribal government, (2) describe 
the types of essential governmental functions currently performed by 
the tribal governing body, including but not limited to, the exercise 
of the power of eminent domain, taxation, and police power, and (3) 
identify the sources of authorities to carry out these functions.
    To establish the third criterion that the tribe has the authority 
to manage the water resources within the borders of the tribe's 
reservation, the tribe would submit a descriptive statement comprised 
of two components. First, the statement should include a map or legal 
description of the area over which the tribe has authority to regulate 
surface water quality. Second, there should be a statement signed by 
the tribe's legal counsel or equivalent explaining the legal basis for 
the tribe's regulatory authority. EPA notes that section 518 of the CWA 
includes a delegation of authority from Congress to eligible Indian 
tribes to regulate the quality of waters of their reservations under 
the CWA. See 81 FR 30183 (May 16, 2016). Absent rare circumstances that 
may affect a tribe's ability to effectuate the delegation of authority, 
tribes may rely on the congressional delegation of authority included 
in section 518 of the statute as the source of authority to administer 
a section 401 water quality certification program. This is identical to 
the manner in which tribes have been demonstrating authority for 
eligibility to administer 401 certifications under existing TAS 
regulations, the only change being that under the new proposed 
regulations, tribes would be able to seek TAS eligibility for section 
401 only. Similarly, as with tribes already administering section 401 
under prior TAS approvals, the authority to issue certifications 
exercised by a tribe authorized under the new proposed regulation will, 
by virtue of the congressional delegation, apply throughout the 
reservation area covered by the TAS approval, irrespective of land 
ownership or the tribal membership status of the Federal license 
applicant. See, e.g., 81 FR 30190. Therefore, grants or waivers of 
certification by an authorized tribe, as well as any conditions 
included in a certification or denials of certification by an 
authorized tribe, would apply to any application for a Federal license 
throughout the relevant reservation without any separate need to 
demonstrate inherent tribal jurisdiction.
    A tribe may satisfy the fourth criterion regarding its capability 
by either (1) providing a description of the tribe's technical and 
management skills to administer a water quality certification program 
or (2) providing a plan that proposes how the tribe will acquire such 
skills. Additionally, when considering tribal capability, EPA would 
also consider whether the tribe can demonstrate the existence of 
institutions that exercise executive, legislative, and judicial 
functions, and whether the tribe has a history of successful managerial 
performance of public health or environmental programs.
    To provide direction on how a tribe may meet the criteria described 
above, EPA is also proposing to describe the contents of an application 
for TAS for section 401. See proposed 40 CFR 121.11(b). These contents 
include a statement that the tribe is recognized by the Secretary of 
the Interior, a descriptive statement that demonstrates the tribal 
government carries out substantial duties and powers, a descriptive 
statement of the tribe's authority to regulate water quality, and a 
narrative statement that describes the tribe's capability to administer 
a section 401 water quality certification program. Consistent with 
existing TAS regulations for other programs, the proposed rulemaking 
also provides that tribal applicants include additional documentation 
that may be required by EPA to support the tribal application. Each TAS 
application will present its own set of legal and factual 
circumstances, and EPA anticipates that in some cases it may be 
necessary to request additional information when reviewing a tribe's 
application. Such requests would, for instance, generally relate to 
ensuring that the application contains sufficient complete information 
to address the required statutory and regulatory TAS criteria. This 
could include, for instance, information relating to a unique issue 
pertaining to the applicant tribe or its reservation or an issue 
identified during the comment process described below. Consistent with 
longstanding practice, the Agency would work with tribes in an 
appropriately streamlined manner to ensure that their TAS applications 
contain all necessary information to address applicable statutory and 
regulatory criteria. If a tribe has previously qualified for TAS under 
another EPA program, the tribe is only required to submit information 
that was not previously submitted as part of a prior TAS application.
    EPA is also proposing to describe EPA's procedures to review and 
process an application for section 401 TAS. See proposed 40 CFR 
121.11(c). Under this proposal, once EPA receives a complete tribal 
application, it will promptly notify the tribe of receipt and process 
the application in a timely manner. Within 30 days after receipt of the 
tribe's complete application for section 401 TAS, EPA shall provide 
notice to appropriate governmental entities \68\ of the application, 
including information on the substance of and basis for the tribe's 
assertion of authority to regulate reservation water quality. 
Appropriate

[[Page 35372]]

governmental entities will be given 30 days to provide comment on the 
tribe's assertion of authority. Consistent with prior practice 
regarding such notice in connection with TAS applications for other 
programs, EPA also intends to provide sufficiently broad notice (e.g., 
through local newspapers, electronic media, or other appropriate media) 
to inform other potentially interested entities of the applicant 
tribe's complete application and of the opportunity to provide relevant 
information regarding the tribe's assertion of authority. If the 
tribe's assertion of authority is challenged, EPA will determine 
whether the tribe has adequately demonstrated authority to regulate 
water quality on the reservation after considering all relevant 
comments received.
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    \68\ EPA defines the term ``appropriate governmental entities'' 
as ``States, tribes, and other Federal entities located contiguous 
to the reservation of the tribe which is applying for treatment as a 
State.'' 56 FR 64876, 64884 (December 12, 1991).
---------------------------------------------------------------------------

    However, if a tribe previously qualified for TAS for another 
program that also required a tribe to demonstrate authority to regulate 
reservation water quality (i.e., CWA section 303(c) program, CWA 
section 303(d) program, CWA section 402 program, or CWA section 404 
program) and EPA provided a notice and comment opportunity, the Agency 
would not require notice on the tribe's assertion of authority to 
appropriate governmental entities in the section 401 TAS application 
unless there were different jurisdictional issues or significant new 
factual or legal information relevant to jurisdiction. EPA thinks this 
approach could help streamline the process and avoid a potentially 
duplicative notice process. The Agency is proposing to apply this 
approach prospectively only, i.e., where the tribe obtains TAS for the 
CWA section 303(c), 402, or 404 programs after the effective date of 
this rule. In other words, if a tribe first gains TAS for another CWA 
regulatory program after this rule is finalized, and subsequently seeks 
TAS under this rule, additional notice and comment would not be 
required as part of the section 401 TAS application unless different 
jurisdictional issues or significant new factual or legal information 
relevant to jurisdiction are presented in the 401 application. If the 
Regional Administrator determines that a tribe's application meets the 
requirements proposed in Sec.  121.11(b), the Regional Administrator 
would promptly notify the tribe in writing. A decision by the Regional 
Administrator that a tribe does not meet the requirements proposed in 
Sec.  121.11(b) would not preclude the tribe from resubmitting the 
application at a future date. If the Regional Administrator determines 
that a tribal application is deficient or incomplete, EPA will identify 
such deficiencies and gaps so the tribe can make changes as appropriate 
and necessary.
    Promulgating a regulation expressly providing a process and 
requirements for section 401 TAS in the absence of 303(c) TAS is 
consistent with section 518 and would provide clarity and increased 
opportunities for interested tribes to participate in section 401. 
Additionally, developing regulations on section 401 TAS as a standalone 
process for tribes seeking this authority who are not concurrently 
applying for section 303(c) TAS may encourage more tribes to seek TAS 
for section 401. Decoupling section 401 TAS from section 303(c) 
recognizes that section 401 and section 303 administration are related, 
but distinct functions and is responsive to tribal stakeholders who 
have expressed an interest in participating in the section 401 
certification process. EPA is requesting comment on this more targeted 
proposed approach to obtaining TAS for section 401.
2. Obtaining TAS for Section 401(a)(2)
    If a tribe receives TAS for section 401, it is treated in a manner 
similar to a state and considered an ``authorized tribe'' for purposes 
of exercising its statutory authority under section 401. Generally, the 
Federal statutory and the proposed regulatory requirements for state 
water quality certification would apply to authorized tribes, including 
acting as a certifying authority and neighboring jurisdiction, as 
appropriate. However, EPA is also proposing regulatory language that 
would allow a tribe to apply for TAS for only the limited purpose of 
being a neighboring jurisdiction under section 401(a)(2). As noted 
above, prior Agency guidance and the 2020 Rule preamble expressed the 
interpretation that only tribes with TAS status may participate as a 
neighboring jurisdiction under section 401.\69\ This is because, unlike 
section 401(a)(1), which specifically requires EPA to act as a 
certifying authority on behalf of jurisdictions without the authority 
to certify,\70\ section 401(a)(2) only provides ``states'' with an 
opportunity to participate as a neighboring jurisdiction.
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    \69\ See 2010 Handbook (rescinded); 85 FR 42274.
    \70\ 33. U.S.C. 1341(a)(1) (``In any case where a State or 
interstate agency has no authority to give such a certification, 
such certification shall be from the Administrator.'')
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    Although 78 tribes have received TAS for section 401 to date, EPA 
recognizes that some tribes may not desire or have the resources to 
apply for the section 401 certification program. However, pre-proposal 
input suggests that tribes may wish to be notified about, and have the 
ability to object to and provide information regarding, potential 
Federal licenses and permits that may impact their waters. Several 
tribal stakeholders have expressed concern that tribes without TAS are 
not able to participate in the section 401(a)(2) neighboring 
jurisdiction process. In light of this input, EPA is proposing to 
provide tribes with an opportunity to seek TAS authorization for the 
limited purpose of being a neighboring jurisdiction pursuant to section 
401(a)(2).
    This approach has been taken in other EPA programs. For example, 
the Agency's regulations under the Clean Air Act provide opportunities 
for interested tribes to seek TAS authorization for reasonably 
severable elements of programs under that statute, so long as such 
elements are not integrally related to program elements that are not 
included and are consistent with applicable statutory and regulatory 
requirements. See 40 CFR 49.7(c). Under that authority, EPA has 
approved tribes for TAS authorization for the procedural comment 
opportunity provided in connection with issuance of certain permits by 
upwind permitting authorities, without requiring those tribes to seek 
authorization for the entire relevant program. See 42 U.S.C. 
7661d(a)(2).
    EPA thinks that the neighboring jurisdiction role under section 
401(a)(2) is similar. See discussion in section V.K in this 
preamble.\71\ EPA thinks it is appropriate to allow tribes wishing to 
protect their water quality interests under section 401(a)(2) to apply 
for and obtain TAS status to do so independently of whether they also 
desire to take on the separate responsibility to act pursuant to 
sections 401(a)(1) and 401(d). Nothing in the language of section 401 
precludes this approach.
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    \71\ Under section 401(a)(2), once EPA determines that a 
federally licensed or permitted discharge may affect the water 
quality of a neighboring jurisdiction, EPA must notify that 
neighboring jurisdiction. 33 U.S.C. 1341(a)(2). In turn, the 
neighboring jurisdiction has 60 days to evaluate the notice and 
determine whether the discharge will violate its water quality 
requirements, object to the issuance of the license or permit, and 
request a public hearing from the Federal licensing or permitting 
agency. Id. Ultimately, the Federal licensing or permitting agency 
is responsible for evaluating the neighboring jurisdiction's input, 
in addition to EPA's input and other input received at the public 
hearing, to determine whether it needs to condition the license or 
permit to assure that it will comply with the neighboring 
jurisdiction's water quality requirements. If conditions cannot 
assure such compliance, then the Federal agency may not issue the 
license or permit. Id.
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    Additionally, EPA thinks that the neighboring jurisdiction role 
under section 401(a)(2) is reasonably severable from the statute's 
other water quality certification activities. Section 401 provides 
separate and distinct roles for

[[Page 35373]]

certifying authorities and neighboring jurisdictions. As noted above, 
the statutory language expressly provides a role for states and EPA to 
act as certifying authorities in section 401(a)(1), but only provides a 
role for states to act as a neighboring jurisdiction in section 
401(a)(2). While both sections allow states and tribes with TAS status 
to inform the Federal licensing or permitting process, there are 
significant differences. For example, if a certifying authority places 
conditions on a Federal license or permit through a water quality 
certification, the Federal agency must incorporate those conditions 
into the license or permit. 33 U.S.C. 1341(d). However, if a 
neighboring jurisdiction objects to a Federal license or permit and 
recommends conditions it would like to see in the Federal license or 
permit, the Federal agency must consider that objection and recommended 
conditions as part of its broader analysis, but it is not required to 
incorporate them verbatim as required by section 401(d). Rather, the 
Federal agency is only required to impose a neighboring jurisdiction's 
recommended conditions to the extent they are necessary to assure 
compliance with the neighboring jurisdiction's applicable water quality 
requirements. Id. at 1341(a)(2).
    EPA thinks that authorizing tribes to obtain TAS solely for section 
401(a)(2) would allow tribes not interested in issuing their own 
certifications to have an opportunity to participate as a neighboring 
jurisdiction where discharges into another jurisdiction's waters may 
affect their own water quality. The proposed approach is responsive to 
stakeholder feedback and promotes tribal agency by providing an 
opportunity for tribes to protect their water quality by participating 
in the section 401 certification process without requiring the tribe to 
assume all of the authorities and responsibilities of section 401. EPA 
is soliciting comment on the proposed provisions, as well as comment on 
any alternative approaches.
    In section V.E in this preamble, EPA discussed the term ``any other 
appropriate requirement of State law.'' That discussion applies equally 
to tribal law for those tribes that obtain TAS status, either for 
section 401 in its entirely or only for section 401(a)(2). There is no 
reason to treat a tribe's laws differently than a state's laws with 
respect to their ability to form the legal basis for a certification 
decision or any conditions the tribe might find necessary to include in 
a certification. Once it attains TAS status, a tribe stands on equal 
footing with a state regarding its ability to carry out its functions 
under sections 401(a)(1), 401(d) and 401(a)(2). Accordingly, a tribe 
with TAS status under section 401(a)(2) may rely upon any of its water 
quality-related laws in deciding whether to issue a certification (or 
conditions) under sections 401(a)(1) and (d) or object to a Federal 
license or permit under section 401(a)(2).

M. Implementation Considerations

    EPA recognizes that both certifying authorities and Federal 
agencies have existing regulations addressing implementation of section 
401. For example, as discussed in section V.C in this preamble, the 
Agency is aware that some certifying authorities have regulations 
defining the contents of a request for certification. As a result of 
this rulemaking effort, certifying authorities may choose to modify 
their existing regulations if certain proposed provisions are finalized 
(e.g., they may choose to define the contents of a certification 
request in regulation instead of relying on EPA's proposed definition). 
Similarly, EPA is aware that the Corps, FERC, and EPA's NPDES program 
have separate section 401 implementation regulations addressing their 
respective licensing or permitting programs.\72\ EPA expects that 
Federal agencies with existing section 401 implementing regulations 
will evaluate their regulations and other guidance documents to ensure 
consistency with this regulation. EPA is requesting comment on the 
types of implementation materials that EPA should develop to assist 
Federal agencies and certifying authorities to implement any proposed 
or alternative provisions discussed throughout this preamble.
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    \72\ See e.g., 33 CFR 325.2 (water quality certification on 
section 404 permits); 18 CFR 4.34 (water quality certification on 
FERC hydropower licenses); 40 CFR 124.53 through 124.55 (water 
quality certification on EPA-issued NPDES permits).
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VI. Economic Analysis

    Pursuant to Executive Orders 12866 (Regulatory Planning and Review) 
and 13563 (Improving Regulation and Regulatory Review), EPA has 
prepared an economic analysis (EA) to inform the public of potential 
effects associated with this proposed rulemaking. This analysis is not 
required by the CWA.
    To support the proposed rulemaking, EPA prepared an EA and other 
related rule analyses to assess potential impacts of the rule. These 
analyses seek to evaluate the benefits and costs of the proposed 
rulemaking and the effects of the rule on vulnerable groups and small 
entities. The EA presents an overview of practice under the 1971 Rule 
and 2020 Rule (baselines),\73\ a description of the proposed changes, 
and an assessment of the potential impacts of the proposed rulemaking 
on project proponents, certifying authorities, and Federal agencies 
when transitioning from the baselines of regulatory practice to the new 
proposed requirements. Appendix A in the EA provides a plain-language 
comparison of the 1971 Rule, 2020 Rule, and proposed rulemaking 
provisions in a table format. Within the EA, the Agency included 
discussion of the environmental benefits and process costs with 
examples relative to the proposed rulemaking provisions. EPA also 
assessed environmental justice impacts of the proposed rulemaking on 
vulnerable communities and impacts on small entities. The Agency also 
prepared an Information Collection Request Supporting Statement which 
describes the overall burden of the section 401 regulations. See 
section VII.B in this preamble.
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    \73\ On October 21, 2021, the U.S. District Court for the 
Northern District of California issued an order remanding and 
vacating EPA's 2020 Rule. The vacatur was nationwide in scope, and 
the order required a temporary return to the 1971 Rule until EPA 
finalized a new certification rule. However, the U.S. Supreme Court 
issued a stay of the vacatur on April 6, 2022, which put the 2020 
Rule back in effect pending the Ninth Circuit and potential Supreme 
Court appeal. Due to the stay of the vacatur pending appeal, EPA 
considers two baselines in the economic analysis.
---------------------------------------------------------------------------

    Section 401 certification decisions have varying effects on 
certifying authorities and project proponents. However, the Agency has 
limited data regarding the number of certification requests submitted 
and the certification decisions taken on certification requests (i.e., 
whether the certification requests were granted, granted with 
conditions, denied, or waived). The Agency does not maintain a national 
database of certifying authority decisions and therefore did not have 
data available to perform a fully quantitative economic analysis. Given 
the absence of data related to section 401 regulations, EPA performed a 
qualitative analysis of the section 401 certification process under the 
1971 Rule, the 2020 Rule, and under the proposed rulemaking.The Agency 
reviewed information from several sources to characterize section 401 
baseline conditions and understand potential impacts of the proposed 
regulatory changes. Specifically, the Agency investigated state and 
territory websites and assembled available information concerning 
section 401 fees and certification decisions. EPA also conducted a 
focused review of pre-

[[Page 35374]]

proposal input letters \74\ to extract any information concerning 
economic impacts of section 401 and key issues identified during 
implementation of section 401. Within the EA, EPA describes the various 
Federal licenses and permits that require section 401 certification and 
the potential actions that certifying authorities may take pursuant to 
their section 401 authority. Additionally, the Agency summarized the 
annual number of licenses and permits that require section 401 
certification under different Federal authorities to determine the 
extent of licensing and permitting actions within the section 401 
universe. These types of information are used in the EA to describe 
implementation practices and trends under the baselines and serve as 
the basis for assessing impacts of the proposed rulemaking.
---------------------------------------------------------------------------

    \74\ Docket ID No. EPA-HQ-OW-2021-0302.
---------------------------------------------------------------------------

    In determining the potential effects of the proposed rulemaking, 
EPA described the impacts of rule revisions in several key areas 
including pre-filing meetings, contents of certification requests, time 
period for review, neighboring jurisdictions, and tribal provisions for 
implementing section 401. The 1971 Rule baseline did not include a pre-
filing meeting request requirement. However, because pre-filing 
meetings allow for early discussion of project details, such meetings 
would ultimately be expected to reduce burden elsewhere in the section 
401 certification process. The 2020 Rule does not provide certifying 
authorities with the option to waive or shorten the pre-filing meeting 
request requirement. The Agency anticipates that the proposed pre-
filing meeting request provision would provide flexibility for 
certifying authorities to decide whether to require pre-filing meeting 
requests and whether to hold pre-filing meetings based on project 
complexity and other factors. Relative to both the 1971 Rule and 2020 
Rule baselines, the Agency expects that the proposed requirement to 
include a copy of the draft license or permit with all requests for 
certifications would decrease the number of redundant and unnecessary 
certification conditions and increase the amount of relevant project-
specific information available to the certifying authority promoting a 
more efficient certification review process. Additionally, relative to 
the two baselines, the proposed changes concerning the reasonable time 
for certification review would balance equities between certifying 
authorities and Federal agencies and provide flexibility for certifying 
authorities and Federal agencies to determine the optimal length for 
the reasonable period of time or any extensions, provided they do not 
exceed one year from receipt. For example, the proposed rulemaking 
would allow certifying authorities to ensure that the reasonable period 
of time is informed by the size and complexity of the project, the 
certifying authority's available resources (e.g., staff size), and 
public notice and comment requirements. Allowing the certifying 
authority and Federal agency to negotiate a reasonable period of time 
at the beginning of the certification process (subject to a 60-day 
default) is also likely to improve the efficiency of the review 
process. The proposed rule also provides greater clarity regarding the 
process to protect neighboring jurisdiction waters (e.g., by specifying 
the contents of a notification from a Federal agency to EPA), which is 
also expected to increase its efficiency. This clarity and efficiency 
is expected when using the 1971 Rule as the baseline, as well as for 
the 2020 Rule baseline (though potentially to a lesser extent due to 
some updated provisions in the 2020 Rule). Neither the 1971 Rule nor 
the 2020 Rule included TAS provisions. Proposed revisions permitting 
tribes to obtain TAS solely for section 401 and, if desired, to only 
obtain TAS for the purpose of participating as neighboring 
jurisdictions under section 401(a)(2), would provide tribes with a 
greater ability to protect their water resources from the adverse 
effects of pollution from federally licensed or permitted projects.
    In some areas, the proposed rulemaking would revive practices that 
had been widely implemented for 50 years before the 2020 Rule. 
Specifically, the proposal would return the scope of a certifying 
authority's section 401 review as encompassing the ``activity as a 
whole,'' which is consistent with longstanding Agency and certifying 
authority practice and allows certifying authorities to protect their 
waters from the widest range of impacts. The Agency is proposing to put 
back a certification modification process, allowing certifying 
authorities and Federal agencies the flexibility to mutually agree on 
circumstances warranting modification. Provided that certification 
modification efforts are appropriately coordinated, the modification 
process under the proposed rulemaking would allow certifying 
authorities to adapt to changes in environmental and regulatory 
conditions, and provide needed flexibility to accommodate changed 
circumstances after issuance of a section 401 certification.
    EPA anticipates that the proposed rulemaking will enhance the 
ability of states and tribes to protect their water resources by 
clarifying key components of the water quality certification process 
and improving coordination between Federal agencies, certifying 
authorities, and project proponents. The Agency is seeking comment on 
the EA and information collection request, including the information 
used to inform the Agency's understanding of baseline conditions. 
Additionally, EPA is requesting comment on any additional data sources 
that can be used to characterize the baseline for section 401 
implementation and serve as the basis for understanding the potential 
impacts of any of these proposed regulatory changes.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders 
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review; Executive 
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted 
to the Office of Management and Budget (OMB) for review. Any changes 
made in response to OMB recommendations have been documented in the 
docket for this action. The Agency prepared an economic analysis of the 
potential benefits and costs associated with this action. This 
analysis, the Economic Analysis for the Proposed Rule, is available in 
the docket for this action and is briefly summarized in section VI in 
this preamble.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rulemaking 
have been submitted for approval to OMB under the PRA. The Information 
Collection Request (ICR) document that EPA prepared has been assigned 
EPA ICR number 2603.06. A copy of the ICR is included in the docket for 
this rule, and it is briefly summarized here.
    The information collected under section 401 is used by certifying 
authorities and EPA to evaluate potential water quality impacts from 
federally licensed or permitted projects. When states or tribes with 
TAS act as the certifying authority, the primary collection of this 
information is performed by the Federal agencies issuing the licenses 
or permits or the states and tribes acting as certifying authorities. 
When EPA acts as the

[[Page 35375]]

certifying authority or evaluates potential neighboring jurisdiction 
impacts, the information is collected by EPA. Information collected 
directly by EPA under section 401 in support of the section 402 NPDES 
program is already captured under existing ICR No. 0229.255 (OMB 
Control No. 2040-0004). The information collected under section 518(e) 
is used by EPA to determine whether a tribe is eligible for TAS for 
section 401 or section 401(a)(2). Information collected directly by EPA 
under section 518(e) in support of the process for tribes to obtain TAS 
for CWA section 303(c) and section 401 simultaneously is already 
captured under existing ICR No. 0988.14 (OMB Control No. 2040-0049).
    The proposed revisions clarify the nature of the information 
project proponents must include in a request for section 401 
certification. They also contain a pre-filing meeting request 
requirement for project proponents which may be waived or shortened by 
a certifying authority. The proposed revisions also provide tribes with 
the ability to obtain TAS solely for either section 401 or section 
401(a)(2). Total annual burden for respondents (project proponents and 
certifying authorities and tribes applying for TAS) are anticipated to 
be 861,274 hours with the associated annual labor costs being 
approximately $47 million. EPA expects that these proposed revisions 
will provide additional transparency in the certification modification 
and section 401(a)(2) contexts. EPA expects these proposed revisions to 
provide greater clarity regarding section 401 requirements, to reduce 
the overall preparation time spent by a project proponent on 
certification requests, and to reduce the review time for certifying 
authorities. EPA solicits comment on whether there are ways it can 
increase clarity, reduce the information collection burden, or improve 
the quality or utility of the information collected, or the information 
collection process itself, in furtherance of goals and requirements of 
section 401.
    In the interest of transparency, EPA is providing the following 
summary of the relevant portions of the burden assessment associated 
with EPA's existing certification regulations. EPA does not expect any 
measurable change in information collection burden associated with the 
proposed rulemaking changes.
    Respondents/affected entities: Project proponents, state and tribal 
reviewers (certifying authorities), tribes applying for TAS.
    Respondent's obligation to respond: Required to obtain section 401 
water quality certification; voluntary for tribes to apply for TAS.
    Estimated number of respondents: 154,006 responses from 72,125 
respondents annually.
    Frequency of response: Variable (one per Federal license or permit 
application, or only once) depending on type of information collected.
    Total estimated burden: 861,274 hours (per year). Burden is defined 
at 5 CFR 1320.3(b).
    Total estimated cost: $47 million (per year), includes $0 
annualized capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the 
accuracy of the provided burden estimates and any suggested methods for 
minimizing respondent burden to the EPA using the docket identified at 
the beginning of this rule. The EPA will respond to any ICR-related 
comments in the final rule. You may also send your ICR-related comments 
to OMB's Office of Information and Regulatory Affairs using the 
interface at www.reginfo.gov/public/do/PRAMain. Find this particular 
information collection by selecting ``Currently under Review--Open for 
Public Comments'' or by using the search function. OMB must receive 
comments no later than [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION 
IN THE FEDERAL REGISTER].

C. Regulatory Flexibility Act (RFA)

    I certify that this proposed rulemaking will not have a significant 
economic impact on a substantial number of small entities under the 
RFA. The small entities subject to the requirements of this action are 
small businesses applying for Federal licenses or permits subject to 
section 401 certification, which includes construction, manufacturing, 
mining, and utility businesses. Section 401 requires project proponents 
to obtain a water quality certification from the certifying authority 
where the potential discharge originates or will originate before it 
may obtain such Federal license or permit. Small entities are not 
subject to economic impacts from the proposed rule's requirements on 
certifying authorities, Federal agencies, or neighboring jurisdictions 
because small entities do not act in those roles under section 401.
    EPA is not able to quantify the impacts of the proposed rulemaking 
on small entities due to several data limitations and uncertainties, 
which are described within the Economic Analysis for the Proposed Rule, 
available in the docket for this rulemaking. However, EPA is including 
a qualitative assessment of the potential impacts of the proposed 
rulemaking on project proponents that are small entities in the 
Economic Analysis. Based on the qualitative analysis, the Agency has 
determined that some small entities may experience some impact from the 
proposed rulemaking but that the impact would not be significant. See 
the Economic Analysis for details of the qualitative analysis.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or 
more as described in UMRA, 2 U.S.C. 1531-1538, and does not 
significantly or uniquely affect small governments. While this action 
creates enforceable duties for the private sector, the cost does not 
exceed $100 million or more. This action does not create enforceable 
duties for state and tribal governments. See the Economic Analysis in 
the docket for further discussion on UMRA.

E. Executive Order 13132: Federalism

    Under the technical requirements of Executive Order 13132 (64 FR 
43255, August 10, 1999), EPA has determined that this proposed 
rulemaking does not have federalism implications but expects that this 
proposed rulemaking may be of significant interest to state and local 
governments.
    EPA is proposing updates to its CWA section 401 regulation to 
provide greater clarity and flexibility for certifying authorities in 
relation to acting on pre-filing meeting requests, contents of requests 
for certification, and acting within the reasonable period of time. EPA 
is also proposing to clarify the scope of Federal agency review of 
certification decisions; however, nothing in EPA's proposed rulemaking 
would preempt state law. These proposed regulatory clarifications and 
revisions will reinforce the authority granted to states by CWA section 
401 to protect their water quality, which had been exercised by the 
states prior to implementation of the 2020 Rule.
    Prior to proposing this rule, EPA solicited recommendations and 
conducted pre-proposal outreach, such as virtual listening sessions, 
where many state and local governments, intergovernmental associations, 
and other associations representing state and

[[Page 35376]]

local governments participated. Specifically, EPA hosted webinar-based 
listening sessions for pre-proposal input on June 14, June 15, June 23, 
and June 24, 2021, with over 400 participants from most states and a 
few territories. Furthermore, EPA accommodated requests for listening 
sessions with representatives from the Association of Clean Water 
Administrators, the Association of State Wetland Managers, the 
Environmental Council of the States, Western States Water Council, 
Indiana Department of Environmental Management, Maryland Department of 
the Environment, New Mexico Environmental Department, New York 
Department of Environmental Conservation, Oregon Department of 
Environmental Quality, Virginia Department of Environmental Quality, 
and Washington Department of Ecology. All pre-proposal input letters 
and summaries of the webinar-based listening sessions are available in 
Docket ID No. EPA-HQ-OW-2021-0302. These webinars, meetings, and input 
letters provided a wide and diverse range of interests, positions, and 
recommendations to the Agency. The pre-proposal feedback from 
certifying authorities covered eight of the issues the EPA identified 
in the Federal Register document. See 86 FR 29543-44. Generally, 
participants advocated for states to have increased authority and 
flexibility to determine the needs and requirements for certification 
requests. In addition, states asked EPA to clarify definitions and 
conveyed support for interim guidance and immediate relief as they 
continued to implement the 2020 Rule.
    After publishing this proposed rulemaking, EPA will conduct 
additional outreach and engagement with state and local government 
officials, or their representative national organizations, prior to 
finalizing a rule. All comment letters and recommendations received by 
EPA during the comment period from state and local governments will be 
included in the proposed rulemaking docket (Docket ID No. EPA-HQ-OW-
2022-0128).

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    This action may have implications for tribal governments. However, 
it will neither impose substantial direct compliance costs on federally 
recognized tribal governments, nor preempt tribal law. This action may 
change how tribes with TAS for section 401 administer the section 401 
program, but it will not have an administrative impact on tribes on 
whose behalf EPA issues certifications. As discussed in the preamble, 
EPA expects this proposal to expand and further clarify the 
opportunities for tribal participation in the CWA section 401 water 
quality certification process.
    EPA consulted with tribal officials under the EPA Policy on 
Consultation and Coordination With Indian Tribes early in the process 
of developing this proposed rulemaking to allow them to have meaningful 
and timely input into its development.
    The Agency initiated a tribal consultation and coordination process 
before proposing this rule by sending a ``Notification of Consultation 
and Coordination'' letter, dated June 7, 2021, to all 574 of the tribes 
federally recognized at that time (see Docket ID No. EPA-HQ-OW-2021-
0302). The letter invited tribal leaders and designated consultation 
representatives to participate in the tribal consultation and 
coordination process for this rulemaking. In addition to two national 
tribal webinars held on June 29 and July 7, 2021, the Agency convened 
other listening sessions, that tribal members and representatives 
attended, for certifying authorities and the public. EPA continued 
outreach and engagement with tribes and sought other opportunities to 
provide information and hear feedback from tribes at national and 
regional tribal meetings during and after the end of the consultation 
period. The Agency did not receive any consultation requests. All 
tribal and tribal organization letters and webinar feedback are 
included in the pre-proposal docket (Docket ID No. EPA-HQ-OW-2021-
0302), and a summary of the tribal consultation and coordination effort 
may be found in the docket for this action (Docket ID No. EPA-HQ-OW-
2022-0128).
    Many tribal feedback letters or meeting participants expressed an 
interest in receiving additional information and in continued 
engagement with the Agency during development of the proposed 
rulemaking; however, most of these tribal representatives highlighted 
other ongoing rulemakings that also required their engagement. Common 
themes expressed in the tribal feedback letters included the need for 
applicants to submit complete certification requests, expanding the 
scope of certifications, cooperative federalism, concerns about a 
Federal agency's unilateral ability to determine the reasonable period 
of time, and concerns about Federal agencies waiving certifying 
authority decisions. Feedback was relatively consistent across these 
stakeholders regardless of whether the feedback was from tribes having 
TAS or not.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that concern environmental health or safety risks 
that EPA has reason to believe may disproportionately affect children, 
per the definition of ``covered regulatory action'' in section 2-202 of 
the Executive order. This action is not subject to Executive Order 
13045 because it does not concern an environmental health risk or 
safety risk.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is 
not likely to have a significant adverse effect on the supply, 
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    This proposed rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high 
and adverse human health or environmental effects on minority 
populations, low-income populations and/or indigenous peoples, as 
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The 
documentation for this decision is contained in the Economic Analysis 
for the Proposed Rule, which can be found in the docket for this action 
and is briefly summarized in section VI in this preamble.
    The Agency recognizes that the burdens of environmental pollution 
disproportionately fall on population groups of concern (e.g., 
minority, low-income, and indigenous populations as specified in 
Executive Order 12898), and EPA is responsive to environmental justice 
concerns through multiple provisions in this proposal. The proposed 
pre-filing meeting request requirement provides a mechanism to ensure 
certifying authorities can request and receive information needed to 
protect their water resources and population groups of concern during 
early engagement. Additionally, the proposal to include a copy of the 
draft permit or license in a ``request for certification'' empowers 
certifying

[[Page 35377]]

authorities with more details upfront about the project to make a well-
informed decision that may affect population groups of concern, 
promoting environmental justice and transparency in the certification 
process. This also enables certifying authorities to share a greater 
level of detail with the public (including population groups of concern 
that may be impacted by a proposed project), so that participants in 
the public notice and comment process can provide better informed 
input.\75\ Under the proposed collaborative approach for determining 
the reasonable period of time, certifying authorities can take the 
needs of population groups of concern into account when determining the 
amount of time they need to review and evaluate the potential impacts 
of a proposed project on the communities' water resources (e.g., a 
certifying authority may suggest a longer reasonable period of time to 
facilitate outreach to population groups of concern or to conduct 
studies on a proposed project's impact on these communities). 
Additionally, the ``activity as a whole'' approach for scope of review 
has the potential to benefit population groups of concern by ensuring 
that the certifying authority can broadly review the potential water 
quality impacts on those communities. The proposed TAS provisions for 
section 401 as a whole or for section 401(a)(2) give tribes additional 
options to obtain TAS, as well as more opportunities to provide input 
and voice any water quality concerns during the certification process. 
Lastly, when EPA is acting as the certifying authority, the Agency is 
proposing to update the public notice provision to facilitate 
participation by the broadest number of potentially interested 
stakeholders, including population groups of concern. These proposed 
approaches and their responsiveness to environmental justice concerns 
is further discussed within the environmental justice section of the 
Economic Analysis.
---------------------------------------------------------------------------

    \75\ Under section 401(a)(1), a certifying authority is required 
to provide public notice on a request for certification.
---------------------------------------------------------------------------

List of Subjects

40 CFR Part 121

    Environmental protection, Administrative practice and procedure, 
Intergovernmental relations, Water pollution control.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous substances, Reporting and 
recordkeeping requirements, Water pollution control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure, 
Air pollution control, Hazardous waste, Indians-lands, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

Michael S. Regan,
Administrator.

    For the reasons set out in the preamble, EPA proposes to amend 40 
CFR parts 121, 122, and 124 as follows:

0
1. Revise part 121 to read as follows:

PART 121--STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL 
LICENSE OR PERMIT

Sec.
Subpart A--General
121.1 Definitions.
121.2 When certification is required.
121.3 Scope of certification.
121.4 Pre-filing meeting requests.
121.5 Request for certification.
121.6 Reasonable period of time.
121.7 Certification decisions.
121.8 Failure or refusal to act.
121.9 Federal agency review.
121.10 Modifications.
121.11 Requirements for Indian Tribes to administer a water quality 
certification program.
Subpart B--Neighboring Jurisdictions
121.12 Notification to the Regional Administrator.
121.13 Determination of effects on neighboring jurisdictions.
121.14 Neighboring jurisdiction objection and request for a public 
hearing.
121.15 Public hearing and Federal agency evaluation of neighboring 
jurisdiction objection.
Subpart C--Certification by the Administrator
121.16 When the Administrator certifies.
121.17 Public notice and hearing.
Subpart D--Review and Advice
121.18 Review and advice.

    Authority:  33 U.S.C. 1251 et seq.

Subpart A--General


Sec.  121.1  Definitions.

    As used in this part, the following terms shall have the meanings 
indicated:
    (a) Activity as a whole means any aspect of the project activity 
with the potential to affect water quality.
    (b) Administrator means the Administrator, Environmental Protection 
Agency (EPA).
    (c) Application means an application for a license or permit 
submitted to a Federal agency, or if available, the draft license or 
permit.
    (d) Certifying authority means the entity responsible for 
certifying compliance with applicable water quality requirements in 
accordance with Clean Water Act section 401.
    (e) Federal agency means any agency of the Federal Government to 
which application is made for a license or permit that is subject to 
Clean Water Act section 401.
    (f) Federal Indian Reservation, Indian reservation, or reservation 
means all land within the limits of any Indian reservation under the 
jurisdiction of the United States Government, notwithstanding the 
issuance of any patent, and including rights-of-way running through the 
reservation.
    (g) Indian Tribe or Tribe means any Indian Tribe, band, group, or 
community recognized by the Secretary of the Interior and exercising 
governmental authority over a Federal Indian Reservation.
    (h) License or permit means any license or permit issued or granted 
by an agency of the Federal Government to conduct any activity which 
may result in any discharge into waters of the United States.
    (i) Neighboring jurisdiction means any state, or tribe with 
treatment in a similar manner as a state for Clean Water Act section 
401 in its entirety or only for Clean Water Act section 401(a)(2), 
other than the jurisdiction in which the discharge originates or will 
originate.
    (j) Project proponent means the applicant for a license or permit 
or the entity seeking certification.
    (k) Receipt means the date that a request for certification, as 
defined by the certifying authority, is documented as received by a 
certifying authority in accordance with the certifying authority's 
applicable submission procedures.
    (l) Regional Administrator means the Regional designee appointed by 
the Administrator, Environmental Protection Agency.
    (m) Water quality requirements means any limitation, standard, or 
other requirement under sections 301, 302, 303, 306 and 307 of the 
Clean Water Act, any Federal and state or tribal laws or regulations 
implementing those sections, and any other water quality-related 
requirement of state or tribal law.


Sec.  121.2  When certification is required.

    Certification or waiver is required for any license or permit that 
authorizes an activity which may result in a discharge from a point 
source into a water of the United States.

[[Page 35378]]

Sec.  121.3  Scope of certification.

    When a certifying authority reviews a request for certification, it 
shall evaluate whether the activity as a whole will comply with all 
applicable water quality requirements.


Sec.  121.4  Pre-filing meeting requests.

    The project proponent shall request a pre-filing meeting from a 
certifying authority at least 30 days prior to submitting a request for 
certification in accordance with the certifying authority's applicable 
submission procedures, unless the certifying authority waives or 
shortens the requirement for a pre-filing meeting request.


Sec.  121.5  Request for certification.

    (a) A request for certification shall be in writing, signed, and 
dated and shall include a copy of the draft license or permit (unless 
legally precluded from obtaining a copy of the draft license or permit) 
and any existing and readily available data or information related to 
potential water quality impacts from the proposed project.
    (b) Where a project proponent is seeking certification from the 
Regional Administrator, a request for certification shall also include 
the additional contents identified in paragraph (c) of this section. 
Where a project proponent is seeking certification from a certifying 
authority other than the Regional Administrator, and that certifying 
authority has not identified in regulation additional contents of a 
request for certification, the project proponent shall submit a request 
for certification as defined in paragraph (c) of this section.
    (c) A request for certification submitted to the Regional 
Administrator shall include the following, if not already included in 
the draft license or permit:
    (1) The name and address of the project proponent;
    (2) The project proponent's contact information;
    (3) Identification of the applicable Federal license or permit, 
including Federal license or permit type, project name, project 
identification number, and a point of contact for the Federal agency;
    (4) Where applicable, a list of all other Federal, interstate, 
tribal, state, territorial, or local agency authorizations required for 
the proposed activity and the current status of each authorization; and
    (5) Documentation that a pre-filing meeting request was submitted 
to the certifying authority in accordance with applicable submission 
requirements, unless a pre-filing meeting request has been waived.
    (d) A certifying authority shall send written confirmation of the 
date of receipt of the request for certification to the project 
proponent and Federal agency.


Sec.  121.6  Reasonable period of time.

    (a) The reasonable period of time shall begin upon receipt of a 
request for certification.
    (b) The Federal agency and the certifying authority may, within 30 
days of receipt of a request for certification, jointly agree in 
writing to a reasonable period of time for the certifying authority to 
act on the request for certification, provided the reasonable period of 
time does not exceed one year from receipt.
    (c) If the Federal agency and the certifying authority do not agree 
on the length of a reasonable period of time within 30 days of receipt 
of a request for certification, the reasonable period of time shall be 
60 days. If a longer period of time is necessary to accommodate the 
certifying authority's public notice requirements or force majeure 
events (including, but not limited to, government closure or natural 
disasters), upon notification by the certifying authority prior to the 
end of the reasonable period of time, the reasonable period of time 
shall be extended by the period of time necessitated by public notice 
requirements or the force majeure event. In its notification, the 
certifying authority shall provide the Federal agency with a 
justification for such extension in writing. Such an extension may not 
exceed one year from receipt of the certification request.
    (d) The Federal agency and certifying authority, after consulting 
with the project proponent, may agree to extend the reasonable period 
of time in writing for any other reason, provided the reasonable period 
of time as extended does not exceed one year from receipt of the 
request for certification.


Sec.  121.7  Certification decisions.

    (a) A certifying authority may act on a request for certification 
in one of four ways: grant certification, grant certification with 
conditions, deny certification, or expressly waive certification.
    (b) A certifying authority shall act on a request for certification 
within the scope of certification, as defined at Sec.  121.3, and 
within the reasonable period of time, as determined pursuant to Sec.  
121.6.
    (c) A grant of certification by a certifying authority shall be in 
writing and include the following:
    (1) Name and address of the project proponent and identification of 
the applicable Federal license or permit; and
    (2) A statement that the activity as a whole will comply with water 
quality requirements.
    (d) A grant of certification with conditions by a certifying 
authority shall be in writing and include the following:
    (1) Name and address of the project proponent and identification of 
the applicable Federal license or permit;
    (2) Any conditions necessary to assure that the activity as a whole 
will comply with water quality requirements; and
    (3) A statement explaining why each of the included conditions is 
necessary to assure that the activity as a whole will comply with water 
quality requirements.
    (e) A denial of certification by a certifying authority shall be in 
writing and include the following:
    (1) Name and address of the project proponent and identification of 
the applicable Federal license or permit; and
    (2) A statement explaining why the certifying authority cannot 
certify that the activity as a whole will comply with water quality 
requirements.
    (f) An express waiver by a certifying authority shall be in writing 
and include the following:
    (1) Name and address of the project proponent and identification of 
the applicable Federal license or permit; and
    (2) A statement stating that the certifying authority expressly 
waives its authority to act on a request for certification.
    (g) If the certifying authority determines that no water quality 
requirements are applicable to the activity as a whole, the certifying 
authority shall grant certification.


Sec.  121.8  Failure or refusal to act.

    The certification requirement shall be waived if a certifying 
authority fails or refuses to act on a request for certification in 
accordance with Sec.  121.7(a) within the reasonable period of time, as 
defined at Sec.  121.6.


Sec.  121.9  Federal agency review.

    (a) To the extent a Federal agency reviews a certification decision 
for compliance with Clean Water Act section 401, its review is limited 
to evaluating whether:
    (1) The certification decision indicates whether it is a grant, 
grant

[[Page 35379]]

with conditions, denial, or express waiver;
    (2) The proper certifying authority issued the certification 
decision;
    (3) The certifying authority provided public notice on the request 
for certification; and
    (4) The certification decision was issued within the reasonable 
period of time, as defined at Sec.  121.6.
    (b) If a Federal agency determines that a certification decision 
does not meet the elements identified in paragraph (a)(1) or (3) of 
this section, the Federal agency shall notify the certifying authority 
and provide the certifying authority with an opportunity to ensure that 
its certification decision meets those elements. If necessary, the 
reasonable period of time shall be extended to provide the certifying 
authority with such an opportunity, but in no case shall the reasonable 
period of time exceed one year from the receipt of the certification 
request.
    (c) If a Federal agency determines that a certification decision 
does not meet the element identified in paragraph (a)(4) of this 
section, the Federal agency shall notify the certifying authority and 
project proponent in writing that the certification requirement has 
been waived in accordance with Sec.  121.8. Such notice shall satisfy 
the project proponent's obligations under Clean Water Act section 401.


Sec.  121.10  Modifications.

    (a) The certifying authority may not:
    (1) Revoke or modify a denial of certification;
    (2) Revoke or modify a waiver of certification;
    (3) Revoke a grant of certification (with or without conditions); 
or
    (4) Modify a grant of certification (with or without conditions) 
into a denial or waiver of certification.
    (b) Provided that the Federal agency and the certifying authority 
agree in writing that the certifying authority may modify a grant of 
certification (with or without conditions), the certifying authority 
may modify the agreed upon portions of the certification.


Sec.  121.11  Requirements for Indian Tribes to administer a water 
quality certification program.

    (a) The Regional Administrator may accept and approve a tribal 
application for purposes of administering a water quality certification 
program if the Tribe meets the following criteria:
    (1) The Indian Tribe is recognized by the Secretary of the Interior 
and meets the definitions in Sec.  121.1(f) and (g);
    (2) The Indian Tribe has a governing body carrying out substantial 
governmental duties and powers;
    (3) The water quality certification program to be administered by 
the Indian Tribe pertains to the management and protection of water 
resources that are within the borders of the Indian reservation and 
held by the Indian Tribe, within the borders of the Indian reservation 
and held by the United States in trust for Indians, within the borders 
of the Indian reservation and held by a member of the Indian Tribe if 
such property interest is subject to a trust restriction on alienation, 
or otherwise within the borders of the Indian reservation; and
    (4) The Indian Tribe is reasonably expected to be capable, in the 
Regional Administrator's judgment, of carrying out the functions of an 
effective water quality certification program in a manner consistent 
with the terms and purposes of the Clean Water Act and applicable 
regulations.
    (b) Requests by an Indian Tribe for administration of a water 
quality certification program should be submitted to the appropriate 
EPA Regional Administrator. The application shall include the following 
information, provided that where the Tribe has previously qualified for 
eligibility or ``treatment as a state'' under another EPA-administered 
program, the Tribe need only provide the required information that has 
not been submitted in a previous application:
    (1) A statement that the Tribe is recognized by the Secretary of 
the Interior.
    (2) A descriptive statement demonstrating that the tribal governing 
body is currently carrying out substantial governmental duties and 
powers over a defined area. The statement should:
    (i) Describe the form of tribal government;
    (ii) Describe the types of governmental functions currently 
performed by the tribal governing body such as, but not limited to, the 
exercise of police powers affecting (or relating to) the health, 
safety, and welfare of the affected population, taxation, and the 
exercise of the power of eminent domain; and
    (iii) Identify the source of the tribal government's authority to 
carry out the governmental functions currently being performed.
    (3) A descriptive statement of the Tribe's authority to regulate 
water quality. The statement should include:
    (i) A map or legal description of the area over which the Tribe 
asserts authority to regulate surface water quality; and
    (ii) A statement by the Tribe's legal counsel or equivalent 
official that describes the basis for the Tribe's assertion of 
authority and may include copies of documents such as tribal 
constitutions, by-laws, charters, executive orders, codes, ordinances, 
and/or resolutions that support the Tribe's assertion of authority.
    (4) A narrative statement describing the capability of the Indian 
Tribe to administer an effective water quality certification program. 
The narrative statement should include:
    (i) A description of the Indian Tribe's previous management 
experience that may include the administration of programs and services 
authorized by the Indian Self-Determination and Education Assistance 
Act (25 U.S.C. 450, et seq.), the Indian Mineral Development Act (25 
U.S.C. 2101, et seq.), or the Indian Sanitation Facility Construction 
Activity Act (42 U.S.C. 2004a);
    (ii) A list of existing environmental or public health programs 
administered by the tribal governing body and copies of related tribal 
laws, policies, and regulations;
    (iii) A description of the entity (or entities) which exercise the 
executive, legislative, and judicial functions of the tribal 
government;
    (iv) A description of the existing, or proposed, agency of the 
Indian Tribe which will assume primary responsibility for establishing 
and implementing a water quality certification program; and
    (v) A description of the technical and administrative capabilities 
of the staff to administer and manage an effective water quality 
certification program or a plan which proposes how the Tribe will 
acquire additional administrative and technical expertise. The plan 
must address how the Tribe will obtain the funds to acquire the 
administrative and technical expertise.
    (5) Additional documentation required by the Regional Administrator 
which, in the judgment of the Regional Administrator, is necessary to 
support a tribal application.
    (c) The procedure for processing a Tribe's application is as 
follows:
    (1) The Regional Administrator shall process an application of an 
Indian Tribe submitted pursuant to paragraph (b) of this section in a 
timely manner. The Regional Administrator shall promptly notify the 
Indian Tribe of receipt of the application.
    (2) Except as provided in paragraph (c)(4) of this section, within 
30 days after receipt of the Tribe's application, the Regional 
Administrator shall provide appropriate notice. The notice shall:

[[Page 35380]]

    (i) Include information on the substance and basis of the Tribe's 
assertion of authority to regulate the quality of reservation waters;
    (ii) Be provided to all appropriate governmental entities; and
    (iii) Provide 30 days for comments to be submitted on the tribal 
application. Comments shall be limited to the Tribe's assertion of 
authority.
    (3) If a Tribe's asserted authority is subject to a competing or 
conflicting claim, the Regional Administrator, after due consideration, 
and in consideration of other comments received, shall determine 
whether the Tribe has adequately demonstrated that it meets the 
requirements of paragraph (a)(3) of this section.
    (4) Where, after [EFFECTIVE DATE OF FINAL RULE], EPA has determined 
that a Tribe qualifies for treatment in a similar manner as a state for 
the Clean Water Act section 303(c) Water Quality Standards Program, 
Clean Water Act section 303(d) Impaired Water Listing and Total Maximum 
Daily Loads Program, Clean Water Act section 402 National Pollutant 
Discharge Elimination System Program, or Clean Water Act section 404 
Dredge and Fill Permit Program, and has provided notice and an 
opportunity to comment on the Tribe's assertion of authority to 
appropriate governmental entities as part of its review of the Tribe's 
prior application, no further notice to governmental entities, as 
described in paragraph (c)(2) of this section, shall be provided with 
regard to the same Tribe's application for the water quality 
certification program, unless the application presents to the EPA 
Regional Administrator different jurisdictional issues or significant 
new factual or legal information relevant to jurisdiction.
    (5) Where the Regional Administrator determines that a Tribe meets 
the requirements of this section, they shall promptly provide written 
notification to the Indian Tribe that the Tribe is authorized to 
administer the water quality certification program.
    (d) An Indian Tribe may submit a tribal application for purposes of 
administering only the Clean Water Act section 401(a)(2) portion of a 
water quality certification program.

Subpart B--Neighboring Jurisdictions


Sec.  121.12  Notification to the Regional Administrator.

    (a) Within five days of the date that it has received both the 
application and either a certification or waiver for a Federal license 
or permit, the Federal agency shall provide written notification to the 
Regional Administrator.
    (1) The notification shall include a copy of the certification or 
waiver and the application for the Federal license or permit.
    (2) The notification shall also contain a general description of 
the proposed project, including but not limited to, permit or license 
identifier, project location (e.g., latitude and longitude), a project 
summary including the nature of any discharge and size or scope of 
activity, and whether the Federal agency is aware of any neighboring 
jurisdiction providing comment about the project. If the Federal agency 
is aware that a neighboring jurisdiction provided comment about the 
project, it shall include a copy of those comments in the notification.
    (b) If the Regional Administrator determines there is a need for 
supplemental information to make a determination about potential 
neighboring jurisdiction effects pursuant to Clean Water Act section 
401(a)(2), the Regional Administrator may make a written request to the 
Federal agency that such information be provided in a timely manner for 
EPA's determination, and the Federal agency shall obtain that 
information from the project proponent and forward the additional 
information to the Administrator within such timeframe.
    (c) The Regional Administrator may enter into an agreement with a 
Federal agency regarding the manner of this notification process and 
the provision of supplemental information.


Sec.  121.13  Determination of effects on neighboring jurisdictions.

    (a) Within 30 days after the Regional Administrator receives notice 
in accordance with Sec.  121.12(a), the Regional Administrator shall 
determine whether a discharge from the certified or waived project may 
affect water quality in a neighboring jurisdiction.
    (b) If the Regional Administrator determines that the discharge 
from the project may affect water quality in a neighboring 
jurisdiction, within 30 days after receiving notice in accordance with 
Sec.  121.12(a), the Regional Administrator shall notify the 
neighboring jurisdiction, the certifying authority, the Federal agency, 
and the project proponent in accordance with paragraph (c) of this 
section.
    (c) Notification from the Regional Administrator shall be in 
writing and shall include:
    (1) A statement that the Regional Administrator has determined that 
a discharge from the project may affect the neighboring jurisdiction's 
water quality;
    (2) A copy of the license or permit application and related 
certification or waiver; and
    (3) A statement that the neighboring jurisdiction has 60 days to 
notify the Regional Administrator, the Federal agency, and the 
certifying authority, in writing, whether it has determined that the 
discharge will violate any of its water quality requirements, to object 
to the issuance of the Federal license or permit, and to request a 
public hearing from the Federal agency.
    (d) A Federal license or permit may not be issued pending the 
conclusion of the process described in Sec. Sec.  121.14 and 121.15.


Sec.  121.14  Neighboring jurisdiction objection and request for a 
public hearing.

    (a) If the neighboring jurisdiction determines that a discharge 
will violate any of its water quality requirements, within 60 days 
after receiving notice in accordance with Sec.  121.13(c), the 
neighboring jurisdiction shall notify the Regional Administrator, the 
Federal agency, and the certifying authority in accordance with 
paragraph (b) of this section.
    (b) Notification from the neighboring jurisdiction shall be in 
writing and shall include:
    (1) A statement that the neighboring jurisdiction objects to the 
issuance of the Federal license or permit;
    (2) An explanation of the reasons supporting the neighboring 
jurisdiction's determination that the discharge will violate its water 
quality requirements, including but not limited to, an identification 
of those water quality requirements that will be violated; and
    (3) A request for a public hearing from the Federal agency on its 
objection.


Sec.  121.15  Public hearing and Federal agency evaluation of 
neighboring jurisdiction objection.

    (a) Upon a request for hearing from a neighboring jurisdiction in 
accordance with Sec.  121.14(b), the Federal agency shall hold a public 
hearing on the neighboring jurisdiction's objection to the license or 
permit.
    (b) The Federal agency shall provide public notice at least 30 days 
in advance of the hearing.
    (c) At the hearing, the Regional Administrator shall submit to the 
Federal agency its evaluation and recommendation(s) concerning the 
objection.
    (d) The Federal agency shall consider recommendations from the 
neighboring jurisdiction and the Regional

[[Page 35381]]

Administrator, and any additional evidence presented to the Federal 
agency at the hearing, and determine whether additional license or 
permit conditions may be necessary to ensure that any discharge from 
the project will comply with the neighboring jurisdiction's water 
quality requirements. If such conditions may be necessary, the Federal 
agency shall include them in the license or permit.
    (e) If additional license or permit conditions cannot ensure that 
the discharge from the project will comply with the neighboring 
jurisdiction's water quality requirements, the Federal agency shall not 
issue the license or permit.

Subpart C--Certification by the Administrator


Sec.  121.16  When the Administrator certifies.

    (a) Certification or waiver by the Administrator is required where 
no state, tribe, or interstate agency has authority to give such a 
certification.
    (b) When acting pursuant to this section, the Administrator shall 
comply with the requirements of Clean Water Act section 401 and this 
part.


Sec.  121.17  Public notice and hearing.

    (a) Within 20 days of receipt of a request for certification, the 
Administrator shall provide public notice of receipt of a request for 
certification. Following such public notice, the Administrator shall 
provide an opportunity for public comment.
    (b) If the Administrator determines that a public hearing on a 
request for certification is appropriate or necessary, the 
Administrator shall schedule such hearing at an appropriate time and 
place and, to the extent practicable, give all interested and 
potentially affected parties the opportunity to present evidence or 
testimony in person or by other means.

Subpart D--Review and Advice


Sec.  121.18  Review and advice.

    Upon the request of any Federal agency, certifying authority, or 
project proponent, the Administrator shall provide any relevant 
information on applicable effluent limitations, or other limitations, 
standards, regulations, or requirements, or water quality criteria, and 
shall, when requested by any Federal agency, certifying authority, or 
project proponent, comment on any methods to comply with such 
limitations, standards, regulations, requirements, or criteria.

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT 
DISCHARGE ELIMINATION SYSTEM

0
2. The authority citation for part 122 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1251 et seq.

0
3. Section 122.4 is amended by revising paragraph (b) to read as 
follows:


Sec.  122.4  Prohibitions (applicable to State NPDES programs, see 
Sec.  123.25).

* * * * *
    (b) When the applicant is required to obtain a State or other 
appropriate certification under section 401 of the CWA and that 
certification has not been obtained or waived;
* * * * *
0
4. Section 122.44 is amended by revising paragraph (d)(3) to read as 
follows:


Sec.  122.44  Establishing limitations, standards, and other permit 
conditions (applicable to State NPDES programs, see Sec.  123.25).

* * * * *
    (d) * * *
    (3) Conform to the conditions in a State certification under 
section 401 of the CWA when EPA is the permitting authority;
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
5. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean 
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et 
seq.

0
6. Section 124.53 is amended by:
0
a. Removing paragraphs (b), (c), and (e);
0
b. Redesignating paragraph (d) as paragraph (b); and
0
c. Revising newly redesignated paragraph (b).
    The revision reads as follows:


Sec.  124.53  State certification.

* * * * *
    (b) State certification shall be granted or denied within the 
reasonable period of time as required under CWA section 401(a)(1). The 
State shall send a notice of its action, including a copy of any 
certification, to the applicant and the Regional Administrator.
0
7. Section 124.54 is amended by revising paragraphs (a) and (b) to read 
as follows:


Sec.  124.54  Special provisions for State certification and 
concurrence on applications for section 301(h) variances.

    (a) When an application for a permit incorporating a variance 
request under CWA section 301(h) is submitted to a State, the 
appropriate State official shall either:
    (1) Deny the request for the CWA section 301(h) variance (and so 
notify the applicant and EPA) and, if the State is an approved NPDES 
State and the permit is due for reissuance, process the permit 
application under normal procedures; or
    (2) Forward a copy of the certification required under CWA section 
401(a)(1) to the Regional Administrator.
    (b) When EPA issues a tentative decision on the request for a 
variance under CWA section 301(h), and no certification has been 
received under paragraph (a) of this section, the Regional 
Administrator shall forward the tentative decision to the State. If the 
State fails to deny or grant certification and concurrence under 
paragraph (a) of this section within the reasonable period of time 
provided in CWA section 401(a)(1), certification shall be waived and 
the State shall be deemed to have concurred in the issuance of a CWA 
section 301(h) variance.
* * * * *
0
8. Section 124.55 is amended by:
0
a. Revising paragraph (a);
0
b. Removing paragraph (b);
0
c. Redesignating paragraphs (c), (d), (e), and (f) as paragraphs (b), 
(c), (d), and (e) respectively; and
0
d. Revising newly redesignated paragraphs (b) and (c).
    The revisions read as follows:


Sec.  124.55  Effect of State certification.

    (a) When certification is required under CWA section 401(a)(1), no 
final permit shall be issued:
    (1) If certification is denied; or
    (2) Unless the final permit incorporates the conditions specified 
in the certification.
    (b) A State may not condition or deny a certification on the 
grounds that State law allows a less stringent permit condition.
    (c) A condition in a draft permit may be changed during agency 
review in any manner consistent with a corresponding certification. No 
such changes shall require EPA to submit the permit to the State for 
recertification.
* * * * *
[FR Doc. 2022-12209 Filed 6-8-22; 8:45 am]
BILLING CODE 6560-50-P


