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ENVIRONMENTAL PROTECTION Table of Contents Minority Populations and Low-Income AGENCY Populations I. General Information L. Congressional Review Act A. How can I get copies of this document 40 CFR Part 121 and related information? I. General Information B. What action is the Agency taking? [EPA–HQ–OW–2019–0405; FRL–10009–80– A. How can I get copies of this OW] C. Under what legal authority is this final rule issued? document and related information? RIN 2040–AF86 II. Background 1. Docket. An official public docket A. Executive Summary Clean Water Act Section 401 for this action has been established B. Executive Order 13868: Promoting under Docket ID No. EPA–HQ–OW– Certification Rule Energy Infrastructure and Economic Growth 2019–0405. The official public docket AGENCY: Environmental Protection C. Summary of Stakeholder Engagement consists of the documents specifically Agency (EPA). D. Guidance Document referenced in this action, and other ACTION: Final rule. E. Effect on Existing Federal, State, and information related to this action. The Tribal Laws official public docket is the collection of SUMMARY: The Environmental Protection F. Legal Background materials that is available for public Agency (EPA) is publishing this final 1. The Clean Water Act viewing at the OW Docket, EPA West, rule to update and clarify the 2. The EPA’s Role in Implementing Section Room 3334, 1301 Constitution Ave. NW, substantive and procedural 401 Washington, DC 20004. This Docket requirements for water quality 3. The EPA’s 1971 Certification Facility is open from 8:30 a.m. to 4:30 certification under Clean Water Act Regulations p.m., Monday through Friday, excluding (CWA or the Act) section 401. CWA 4. Judicial Interpretations of Section 401 legal holidays. The OW Docket section 401 is a direct grant of authority 5. Administrative Law Principles telephone number is 202–566–2426. A to States (and Tribes that have been 6. Response to Comments on the Legal Background reasonable fee will be charged for approved for ‘‘treatment as a State’’ G. Legal Construct for the Final Rule copies. status) to review for compliance with 1. Scope of Certification 2. Electronic Access. You may access appropriate federal, State, and Tribal 2. Timeline for Section 401 Certification this Federal Register document water quality requirements any Analysis electronically under the ‘‘Federal discharge into a water of the United III. Final Rule Register’’ listings at https:// States that may result from a proposed A. When Section 401 Certification is www.regulations.gov. An electronic activity that requires a federal license or Required version of the public docket is available permit. This final rule is intended to B. Pre-filing Meeting Request through the EPA’s electronic public increase the predictability and C. Certification Request/Receipt docket and comment system, the EPA timeliness of CWA section 401 D. Certification Actions E. Appropriate Scope for Section 401 Dockets. You may access the EPA certification actions by clarifying Certification Review Dockets at https://www.regulations.gov timeframes for certification, the scope of F. Timeframe for Certification Analysis and to view submitted public comments, certification review and conditions, and Decision access the index listing of the contents related certification requirements and G. Contents and Effects of Certification of the official public docket, and access procedures. H. Certification by the Administrator I. Determination of Effect on Neighboring those documents in the public docket DATES: This rule is effective on Jurisdictions that are available electronically. For September 11, 2020. J. The EPA’s Role in Review and Advice additional information about the EPA’s ADDRESSES: The EPA has established a K. Enforcement public docket, visit the EPA Docket docket for this action under Docket ID L. Modifications Center homepage at http:// No. EPA–HQ–OW–2019–0405, at M. General Licenses and Permits www.epa.gov/epahome/dockets.htm. https://www.regulations.gov. All IV. Economic Analysis Although not all docket materials may documents in the docket are listed and V. Statutory and Executive Order Reviews be available electronically, you may still available at https:// A. Executive Order 12866: Regulatory access any of the publicly available www.regulations.gov. Although listed in Planning and Review; Executive Order 13563: Improving Regulation and docket materials through the Docket the index, some information is not Regulatory Review Facility. publicly available, e.g. Confidential B. Executive Order 13771: Reducing B. What action is the Agency taking? Business Information or other Regulation and Controlling Regulatory information whose disclosure is Costs In this notice, the Agency is restricted by statute. Certain other C. Paperwork Reduction Act publishing a final rule updating the materials, such as copyrighted material, D. Regulatory Flexibility Act water quality certification regulations in is not placed on the internet and will be E. Unfunded Mandates Reform Act 40 CFR 121. publicly available only in hard copy F. Executive Order 13132: Federalism C. Under what legal authority is this form. Publicly available docket G. Executive Order 13175: Consultation and Coordination With Indian Tribal final rule issued? materials are available electronically Governments through https://www.regulations.gov. H. Executive Order 13045: Protection of The authority for this action is the FOR FURTHER INFORMATION CONTACT: Children From Environmental Health Federal Water Pollution Control Act, 33 Lauren Kasparek, Oceans, Wetlands, and Safety Risks U.S.C. 1251 et seq., including sections and Communities Division, Office of I. Executive Order 13211: Actions 304(h), 401, and 501(a). Concerning Regulations That Water (4504–T), Environmental II. Background Protection Agency, 1200 Pennsylvania Significantly Affect Energy Supply, Distribution, or Use A. Executive Summary Avenue NW, Washington, DC 20460; J. National Technology Transfer and telephone number: (202) 564–5700; Advancement Act Congress enacted section 401 of the email address: [email protected]. K. Executive Order 12898: Federal Actions CWA to provide States and authorized SUPPLEMENTARY INFORMATION: To Address Environmental Justice in Tribes with an important tool to help

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protect the water quality of federally conditions, or deny section 401 agencies additional clarity and regulated waters within their borders in certification has no legal force or effect. regulatory certainty. collaboration with federal agencies. Section 401 authorizes States and On April 10, 2019, the President Under section 401, a federal agency may Tribes to certify that a discharge into issued Executive Order 13868, entitled not issue a license or permit to conduct waters of the United States that may Promoting Energy Infrastructure and any activity that may result in any result from a proposed activity will Economic Growth (the Executive Order discharge into waters of the United comply with certain enumerated or Order), which directed the EPA to States,1 unless the State or authorized sections of the CWA, including the engage with States, Tribes, and federal Tribe where the discharge would effluent limitations and standards of agencies and update the Agency’s originate either issues a section 401 performance for new and existing outdated guidance and regulations, water quality certification finding discharge sources (sections 301, 302, including the 1971 certification compliance with applicable water and 306 of the CWA), water quality framework. Pursuant to the Executive quality requirements or certification is standards and implementation plans Order, on August 8, 2019, the EPA waived. As described in greater detail (section 303), and toxic pretreatment signed the proposed rule ‘‘Updating below, section 401 envisions a robust effluent standards (section 307). When Regulations on Water Quality State and Tribal role in the federal granting a section 401 certification, Certifications,’’ and the proposal was licensing or permitting proceedings, States and Tribes are directed by CWA published on August 22, 2019. 84 FR including those in which local authority section 401(d) to include conditions, 44080. The 60-day public comment may otherwise be preempted by federal including ‘‘effluent limitations and period for the proposal closed on law. Section 401 also places important other limitations, and monitoring October 21, 2019. Consistent with limitations on how that role may be requirements’’ that are necessary to Executive Order 13868 and the 1972 implemented to maintain an efficient assure that the applicant for a federal CWA amendments, this final rule process, consistent with the overall license or permit will comply with provides an updated common cooperative federalism construct applicable provisions of CWA sections framework that is consistent with the Act and which seeks to increase established by the CWA, as explained 301, 302, 306, and 307, and with ‘‘any predictability and timeliness. below in section II.F.1 of this notice. other appropriate requirement of State The following sections provide an Section 401 provides that a State or law.’’ authorized Tribe must act on a section overview of section 401, relevant court As the Agency charged with cases, outreach, and other actions that 401 certification request ‘‘within a 3 administering the CWA, as well as a inform today’s rule, as well as provides reasonable period of time (which shall certifying authority in certain instances, not exceed one year)’’.2 Section 401 responses to salient comments received the EPA is responsible for developing a on these topics. does not guarantee a State or Tribe a full common regulatory framework for year to act on a certification request, as certifying authorities to follow when B. Executive Order 13868: Promoting the statute only grants as much time as completing section 401 certifications. Energy Infrastructure and Economic is reasonable. 33 U.S.C. 1341(a)(1). The See 33 U.S.C. 1251(d), 1361(a). In 1971, Growth CWA provides that the timeline for the EPA promulgated regulations for The policy objective of the Executive action on a section 401 certification implementing the certification Order is to encourage greater investment begins ‘‘after receipt’’ of a certification provisions pursuant to section 21(b) of in energy infrastructure in the United request. Id. If a State or Tribe does not the Federal Water Pollution Control Act States by promoting efficient federal grant, grant with conditions, deny, or of 1948 (FWPCA), but the EPA has licensing and permitting processes and expressly waive the section 401 never updated those regulations to reducing regulatory uncertainty. The certification within a reasonable time reflect the 1972 amendments to the Executive Order identified the EPA’s period, section 401 states that the ‘‘the FWPCA (commonly known as the Clean outdated section 401 federal guidance certification requirements of this Water Act or CWA), which created and regulations as one source of subsection shall be waived with respect section 401, despite the fact that there confusion and uncertainty hindering the to such Federal application.’’ Id. If the were changes to the relevant statutory development of energy infrastructure. certification requirement has been text. Since the 1972 CWA amendments, Several commenters on the proposed waived and the federal license or permit the EPA issued two guidance rule argued that the EPA failed to is issued, any subsequent action by a documents and participated as amicus demonstrate that the rule would meet State or Tribe to grant, grant with curiae in court cases concerning CWA the objectives of the Executive Order section 401, but the Agency has not and the CWA, and they maintained that 1 The CWA, including section 401, uses updated its regulations to comport with Presidential policy objectives cannot ‘‘navigable waters,’’ defined as ‘‘waters of the override the CWA’s plain language and United States, including territorial seas.’’ 33 U.S.C. the 1972 amendments and has not, to 1362(7). This final rule uses ‘‘waters of the United date, established robust internal Supreme Court jurisprudence. One States’’ throughout. In January 2020, the EPA procedures for implementing its roles commenter stated that the EPA’s actions revised the definition of waters of the United States under section 401. Over the last several under this Executive Order were driven and expects the final definition of the term to by political considerations and the control in all CWA contexts. See 85 FR 22250 (April years, litigation over the section 401 21, 2020). certifications for several high-profile desire to undertake the rulemaking 2 In some circumstances, the EPA can act as the infrastructure projects have highlighted process as expeditiously as possible to certifying authority. See section III.H of this notice the need for the EPA to update its meet the President’s purportedly for further discussion. ‘‘If the State, interstate regulations to provide a common unlawful directions as stated in the agency, or Administrator, as the case may be, fails or refuses to act on a request for certification, framework for consistency with CWA Executive Order. within a reasonable period of time (which shall not section 401 and to give project Other commenters asserted that the exceed one year) after receipt of such request, the proponents, certifying authorities, and proposed rule is consistent with the certification requirements of this subsection shall federal licensing and permitting Executive Order. These commenters be waived with respect to such Federal application.’’ 33 U.S.C. 1341(a)(1); see also Hoopa appreciated the administration’s Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 3 The EPA co-administers section 404 with the recognition of the importance of energy 2019). Army Corps of Engineers (the Corps). infrastructure projects; the

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administration’s recognition of the account the federalism considerations the States, the Association of Clean economic impact the section 401 underlying section 401 and to consider Water Administrators, the Association process has had on some important the appropriate scope of water quality of State Wetland Managers, the National energy infrastructure projects; and the reviews and conditions, the scope of Tribal Water Council, and the National EPA’s review of the section 401 process. information needed to act on a Tribal Caucus identifying the Agency’s Such commenters supported the certification request in a reasonable interest in engaging in potential Executive Order’s goal of promoting period of time, and expectations for clarifications to the section 401 process. economic growth and supported the reasonable certification review times. The Agency discussed section 401 proposed rule’s attempts to protect Section 3.a. of Executive Order 13868, during several association meetings and interstate and foreign commerce from Promoting Energy Infrastructure and calls and received correspondence from unconstitutional discrimination and Economic Growth. Following the release several stakeholders between Fall 2018 unreasonable burdens and to clearly of the EPA’s new guidance document, and Spring 2019. Early stakeholder define the steps and timing for section the Executive Order directed the EPA to feedback received prior to the issuance 401 certifications. lead an interagency review of all of the Executive Order, the August 6, As discussed throughout this final existing federal regulations and 2018 letter described above, and the rule preamble, the Agency has guidance pertaining to section 401 to Agency’s presentations given between determined that the final rule ensure consistency with the EPA’s new Fall 2018 and Spring 2019, may be implements the fundamental statutory guidance and rulemaking efforts. The found in the pre-proposal objectives of the CWA, while also Executive Order directs all federal recommendations docket (Docket ID No. complying with the Executive Order. agencies to update their existing section EPA–HQ–OW–2018–0855). The Agency disagrees with commenters 401 guidance within 90 days after Following release of the Executive who asserted that the rulemaking publication of the EPA’s new guidance. Order, the EPA continued its effort to process was inappropriately initiated or Additionally, the Executive Order engage with States and Tribes on how inappropriately directed by the directs other federal agencies to initiate to increase clarity in the section 401 Executive Order. As noted above, the rulemaking, if necessary, within 90 days certification process, including creating EPA’s 1971 certification regulations 4 of the completion of the EPA’s a new website to provide information on (36 FR 22487, Nov. 25, 1971; rulemaking, to ensure that their own section 401 and notifying State redesignated at 37 FR 21441, October CWA section 401 regulations are environmental commissioners and 11, 1972; further redesignated at 44 FR consistent with the EPA’s new rules and Tribal environmental directors of a two- 32899, June 7, 1979) had not been with the Executive Order’s policy goals. part webinar series for States and updated since they were promulgated in Although the Executive Order focuses Tribes. See www.epa.gov/cwa-401. The 1971, pursuant to section 21(b) of the on section 401’s impact on the energy first webinar was held on April 17, FWPCA. Additionally, at the time the sector, section 401 applies broadly to 2019, and discussed the Executive Executive Order was issued, the EPA’s any proposed federally licensed or Order and the EPA’s next steps, and only guidance to the public on section permitted activity that may result in any solicited feedback from States and 401 implementation was an interim discharge into a water of the United Tribes consistent with the Executive handbook (now rescinded) entitled States. Therefore, updates to the EPA’s Order. Shortly thereafter, the EPA Clean Water Act Section 401 Water 1971 certification regulations and initiated formal consultation efforts Quality Certification: A Water Quality guidance are relevant to all water under Executive Order 13132 on Protection Tool for States and Tribes quality certifications, not just those Federalism with States and Executive (‘‘Interim Handbook’’), which had not related to energy sector projects. Order 13175 on Consultation and been updated since its release in 2010 Additional information on the EPA’s Coordination with Indian Tribal and therefore did not reflect the current State and Tribal engagement is provided Governments regarding provisions that case law interpreting CWA section 401. in section II.C of this notice, and require clarification within section 401 The Executive Order directed the EPA additional information on the EPA’s of the CWA and related federal to review CWA section 401 and the updated guidance document is provided regulations and guidance. The Agency EPA’s 1971 certification regulations and in section II.D of this notice. held an initial federalism consultation interim guidance, issue new guidance to meeting on April 23, 2019, and sent C. Summary of Stakeholder Engagement States, Tribes, and federal agencies notification of the consultation period to within 60 days of the Order, and On June 11, 2018, the Agency States and Tribes on April 24, 2019. propose (as appropriate and consistent published its 2018 Spring Unified Consultation ran through May 24, 2019, with law) new section 401 regulations Agenda of Regulatory and Deregulatory and the EPA opened a docket for pre- within 120 days of the Order. The Actions 5 announcing that the Agency proposal recommendations during this Executive Order also directed the EPA was considering, as a long-term action, time period (Docket ID No. EPA–HQ– to consult with States, Tribes, and the issuance of a notice soliciting public OW–2018–0855). On May 7, 2019, and relevant federal agencies while comment on whether the section 401 May 15, 2019, the EPA held Tribal reviewing its existing guidance and certification process would benefit from informational webinars, and on May 8, regulations to identify areas that would a rulemaking to promote nationwide 2019, the EPA held an informational benefit from greater clarity. consistency and regulatory certainty for webinar for both States and Tribes. See As part of this review, the Executive States, authorized Tribes, and sections V.F and V.G of this notice for Order directed the EPA to take into stakeholders. The Agency’s stakeholder further details on the Agency’s outreach and engagement efforts since federalism and Tribal consultations. 4 These regulations were redesignated in 1972 that announcement are summarized Questions and recommendations from and 1979 under the CWA, but no substantive below. the webinar attendees are available in change to the regulatory text has been made since On August 6, 2018, the Agency sent the pre-proposal docket (Docket ID No. 1971 notwithstanding changes to the relevant EPA–HQ–OW–2018–0855). statutory text in the 1972 CWA. Therefore, a letter to the Environmental Council of throughout this final rule preamble, the Agency During the consultation period, the refers to these regulatory provisions as the ‘‘1971 5 Available at https://www.reginfo.gov/public/do/ EPA participated in phone calls and in- certification regulations.’’ eAgendaViewRule?pubId=201804&RIN=2040-AF86. person meetings with inter-

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governmental and Tribal associations, on September 5 and 6, 2019, to hear D. Guidance Document including the National Governors feedback from individuals from Pursuant to the Executive Order, the Association and National Tribal Water regulated industry sectors, Agency released updated section 401 Council. The EPA also attended the EPA environmental and conservation guidance on June 7, 2019 (‘‘the 2019 Region 9 Regional Tribal Operations organizations, State agencies, Tribal Guidance’’), available at https:// Committee meeting on May 22, 2019, to governments, and private citizens. The www.epa.gov/cwa-401/clean-water-act- solicit recommendations for the EPA continued its engagement section-401-guidance-federal-agencies- rulemaking effort. The EPA engaged throughout the public comment period states-and-authorized-tribes. Coincident with federal agencies that issue licenses with States and Tribes through in- with the release of the 2019 Guidance, or permits subject to section 401, person meetings with representatives in the EPA rescinded the 2010 Interim including the United States Department Salt Lake City, Utah, and Chicago, Handbook on section 401 water quality of Agriculture, the Federal Energy Illinois. During these meetings, the certification. The Interim Handbook had Regulatory Commission (FERC), the U.S. Agency provided an overview of the not been updated or revised since its Army Corps of Engineers (Corps), the proposed rule, responded to clarifying release in 2010, had never been Alcohol and Tobacco Tax and Trade questions from participants, discussed finalized, and did not reflect current Bureau, the Nuclear Regulatory implementation considerations, and case law interpreting CWA section 401. Commission, and the Bureau of heard comments reflecting a range of The 2019 Guidance provided Reclamation through several meetings positions on the proposal and varying information and recommendations for and phone calls to gain additional interpretations of CWA section 401. A implementing the substantive and feedback from federal partners. transcript of the public hearing and procedural requirements of section 401, At the webinars and meetings, the related materials and summaries of the consistent with the areas of focus in the EPA provided a presentation and sought State and Tribal meetings can be found Executive Order. More specifically, the input on aspects of section 401 and the in the docket for the final rule. At the 2019 Guidance focused on aspects of the 1971 certification regulations that may request of individual Tribes, the EPA certification process, including the benefit from clarification or require also held staff-level and leader-to-leader timeline for review and decision-making updating, including timeframe, scope of meetings with those Tribes. certification review, and coordination A few commenters commended the and the appropriate scope of review and among certifying authorities, federal EPA for its outreach efforts during the conditions. Additionally, the 2019 licensing or permitting agencies, and rule development process. Other Guidance provided recommendations project proponents. The EPA also commenters asserted that the EPA held for how federal licensing and permitting requested input on issues and process an abbreviated public engagement agencies, States, and Tribes can better improvements for the Agency’s process. Some commenters asserted that coordinate to improve the section 401 consideration. Participant the EPA’s consultation efforts with certification process. The emphasis on recommendations from webinars, States, Tribes and local governments early coordination and collaboration to meetings, and the docket represent a during the rulemaking process were increase process efficiency aligns with diverse range of interests, positions, and inadequate. The Agency disagrees with other agency directives under Executive suggestions. Several themes emerged commenters that its consultation with Order 13807, Establishing Discipline throughout this process, including States or Tribes was inadequate. As and Accountability in the support for ongoing State and Tribal discussed in section II.C, section V.F, Environmental Review and Permitting engagement, support for retention of and section V.G of this notice, the Process for Infrastructure Projects, State and Tribal authority, and Agency consulted with States, Tribes, which established the ‘‘One Federal suggestions for process improvements and local governments throughout the Decision’’ policy. For major for CWA section 401 water quality rulemaking process. See also the infrastructure projects, Executive Order certifications. The EPA considered all of Agency’s response to comments 13807 directs federal agencies to use a this information and stakeholder input document in the docket for this final single, coordinated process for during development of the proposed rule for further response on the compliance with the National rule, including all recommendations Agency’s outreach efforts. Environmental Policy Act (NEPA), 42 submitted to the pre-proposal docket In developing the final rule, the EPA U.S.C. 4321 et seq., and emphasizes and feedback received prior to the reviewed and considered more than advance coordination to streamline initiation of, during, and after the formal 125,000 comments on the proposed rule federal permitting actions. consultation period. from a broad spectrum of interested Some commenters asserted the 2019 On August 8, 2019, the EPA signed parties. Commenters provided a wide Guidance is inconsistent with 50 years the proposed rule, ‘‘Updating range of feedback on various aspects of of practice and that it created confusion Regulations on Water Quality the proposal, including the legal basis and uncertainty. Other commenters Certifications,’’ and the proposal was for the proposed rule and the Agency’s disagreed with the 2019 Guidance’s published on August 22, 2019. 84 FR proposed definitions and certification limitations on timing of section 401 44080. The 60-day public comment procedures. Commenters also explained certifications and the scope of period for the proposal closed on their views on how the proposal may information that States may require to October 21, 2019. After signing the impact project proponents, certifying fully evaluate section 401 certification proposed rule, the EPA conducted a authorities, and federal licensing and requests. Several commenters stated that variety of stakeholder outreach permitting agencies. The Agency the 2019 Guidance was inappropriately engagements on the contents of the summarizes the most salient public issued prior to rulemaking and should proposed rule. For example, on August comments received on the proposed be withdrawn, and they asserted that 20, 2019, the EPA held a public webcast rule and provides responses in the either the Interim Handbook should be to present key elements of the proposed applicable sections of this final rule reinstated or the 2019 Guidance should rule (see https://www.youtube.com/ preamble. A separate response to be modified. Some commenters watch?v=eBI7Mj5ucyM comments document is also available in suggested that the issuance of the 2019 &feature=youtu.be). The EPA also held the docket for the final rule at Docket ID Guidance before rule finalization a public hearing in Salt Lake City, Utah, No. EPA–HQ–OW–2019–0405. indicates that the EPA has

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predetermined the outcome of the new guidance to facilitate regulations to ensure consistency with rulemaking process, contrary to the implementation of this final rule should the EPA’s final rule. Administrative Procedure Act (APA), the need arise. Certain commenters stated that the and therefore that the guidance should proposed rule would not be consistent E. Effect on Existing Federal, State, and be rescinded or superseded by new with existing State law, such as State Tribal Laws guidance consistent with the final rule. statutes or regulations regarding notice The Agency disagrees with According to the Executive Order, the and comment, completeness, impact commenters who asserted the 2019 EPA is to lead an interagency effort to and degradation avoidance, and Guidance was unnecessary. As review and examine existing federal mitigation. Many of these commenters discussed above and as outlined in the guidance and regulations ‘‘for were particularly concerned that Executive Order, the Interim Handbook consistency with EPA guidance and existing State-enacted procedures created regulatory uncertainty and rulemaking.’’ Section 3.d. of the require more information and time for confusion because it no longer reflected Executive Order provides that, within State certification review and action the current case law interpreting CWA 90 days after the EPA issues its final than provided by the proposed rule. A section 401, nor had it been updated or section 401 regulations, ‘‘if necessary, few commenters challenged the EPA’s finalized. The 2019 Guidance was the heads of each 401 implementing authority to dictate State procedures intended only to facilitate consistent Agency shall initiate a rulemaking to and stated that the EPA should provide implementation of section 401 and the ensure that their respective agencies’ flexibility for State regulatory 1971 certification regulations during regulations are consistent with’’ the procedures in this rulemaking. Several this rulemaking process, and the Agency EPA’s final section 401 regulations and commenters maintained that the disagrees with commenters who ‘‘the policies set forth in section 2 of proposed rule would require statutory suggested the 2019 Guidance reflected a [the Executive Order].’’ Pursuant to the and regulatory changes on the State predetermined outcome of this Executive Order, the other federal level and encouraged the EPA to give rulemaking process. The 2019 Guidance agencies that issue licenses or permits States sufficient time to adapt by addressed the appropriate timeline for a subject to the certification requirements providing an extended effective date for State’s or Tribe’s review and section 401 of section 401 are expected to ensure the new rule. One commenter asserted certification decision-making and the that any regulations governing their own that if States were not provided appropriate scope of a State’s or Tribe’s processing, disposition, and additional time to assess the new rule’s certification review and conditions enforcement of section 401 certifications impact on their State laws and based on the EPA’s 1971 certification are consistent with the EPA’s final regulations, the new rule could require regulations. The final rule, on the other regulations and the policies articulated the States to either violate their own hand, is based on the Agency’s holistic in section 2 of the Executive Order. The laws or deny more section 401 review of the 1972 statutory language, EPA engaged with other section 401 certifications, which could result in litigation and further delay for projects addresses a number of additional topics, implementing agencies before and after and reflects and responds to public subject to section 401. the proposed rule was issued, and the comments. Several commenters asserted that the EPA considered federal agency feedback Some commenters said the 2019 proposed rule would make State and Guidance should be retained but in developing the proposal and this Tribal section 401 programs less updated once the proposed rule is final rule. This final rule preamble efficient and would lead to national finalized. Other commenters stated the includes suggested recommendations inconsistency. Several commenters 2019 Guidance should be withdrawn for federal agencies as they update or asserted that the EPA’s interpretation of once the proposed rule is finalized. One draft their section 401 implementing the CWA and case law will result in commenter asserted that additional regulations. For instance, section legal challenges to the final rule, which guidance may be appropriate, but that III.F.2.a of this notice encourages federal would in turn lead to confusion and the need for guidance depends on the agencies to establish in their regulations delays in its implementation contrary to degree of clarity in the final rule. a minimum reasonable period of time the intent of the Executive Order. Coincident with issuing this final for State and Tribal action to provide Several commenters also indicated that rule, the EPA is rescinding the 2019 notice and regulatory certainty to because States may need to change their Guidance. The EPA continues to project proponents and certifying statutes and regulations in response to support and encourage the extent of authorities about applicable deadlines. the final rule, litigation will ensue over coordination recommended in the 2019 However, these are only those State changes resulting in further Guidance, including recommendations recommendations and the federal regulatory uncertainty, defeating the for project proponents, certifying agencies themselves must determine intent of the proposal to make the authorities, and federal licensing and how to update their own regulations to section 401 process more efficient. permitting authorities to engage in ensure consistency with this final rule The EPA has considered and substantive discussions as early as and efficient administration of their appreciates the concerns raised by these possible, and for all parties to operate in license and permit programs. For its commenters and is mindful that the lack good faith throughout the certification part, the EPA plans to review its of clear federal guidance and process. However, the EPA has National Pollutant Discharge implementation of CWA section 401 concluded that retaining the 2019 Elimination System (NPDES) following enactment of the 1972 CWA Guidance after issuing this final rule regulations to ensure its own permitting amendments has resulted in a could cause confusion. The Agency has program certification regulations are patchwork of State and Tribal programs determined that the final rule provides consistent with this final rule. with different timing, request, and sufficient additional specificity and In addition to conforming changes review requirements for water quality clarity on the issues discussed in the that federal agencies may make to certifications. However, the EPA’s 2019 Guidance to both meet the federal regulations that implement decades-long delay in promulgating expectations of the Executive Order and section 401, it is likely that States and section 401 implementing regulations render the 2019 Guidance unnecessary. Tribes will want to evaluate their does not undercut the EPA’s authority The EPA retains the option to develop existing certification statutes or and obligation to promulgate

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implementing regulations for this State regulations implementing section implementing the CWA and policy important CWA program. The EPA’s 401. One commenter observed that the considerations where necessary to delay in promulgating regulations also proposed rule would make the address certain ambiguities in the does not change the 1972 CWA regulations consistent with the intent of statutory text. The following sections amendment’s statutory language or the 1972 CWA amendments while describe the basic operational construct underlying congressional intent, nor allowing the States to retain their and history of the 1972 CWA does it allow for States or Tribes to primary roles in the section 401 water amendments, how section 401 fits implement water quality certification quality certification process. Some within that construct, and certain core programs that exceed the authority commenters stated the current administrative and legal principles that granted by Congress. regulations have allowed States to provide the foundation for this final The EPA acknowledges that some impose conditions beyond the rule. States and Tribes may update their appropriate scope set forth in the 1. The Clean Water Act regulations to be consistent with the statute, leading to lengthy delays in the procedural and substantive elements of certification process and resulting in a Congress amended the CWA 7 in 1972 this final rule. Regulatory consistency certification process that is ill-defined, to address longstanding concerns across federal, State, and Tribal confusing in scope, and lacking clear regarding the quality of the nation’s governments with respect to issues like deadlines. A number of commenters waters and the federal government’s timing, waiver, and scope of section 401 asserted that the proposed rule would ability to address those concerns under reviews and conditions would help promote regulatory certainty, help existing law. Prior to 1972, ensure that section 401 is implemented streamline the federal permitting responsibility for controlling and nationally in an efficient, effective, and process for critical infrastructure redressing water pollution in the transparent manner. Although such development, enhance the ability of nation’s waters largely fell to the Corps updates may have an initial burden on project proponents to plan for under the Rivers and Harbors Act of certifying authorities, they will construction, and facilitate early and 1899 (RHA). While much of that statute ultimately result in more efficient constructive engagement between focused on restricting obstructions to certification and federal permitting project proponents, States or authorized navigation on the nation’s major processes. The Agency will face a Tribes, and federal agencies to ensure waterways, section 13 of the RHA made similar task in updating its own NPDES that proposed projects will be protective it unlawful to discharge refuse ‘‘into any regulations after this final rule is of local water quality. navigable water of the United States, or published, but will similarly benefit The EPA acknowledges that although into any tributary of any navigable water from more efficient, effective and many certifications reflect an from which the same shall float or be transparent certification processes appropriately limited interpretation of washed into such navigable water.’’ 8 33 under updated regulations. Making the the purpose and scope of section 401 U.S.C. 407. Congress had also enacted rule effective 30 days after publication and are issued without controversy, the Water Pollution Control Act of 1948, in the Federal Register would be some certifying authorities have Public Law 80–845, 62 Stat. 1155 (June consistent with applicable law; implemented water quality certification 30, 1948), to address interstate water however, the Agency is establishing the programs that exceed the boundaries set pollution, and subsequently amended effective date 60 days after publication by Congress in section 401. After that statute in 1956 (giving the statute of the final rule in the Federal Register. considering all of the comments its current formal name), in 1961, and This additional time will allow EPA to received, the Agency has made several in 1965. The early versions of the CWA develop implementation materials for changes, described further below, to promoted the development of pollution States, Tribes and federal agencies, as provide greater clarity and regulatory abatement programs, required States to necessary or appropriate. The Agency certainty in the final rule. develop water quality standards, and stands ready to provide technical authorized the federal government to F. Legal Background assistance to States, Tribes, and federal bring enforcement actions to abate water agencies seeking to update their This final rule concludes the EPA’s pollution. certification procedures, guidance or first comprehensive effort to promulgate These earlier statutory frameworks, regulations. federal rules governing the however, proved challenging for By promulgating these long-overdue implementation of CWA section 401. regulators, who often worked backwards regulations, it is not the EPA’s intent The Agency’s 1971 water quality from an overly-polluted waterway to that States or Tribes violate either certification regulations pre-dated the determine which dischargers and which federal, State, or Tribal law pending 1972 CWA amendments. This final rule sources of pollution may be responsible. completion of updates to applicable therefore provides the EPA’s first See EPA v. State Water Resources State or Tribal law. The Agency is aware holistic analysis of the statutory text, Control Bd., 426 U.S. 200, 204 (1976). In that most if not all States have legislative history,6 and relevant case fact, Congress determined that the prior emergency rulemaking authorities that law informing the implementation of may help avoid such outcomes. the CWA section 401 program by the 7 The FWPCA has been commonly referred to as Furthermore, as States and Tribes enact Agency and its federal, State, and Tribal the CWA following the 1977 amendments to the FWPCA. Public Law 95–217, 91 Stat. 1566 (1977). conforming changes to their existing partners. The final rule, while focused For ease of reference, the Agency will generally laws, pursuant to section 401(b), the on the relevant statutory provisions and refer to the FWPCA in this notice as the CWA or EPA remains ready and willing to case law interpreting those provisions, the Act. provide any necessary technical is informed by the Agency’s expertise 8 The term ‘‘navigable water of the United States’’ is a term of art used to refer to a water subject to assistance. developed over nearly 50 years of federal jurisdiction under the RHA. See, e.g., 33 A few commenters supporting the CFR 329.1. The term is not synonymous with the proposed rule acknowledged the EPA’s 6 The EPA observes that some legislative history phrase ‘‘waters of the United States’’ under the desire to preserve State sovereignty and related to section 401 is internally inconsistent. CWA, see id., and the general term ‘‘navigable When interpreting section 401 for purposes of this waters’’ has different meanings depending on the principles of cooperative federalism rulemaking, the Agency has generally accorded context of the statute in which it is used. See, e.g., while at the same time creating greater such inconsistent and ambiguous legislative history PPL Montana, LLC v. Montana, 132 S. Ct. 1215, national consistency in both federal and less weight. 1228 (2012).

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statutes were inadequate to address the development and use . . . of land and term ‘‘pollutant’’ means ‘‘dredged spoil, decline in the quality of the nation’s water resources . . . .’’ Id. at 1251(b). solid waste, incinerator residue, sewage, waters, see City of Milwaukee v. Illinois, Congress also declared as a national garbage, sewage sludge, munitions, 451 U.S. 304, 310 (1981), so Congress policy that States manage the major chemical wastes, biological materials, performed a ‘‘total restructuring’’ and construction grant program and radioactive materials, heat, wrecked or ‘‘complete rewriting’’ of the existing implement the core permitting programs discarded equipment, rock, sand, cellar statutory framework of the Act in 1972, authorized by the statute, among other dirt and industrial, municipal, and id. at 317 (quoting legislative history of responsibilities. Id. Congress added that agricultural waste discharged into 1972 amendments). That restructuring ‘‘[e]xcept as expressly provided in this water.’’ Id. at 1362(6). Thus, it is resulted in the enactment of a Act, nothing in this Act shall . . . be unlawful to discharge pollutants into comprehensive scheme designed to construed as impairing or in any waters of the United States from a point prevent, reduce, and eliminate pollution manner affecting any right or source unless the discharge is in in the nation’s waters generally, and to jurisdiction of the States with respect to compliance with certain enumerated regulate the discharge of pollutants into the waters (including boundary waters) sections of the CWA, including by waters of the United States specifically. of such States.’’ Id. at 1370.9 Congress obtaining authorizations pursuant to the See, e.g., S.D. Warren Co. v. Maine Bd. also pledged to provide technical section 402 NPDES permit program or of Envtl. Prot., 547 U.S. 370, 385 (2006) support and financial aid to the States the section 404 dredged or fill material (‘‘[T]he Act does not stop at controlling ‘‘in connection with the prevention, permit program. See id. at 1342, 1344. the ‘addition of pollutants,’ but deals reduction, and elimination of Congress therefore intended to achieve with ‘pollution’ generally[.]’’). pollution.’’ Id. at 1251(b). the Act’s objective ‘‘to restore and The objective of the new statutory To carry out these policies, Congress maintain the chemical, physical, and scheme was ‘‘to restore and maintain broadly defined ‘‘pollution’’ to mean biological integrity of the Nation’s the chemical, physical, and biological ‘‘the man-made or man-induced waters’’ by addressing pollution of all integrity of the Nation’s waters.’’ 33 alteration of the chemical, physical, waters via non-regulatory means and U.S.C. 1251(a). In order to meet that biological, and radiological integrity of federally regulating the discharge of objective, Congress declared two water,’’ id. at 1362(19), to parallel the pollutants to the subset of waters national goals: (1) ‘‘that the discharge of broad objective of the Act ‘‘to restore identified as ‘‘navigable waters.’’ 10 pollutants into the navigable waters be and maintain the chemical, physical, Within the regulatory programs eliminated by 1985;’’ and (2) ‘‘that and biological integrity of the Nation’s established by the Act, two principal wherever attainable, an interim goal of waters.’’ Id. at 1251(a). Congress then components focus on ‘‘achieving water quality which provides for the crafted a non-regulatory statutory maximum ‘effluent limitations’ on protection and propagation of fish, framework to provide technical and ‘point sources,’ as well as achieving shellfish, and wildlife and provides for financial assistance to the States to acceptable water quality standards,’’ recreation in and on the water be prevent, reduce, and eliminate pollution and the development of the NPDES achieved by July 1, 1983 . . . .’’ Id. at in the nation’s waters generally. See, permitting program that imposes 1251(a)(1)–(2). e.g., id. at 1256(a) (authorizing the EPA specific discharge limitations for Congress established several key to issue ‘‘grants to States and to regulated entities. EPA v. State Water policies that direct the work of the interstate agencies to assist them in Resources Control Bd., 426 U.S. at 204. Agency to effectuate those goals. For administering programs for the Together these components provide a example, Congress declared as a prevention, reduction, and elimination framework for the Agency to focus on national policy ‘‘that the discharge of of pollution’’); see also 84 FR 56626, toxic pollutants in toxic amounts be 10 Fundamental principles of statutory 56632 (Oct. 22, 2019) (discussing non- prohibited; . . . that Federal financial interpretation support the Agency’s recognition of regulatory program provisions); 85 FR assistance be provided to construct a distinction between ‘‘nation’s waters’’ and 22250, 22253 (April 21, 2020) (same). ‘‘navigable waters.’’ As the Supreme Court has publicly owned waste treatment works; In addition to the Act’s non-regulatory observed, ‘‘[w]e assume that Congress used two . . . that areawide waste treatment terms because it intended each term to have a measures to control pollution of the particular, nonsuperfluous meaning.’’ Bailey v. management planning processes be nation’s waters, Congress created a developed and implemented to assure United States, 516 U.S. 137, 146 (1995) (recognizing federal regulatory program designed to the canon of statutory construction against adequate control of sources of pollutants address the discharge of pollutants into superfluity). Further, ‘‘the words of a statute must in each State; . . . [and] that programs be read in their context and with a view to their a subset of those waters identified as for the control of nonpoint sources of place in the overall statutory scheme.’’ FDA v. ‘‘the waters of the United States.’’ See Brown & Williamson Tobacco Corp., 529 U.S. 120, pollution be developed and 33 U.S.C. 1362(7). Section 301 contains 133 (2000) (internal quotation marks and citation implemented in an expeditious manner the key regulatory mechanism: ‘‘Except omitted); see also United Savings Ass’n v. Timbers so as to enable the goals of this Act to of Inwood Forest Associates, 484 U.S. 365, 371 as in compliance with this section and be met through the control of both point (‘‘Statutory construction . . . is a holistic endeavor. sections 302, 306, 307, 318, 402, and A provision that may seem ambiguous in isolation and nonpoint sources of pollution.’’ Id. 404 of this Act, the discharge of any is often clarified by the remainder of the statutory at 1251(a)(3)–(7). scheme—because the same terminology is used Congress provided a major role for the pollutant by any person shall be elsewhere in a context that makes its meaning States in implementing the CWA, unlawful.’’ Id. at 1311(a). A ‘‘discharge clear[.]’’) (citation omitted). The non-regulatory balancing the traditional power of States of a pollutant’’ is defined to include sections of the CWA reveal Congress’ intent to ‘‘any addition of any pollutant to restore and maintain the integrity of the nation’s to regulate land and water resources waters using federal assistance to support state and within their borders with the need for navigable waters from any point local partnerships to control pollution in the a national water quality regulation. For source,’’ such as a pipe, ditch or other nation’s waters in addition to a federal regulatory prohibition on the discharge of pollutants into the example, the statute highlighted ‘‘the ‘‘discernible, confined and discrete conveyance.’’ Id. at 1362(12), (14). The navigable waters. If Congress intended the terms to policy of the Congress to recognize, be synonymous, it would have used identical preserve, and protect the primary terminology. Instead, Congress chose to use 9 responsibilities and rights of States to 33 U.S.C. 1370 also prohibits states with EPA- separate terms, and the Agency is instructed by the approved CWA programs from adopting any Supreme Court to presume Congress did so prevent, reduce, and eliminate limitations, prohibitions, or standards that are less intentionally. For further discussion, see 84 FR at pollution’’ and ‘‘to plan the stringent than required by the CWA. 56632 and 85 FR at 22253.

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reducing or eliminating discharges Under section 401, a federal agency may ‘‘objective’’ of the CWA to ‘‘restore and while creating accountability for each not issue a license or permit for an maintain the chemical, physical, and regulated entity that discharges into a activity that may result in a discharge biological integrity of the Nation’s waterbody, facilitating greater into waters of the United States, unless waters,’’ id. at 1251(a), while enforcement and overall achievement of the appropriate authority provides a implementing the specific ‘‘policy’’ the CWA water quality goals. Id.; see section 401 certification or waives its directives from Congress to, among Oregon Natural Desert Association v. ability to do so. The authority to certify other things, ‘‘recognize, preserve, and Dombeck, 172 F.3d 1092, 1096 (9th Cir. a federal license or permit lies with the protect the primary responsibilities and 1998) (observing that 1972 amendments agency (the certifying authority) that has rights of States to prevent, reduce, and ‘‘largely supplanted’’ earlier versions of jurisdiction over the location of the eliminate pollution’’ and ‘‘to plan the CWA ‘‘by replacing water quality discharge to the receiving water of the development and use . . . of land and standards with point source effluent United States. Id. at 1341(a)(1). water resources.’’ Id. at 1251(b); see also limitations’’). Examples of federal licenses or permits Webster’s II, New Riverside University Under this statutory scheme, the potentially subject to section 401 Dictionary (1994) (defining ‘‘policy’’ as States 11 are authorized to assume certification include, but are not limited a ‘‘plan or course of action, as of a program authority for issuing section to, CWA section 402 NPDES permits in government[,] designed to influence and 402 and 404 permits within their States where the EPA administers the determine decisions and actions;’’ an borders, subject to certain limitations. permitting program; CWA section 404 ‘‘objective’’ is ‘‘something worked 33 U.S.C. 1342(b), 1344(g). States are and RHA sections 9 and 10 permits toward or aspired to: Goal’’). The also responsible for developing water issued by the Corps; bridge permits quality standards for ‘‘waters of the issued by the U.S. Coast Guard (USCG); Agency therefore recognizes a United States’’ within their borders and and hydropower and pipeline licenses distinction between the specific word reporting on the condition of those issued by the Federal Energy Regulatory choices of Congress, which reflect the waters to the EPA every two years. Id. Commission (FERC). need to develop regulatory programs at 1313, 1315. States must develop total Under section 401, a certifying that aim to accomplish the goals of the maximum daily loads (TMDLs) for authority may grant, grant with Act while implementing the specific waters that are not meeting established conditions, deny, or waive certification policy directives of Congress. For CWA water quality standards and must in response to a request from a project further discussion of these principles, submit those TMDLs to the EPA for proponent. The certifying authority see 84 FR 56638–39 and 85 FR at approval. Id. at 1313(d). And, central to determines whether the potential 22269–70. this final rule, States under CWA discharge from the proposed activity Congress’ authority to regulate section 401 have authority to grant, will comply with the applicable navigable waters, including waters grant with conditions, deny, or waive provisions of sections 301, 302, 303, subject to CWA section 401 water water quality certifications for every 306, and 307 of the CWA and any other quality certification, derives from its federal license or permit issued within appropriate requirement of state law. Id. power to regulate the ‘‘channels of their borders that may result in a Certifying authorities may also add to a interstate commerce’’ under the discharge into waters of the United certification ‘‘any effluent limitations Commerce Clause. Gibbons v. Ogden, 22 States. Id. at 1341. These same and other limitations, and monitoring U.S. (9 Wheat.) 1 (1824); see also United regulatory authorities can be assumed requirements’’ necessary to assure States v. Lopez, 514 U.S. 549, 558–59 by Indian Tribes under section 518 of compliance. Id. at 1341(d). These (1995) (describing the ‘‘channels of the CWA, which authorizes the EPA to additional provisions must become interstate commerce’’ as one of three treat eligible Tribes with reservations in conditions of the federal license or areas of congressional authority under a similar manner to States (referred to as permit should it be issued. Id. A the Commerce Clause). The Supreme ‘‘treatment as States’’ or TAS) for a certifying authority may deny Court explained in Solid Waste Agency variety of purposes, including certification if it is unable to determine of Northern Cook County v. U.S. Army administering the principal CWA that the discharge from the proposed Corps of Engineers (SWANCC) that the regulatory programs. Id. at 1377(e). In activity will comply with the applicable term ‘‘navigable’’ indicates ‘‘what addition, States and Tribes retain sections of the CWA and appropriate Congress had in mind as its authority authority to protect and manage the use requirements of state law. If a certifying of those waters that are not waters of the authority denies certification, the for enacting the Clean Water Act: Its United States under the CWA. See, e.g., federal license or permit may not be traditional jurisdiction over waters that id. at 1251(b), 1251(g), 1370, 1377(a). issued. Id. at 1341(a)(1). A certifying were or had been navigable in fact or In enacting section 401, Congress authority may waive certification by which could reasonably be so made.’’ recognized that where States and Tribes ‘‘fail[ing] or refus[ing] to act on a request 531 U.S. 159, 172 (2001). The Court do not have direct permitting authority for certification, within a reasonable further explained that nothing in the (because they do not have section 402 period of time (which shall not exceed legislative history of the Act provides or 404 program authorization or where one year) after receipt of such request.’’ any indication that ‘‘Congress intended Congress has preempted a regulatory Id. to exert anything more than its field, e.g., under the Federal Power Act), With the exception of section 401, the commerce power over navigation.’’ Id. they may still play a valuable role in EPA has promulgated regulatory at 168 n.3. The Supreme Court, protecting the water quality of federally programs designed to ensure that the however, has recognized that Congress regulated waters within their borders in CWA is implemented as Congress intended ‘‘to exercise its powers under collaboration with federal agencies. intended in the 1972 CWA.12 This the Commerce Clause to regulate at least includes pursuing the overall some waters that would not be deemed 11 The CWA defines ‘‘state’’ as ‘‘a State, the ‘navigable’ under the classical District of Columbia, the Commonwealth of Puerto 12 As noted in section II.F.3 of this notice, the understanding of that term.’’ United Rico, the Virgin Islands, Guam, American Samoa, EPA’s 1971 certification regulations were States v. Riverside Bayview Homes, 474 the Commonwealth of the Northern Mariana promulgated prior to the 1972 CWA Amendments Islands, and the Trust Territory of the Pacific and had not been updated to reflect the current U.S. 121, 133 (1985); see also SWANCC, Islands.’’ 33 U.S.C. 1362(3). statutory text until this final rule was developed. 531 U.S. at 167.

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The classical understanding of the recognized the distinction between federal encroachment upon a traditional term navigable was first articulated by waters subject to federal authority, state power.’’ Id. at 173; see also Will v. the Supreme Court in The Daniel Ball: traditionally understood as navigable, Michigan Dept. of State Police, 491 U.S. Those rivers must be regarded as public and those waters ‘‘subject to the control 58, 65 (1989) (‘‘[I]f Congress intends to navigable rivers in law which are navigable of the States.’’ The Daniel Ball, 77 U.S. alter the ‘usual constitutional balance in fact. And they are navigable in fact when (10 Wall.) 557, 564–65 (1870). Over a between the States and the Federal they are used, or are susceptible of being century later, the Supreme Court in Government,’ it must make its intention used, in their ordinary condition, as SWANCC reaffirmed the States’ to do so ‘unmistakably clear in the highways of commerce, over which trade and ‘‘traditional and primary power over language of the statute.’ ’’) (quoting travel are or may be conducted in the Atascadero State Hospital v. Scanlon, customary modes of trade and travel on land and water use.’’ 531 U.S. at 174. water. And they constitute navigable waters Ensuring that States retain authority 473 U.S. 234, 242 (1985)); Gregory v. of the United States within the meaning of over their land and water resources Ashcroft, 501 U.S. 452, 461 (1991) the Acts of Congress, in contradistinction helps carry out the overall objective of (‘‘[The] plain statement rule . . . from the navigable waters of the States, when the CWA and ensures that the Agency acknowledg[es] that the States retain they form in their ordinary condition by is giving full effect and consideration to substantial sovereign powers under our themselves, or by uniting with other waters, the entire structure and function of the constitutional scheme, powers with a continued highway over which commerce Act. See, e.g., Hibbs v. Winn, 542 U.S. which Congress does not readily is or may be carried on with other States or interfere’’). This means that the foreign countries in the customary modes in 88, 101 (2004) (‘‘A statute should be which such commerce is conducted by water. construed so that effect is given to all its executive branch’s authority under the provisions, so that no part will be CWA, while broad, is not unlimited, 77 U.S. (10 Wall.) 557, 563 (1871). inoperative or superfluous, void or and the waters to which CWA Over the years, this traditional test has insignificant.’’) (citation omitted); see regulatory programs apply must been expanded to include waters that also Rapanos v. United States, 547 U.S. necessarily respect those limits. For had been used in the past for interstate 715, 755–56 (2006) (Scalia, J., plurality) further discussion of these principles, commerce, see Economy Light & Power (‘‘[C]lean water is not the only purpose see 84 FR 56655 and 85 FR at 22264. Co. v. United States, 256 U.S. 113, 123 of the statute. So is the preservation of See section II.F.6 of this final rule (1921), and waters that are susceptible primary state responsibility for ordinary preamble for a summary of public for use with reasonable improvement, land-use decisions. 33 U.S.C. 1251(b).’’) comments and Agency responses on see United States v. Appalachian Elec. (original emphasis). interstate commerce. Power Co., 311 U.S. 377, 407–10 (1940). In some cases, CWA section 401 By the time the 1972 CWA In summary, Congress relied on its denials have been challenged on amendments were enacted, the Supreme authority under the Commerce Clause grounds that the denial improperly Court had held that Congress’ authority when it enacted the CWA and intended interfered with interstate commerce. over the channels of interstate to assert federal authority over more See, e.g., Lighthouse Resources, Inc. v. commerce was not limited to regulation than just waters traditionally Inslee, No. 3:18–cv–5005, Complaint at of the channels themselves but could understood as navigable, but it limited ¶¶ 206–210; ¶¶ 224–248 (W.D. Wash. extend to activities necessary to protect the exercise of that authority to ‘‘its filed Jan. 8, 2018) (alleging that State’s the channels. See Oklahoma ex rel. commerce power over navigation.’’ denial of section 401 certification Phillips v. Guy F. Atkinson Co., 313 U.S. SWANCC, 531 U.S. at 168 n.3. The violated dormant Commerce Clause and 508, 523 (1941) (‘‘Congress may exercise Court in SWANCC found that ‘‘[r]ather dormant foreign Commerce Clause). In its control over the non-navigable than expressing a desire to readjust the Lake Carriers Association v. EPA, 652 stretches of a river in order to preserve federal-state balance [in a manner that F.3d 1 (D.C. Cir. 2011), the court of or promote commerce on the navigable would result in a significant appeals found that the section 401 portions.’’). The Supreme Court also had impingement of the States’ traditional statutory scheme of delegation of clarified that Congress could regulate and primary power over land and water authority to States, by itself, does not waterways that formed a part of a use], Congress chose [in the CWA] to create an impermissible burden on channel of interstate commerce, even if ‘recognize, preserve, and protect the interstate commerce; however, the court they are not themselves navigable or do primary responsibilities and rights of signaled that certain actions taken by not cross State boundaries. See Utah v. States . . . to plan the development and States pursuant to section 401 could be United States, 403 U.S. 9, 11 (1971). use . . . of land and water resources subject to dormant Commerce Clause Congress therefore intended to assert . . .’’ Id. at 174 (quoting 33 U.S.C. challenges. 652 F.3d at 10 (‘‘If federal regulatory authority over more 1251(b)). The Court found no clear [petitioners] believe that the than just waters traditionally statement from Congress that it had certification conditions imposed by any understood as navigable, while rooting intended to permit federal particular state pose an inordinate that authority in ‘‘its commerce power encroachment on traditional State burden on their operations, they may over navigation.’’ SWANCC, 531 U.S. at power and construed the CWA to avoid challenge those conditions in that state’s 168 n.3. the significant constitutional questions courts. If [petitioners] believe that a The EPA recognizes and respects the related to the scope of federal authority particular state’s law imposes an primary responsibilities and rights of authorized therein. Id. at 173–74. That unconstitutional burden on interstate States to regulate their land and water is because the Supreme Court has commerce, they may challenge that law resources, as reflected in CWA section instructed that ‘‘[w]here an in federal (or state) court.’’). 101(b). 33 U.S.C. 1251(b), see also id. at administrative interpretation of a statute 1370. The oft-quoted objective of the invokes the outer limits of Congress’ 2. The EPA’s Role in Implementing CWA to ‘‘restore and maintain the power, we expect a clear indication that Section 401 chemical, physical, and biological Congress intended that result.’’ Id. at The EPA, as the federal agency integrity of the Nation’s waters,’’ id. at 172. The Court has further stated that charged with administering the CWA, is 1251(a), must be implemented in a this is particularly true ‘‘where the responsible for developing regulations manner consistent with Congress’ policy administrative interpretation alters the and guidance to ensure effective directives. The Supreme Court long ago federal-state framework by permitting implementation of all CWA programs,

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including section 401.13 In addition to requires the EPA to submit its limitations and other enumerated administering the statute and evaluation and recommendations with regulatory provisions of the Act. 33 promulgating implementing regulations, respect to the objection. The federal U.S.C. 1341(a) (emphasis added). The the Agency has several other roles under agency will consider the jurisdiction’s 1972 amendments also established a section 401. and the EPA’s recommendations, and new section 401(d), which provides that The EPA acts as the section 401 any additional evidence presented at the certifications ‘‘shall set forth any certification authority under two hearing, and ‘‘shall condition such effluent limitations and other circumstances. First, the EPA will license or permit in such manner as may limitations, and monitoring certify on behalf of a State or Tribe be necessary to insure compliance with requirements necessary to assure’’ where the jurisdiction in which the the applicable water quality compliance with the same enumerated discharge will originate does not itself requirements’’ of the neighboring CWA provisions and with ‘‘any other have certification authority. 33 U.S.C. jurisdiction. Id. If the conditions cannot appropriate requirement’’ of State or 1341(a)(1). In practice, this results in the ensure compliance, the federal agency Tribal law. 33 U.S.C. 1341(d). EPA certifying on behalf of the many shall not issue the license or permit. The EPA first promulgated water Tribes that do not have TAS authority The EPA also must provide technical quality certification regulations in 1971 for section 401. Second, the EPA will assistance for section 401 certifications to implement section 21(b) of the act as the certifying authority where the upon the request of any federal or State FWPCA.15 Some operative provisions of discharge would originate on lands of agency or project proponent. Id. at the EPA’s 1971 certification regulations exclusive federal jurisdiction.14 1341(b). Technical assistance might contain language from section 21(b) of The EPA also notifies neighboring include provision of any relevant the FWPCA that Congress changed in jurisdictions when the Administrator information on or comment on methods the 1972 amendments. For example, the determines that a discharge may affect to comply with applicable effluent EPA’s 1971 certification regulations the quality of such jurisdictions’ waters. limitations, standards, regulations, directed authorities to certify that ‘‘the Id. at 1341(a)(2). Although section 401 requirements, or water quality activity will be conducted in a manner certification authority lies with the standards. which will not violate applicable water jurisdiction where the discharge Finally, the EPA is responsible for quality standards.’’ 40 CFR 121.2(a)(2)– originates, a neighboring jurisdiction developing regulations and guidance to (3) (emphasis added). These outdated whose water quality is potentially ensure effective implementation of all provisions do not reflect the language of affected by the discharge may have an CWA programs, including section 401. section 401 (as discussed elsewhere in opportunity to raise objections to a Legislative history indicates that this preamble) and have caused certification issued for a federal license Congress created the water quality confusion for States, Tribes, certification requirement to ‘‘recognize[ ] or permit. Where the EPA Administrator stakeholders, and courts reviewing the responsibility of Federal agencies to determines that a discharge subject to section 401 certifications. In section protect water quality whenever their section 401 ‘‘may affect’’ the water 304(h) of the CWA, Congress activities affect public waterways.’’ S. quality of a neighboring jurisdiction, the commanded the EPA to promulgate Rep. No. 91–351, at 3 (1969). ‘‘In the EPA is required to notify that other certification guidelines within 180 days past, these [Federal] licenses and jurisdiction. Id. If the neighboring of enactment of the 1972 amendments. permits have been granted without any jurisdiction determines that the See 33 U.S.C. 1314(h) (directing EPA to assurance that the [water quality] discharge ‘‘will affect’’ the quality of its ‘‘promulgate,’’ by April 1973, standards will be met or even waters in violation of a water quality ‘‘guidelines establishing test procedures considered.’’ Id. As an example, the requirement of that jurisdiction, it may legislative history discusses the Atomic for the analysis of pollutants that shall notify the EPA and the federal licensing Energy Commission’s failure to consider include the factors which must be or permitting agency of its objection to the impact of thermal pollution on provided in any certification pursuant the license or permit. Id. It may also receiving waters when evaluating ‘‘site to section 401 of this Act’’). Yet the EPA request a hearing on its objection with selection, construction, and design or has not updated its certification the federal licensing or permitting operation of nuclear powerplants.’’ Id. regulations to conform with the 1972 agency. At such a hearing, section 401 The certification requirement first amendments until now. A primary goal appeared in section 21(b) of the for this final rule is to update and clarify 13 See 33 U.S.C. 1251(d) (‘‘Except as otherwise FWPCA, and it required States to certify the Agency’s regulations to ensure that expressly provided in this chapter, the they are consistent with the CWA. Administrator of the Environmental Protection that ‘‘such activity will be conducted in Agency . . . shall administer this chapter.’’); id. at a manner which will not violate 3. The EPA’s 1971 Certification 1361(a); Mayo Found. for Medical Educ. and Res. applicable water quality standards.’’ Regulations v. United States, 562 U.S. 44, 45 (2011); Hoopa Public Law 91–224, 21(b)(1), 84 Stat. 91 Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. The EPA’s 1971 certification 2019); Ala. Rivers Alliance v. FERC, 325 F.3d 290, (1970) (emphasis added). As described 296–97 (D.C. Cir. 2003); Cal. Trout v. FERC, 313 above, the 1972 amendments regulations required certifying F.3d 1131, 1133 (9th Cir. 2002); Am. Rivers, Inc. v. restructured the CWA and created a authorities to act on a certification FERC, 129 F. 3d 99, 107 (2d Cir. 1997). framework for compliance with effluent request within a ‘‘reasonable period of 14 The federal government may obtain exclusive limitations that would be established in time.’’ 40 CFR 121.16(b). The federal jurisdiction over lands in multiple ways, regulations provided that the federal including where the federal government purchases discharge permits issued pursuant to the lands consistent with article 1, section 8, clause 17 new federal permitting program. The licensing or permitting agency of the U.S. Constitution and a state chooses to cede pre-existing water quality certification jurisdiction to the federal government, or where the 15 The EPA’s 1971 certification regulations were federal government reserved jurisdiction upon requirement was retained in section 401 located at 40 CFR part 121. The EPA has also granting statehood. See Collins v. Yosemite Park of the 1972 amendments but modified to promulgated regulations addressing how 401 Co., 304 U.S. 518, 529–30 (1938); James v. Dravo be consistent with the overall certification applies to the CWA section 402 NPDES Contracting Co., 302 U.S. 134, 141–42 (1937); restructuring of the CWA. The new program, found at 40 CFR 124.53, 124.54, 124.55. Surplus Trading Co. v. Cook, 281 U.S. 647, 650–52 See 48 FR 14264 (Apr. 1, 1983). This final rule does (1930); Fort Leavenworth Railroad Co. v. Lowe, 114 section 401 required a water quality not address the NPDES regulations, and the Agency U.S. 525, 527 (1895). Examples of lands of exclusive certification to assure that the will make any necessary conforming regulatory federal jurisdiction include Denali National Park. ‘‘discharge will comply’’ with effluent changes in a subsequent rulemaking.

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determines what constitutes a The 1971 certification regulations forwarded to the Regional Administrator ‘‘reasonable period,’’ and that the period identified a number of requirements that by the licensing or permitting agency no shall generally be six months but in any all certifying authorities must include in later than 30 days prior to the hearing. event shall not exceed one year. Id. a section 401 certification. Id. at 121.2. Id. at 121.15. At the hearing, the The 1971 certification regulations also For example, the regulations provided Regional Administrator was required to provided that certifying authorities may that a section 401 certification shall submit an evaluation and waive the certification requirement include the name and address of the ‘‘recommendations as to whether and under two circumstances: First, when project proponent. Id. at 121.2(a)(2). under what conditions the license or the certifying authority sends written They also provided that the certification permit should be issued.’’ Id. notification expressly waiving its shall include a statement that the The 1971 certification regulations authority to act on a request for certifying authority examined the established that the Regional certification; and second, when the application made by the project Administrator ‘‘may, and upon request federal licensing or permitting agency proponent to the federal licensing or shall’’ provide federal licensing and sends written notification to the EPA permitting agency and bases its permitting agencies with information Regional Administrator that the certification upon an evaluation of the regarding water quality standards and certifying authority failed to act on a application materials which are relevant advise them as to the status of certification request within a reasonable to water quality considerations or that it compliance by dischargers with the period of time after receipt of such a examined other information sufficient to conditions and requirements of request. Id. at 121.16(a)–(b). Once permit the certifying authority to make applicable water quality standards. Id. waiver occurs, certification is not a statement that there is a ‘‘reasonable at 121.30. required, and the federal license or assurance that the activity will be permit may be issued. 33 U.S.C. 1341(a). conducted in a manner which will not Finally, the 1971 certification The 1971 certification regulations violate applicable water quality regulations established an oversight role established different requirements that standards.’’ Id. at 121.2(a)(2)–(3). for the EPA when a certifying authority applied when the EPA was the Finally, the regulations provided that modified a prior certification. The certifying authority, including specific the certification shall state ‘‘any regulation provided that a certifying information that must be included in a conditions which the certifying agency authority could modify its certification certification request and additional deems necessary or desirable with ‘‘in such manner as may be agreed upon procedures. Under these requirements, respect to the discharge of the activity,’’ by the certifying agency, the licensing or the project proponent was required to and other information that the certifying permitting agency, and the Regional submit to the EPA Regional authority deems appropriate.17 Id. at Administrator.’’ Id. at 121.2(b) Administrator the name and address of 121.2(a)(4)–(5). (emphasis added). the project proponent, a description of The 1971 certification regulations also As noted throughout this final rule the facility or activity and of any related established a process for the EPA to preamble, the EPA’s 1971 certification discharge into waters of the United provide notification to neighboring regulations were promulgated prior to States, a description of the function and jurisdictions in a manner that is similar the 1972 CWA amendments and in operation of wastewater treatment to that provided in CWA section many respects do not reflect the current equipment, dates on which the activity 401(a)(2). Under the 1971 certification statutory language in section 401. In and associated discharge would begin regulations, the Regional Administrator addition, the EPA’s 1971 certification and end, and a description of the was required to review the federal regulations do not address some methods to be used to monitor the license or permit application, the important procedural and substantive quality and characteristics of the certification, and any supplemental components of section 401 certification discharge. 40 CFR 121.22. Once the information provided to the EPA by the review and action. This final rule is request was submitted to the EPA, the federal licensing or permitting agency, intended to modernize the EPA’s Regional Administrator was required to and if the Regional Administrator regulations, align them with the current provide public notice of the request and determined that there was ‘‘reason to an opportunity to comment, specifically text and structure of the CWA, and believe that a discharge may affect the provide additional regulatory stating that ‘‘all interested and affected quality of the waters of any State or parties will be given reasonable procedures that the Agency believes States other than the State in which the will help promote consistent opportunity to present evidence and discharge originates,’’ the Regional testimony at a public hearing on the implementation of section 401 and Administrator would notify each streamline federal license and permit question whether to grant or deny affected State within thirty days of certification if the Regional processes, consistent with the objectives receipt of the application materials and of the Executive Order. Administrator determines that such a certification. Id. at 121.13. If the hearing is necessary or appropriate.’’ Id. documents provided were insufficient 4. Judicial Interpretations of Section 401 at 121.23. If, after consideration of to make the determination, the Regional relevant information, the Regional During the 48 years since its passage, Administrator could request any the federal courts on numerous Administrator determined that there is supplemental information ‘‘as may be ‘‘reasonable assurance that the proposed occasions have interpreted key required to make the determination.’’ Id. provisions of section 401. The United activity will not result in a violation of at 121.12. In cases where the federal applicable water quality standards,’’ the States Supreme Court has twice licensing or permitting agency held a addressed questions related to the scope Regional Administrator would issue the public hearing on the objection raised certification.16 Id. at 121.24. and triggering mechanism of section by a neighboring jurisdiction, notice of 401, and lower courts also have such objection was required to be 16 Use of the terms ‘‘reasonable assurance’’ and addressed certain elements of section ‘‘activity’’ in this operative provision of the EPA’s 401 certifications. This section of the 1971 certification regulations was consistent with pre-1972 language. See Public Law 91–224, 21(b)(1), section 21(b) of the pre-1972 statutory language. 84 Stat. 91 (1970). preamble summarizes the U.S. Supreme However, those terms are not used in the operative 17 The term ‘‘desirable’’ is also not used in CWA Court decisions and major lower court provision of CWA section 401, which replaced the section 401. decisions.

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a. U.S. Supreme Court Decisions 1971 certification regulations at 40 CFR § 401(a)(1)—the provision that describes i. PUD No. 1 of Jefferson County 121.2(a)(3); quoted the EPA’s guidance the scope and function of the titled Wetlands and 401 Certification; certification process—was wasted In 1994, the Supreme Court reviewed and stated that ‘‘EPA’s conclusion that effort,’’ and that the majority’s a water quality certification issued by activities—not merely discharges—must conclusion ‘‘effectively eliminates the the State of Washington for a new comply with state water quality constraints of § 401(a)(1).’’ 511 U.S. at hydroelectric project on the Dosewallips standards is a reasonable interpretation 726 (Thomas, J., dissenting). The dissent River. See PUD No. 1 of Jefferson of § 401 and is entitled to deference.’’ then ‘‘easily reconciled’’ the two County v. Washington Dep’t of Ecology, 511 U.S. at 712 (citing, inter alia, provisions by concluding that ‘‘it is 511 U.S. 700 (1994) (PUD No. 1). This Chevron U.S.A. Inc. v. Natural reasonable to infer that the conditions a particular decision, though narrow in its Resources Defense Council, Inc., 467 State is permitted to impose on holding, has been read by other courts U.S. 837 (1984)). certification must relate to the very as well as the EPA (in past years) and The Court was careful to note that a purpose the certification process is some States and Tribes to significantly State’s authority to condition a designed to serve. Thus, while section broaden the scope of section 401 beyond certification ‘‘is not unbounded’’ and 401(d) permits a State to place its plain meaning. that States ‘‘can only ensure that the conditions on a certification to ensure The principal dispute adjudicated in project complies with ‘any applicable compliance of ‘the applicant,’ those PUD No. 1 was whether a State or Tribe effluent limitations and other conditions must still be related to may require a minimum stream flow as limitations, under [33 U.S.C. 1311, discharges.’’ Id. at 726–27. The dissent a condition in a certification issued 1312]’ or certain other provisions of the further noted that each of the CWA under section 401. In this case, the Act, ‘and with any other appropriate provisions enumerated in section 401 project proponent identified two requirement of State Law.’ ’’ 511 U.S. at ‘‘describes discharge-related potential discharges from its proposed 712. The Court concluded that ‘‘state limitations’’ and therefore that the plain hydroelectric facility: ‘‘the release of water quality standards adopted language of section 401(d) supports the dredged and fill material during pursuant to § 303 are among the ‘other construction of the project, and the conclusion that certification conditions limitations’ with which a State may must address water quality concerns discharge of water at the end of the ensure compliance through the § 401 tailrace after the water has been used to from the discharge, not the proposed certification process’’ and noted that its activity as a whole. Id. at 727. Finally, generate electricity.’’ 511 U.S. at 711. view ‘‘is consistent with EPA’s view of The project proponent argued that the the dissent applied the principle the statute,’’ again citing the EPA’s pre- ejusdem generis in its analysis of minimum stream flow condition was 1972 regulations and subsequent unrelated to these discharges and statutory construction and concluded guidance. Id. at 713. that because ‘‘other appropriate therefore beyond the scope of the State’s Although PUD No. 1 has been authority under section 401. Id. requirements of state law’’ are included interpreted broadly by some to expand in a list of more specific discharge- The Court analyzed sections 401(a) State authority under section 401— related CWA provisions, this ‘‘general and 401(d); specifically, it analyzed the beyond assessing water quality impacts reference to ‘appropriate’ requirements use of different terms in those sections from the discharge, so as to allow of state law is most reasonably of the statute to inform the scope of a conditions beyond the enumerated construed to extend only to provisions section 401 certification. Section 401(a) CWA provisions—the Court did not that, like the other provisions in the list, requires the certifying authority to stray from the bedrock principles that a impose discharge-related restrictions.’’ certify that the discharge from a section 401 certification must address proposed federally licensed or Id. at 728. water quality and that appropriate The dissent also took issue with the permitted project will comply with conditions include those necessary to majority’s reliance, at least in part, on enumerated CWA provisions, and assure compliance with the State’s the EPA’s regulations and its section 401(d) allows the certifying water quality standards. Indeed, application of Chevron deference. The authority to include conditions to assure referring to the section 401 language dissent noted that the Court had not first that the applicant will comply with allowing certification conditions based identified ambiguity in the statute and enumerated CWA provisions and ‘‘ ‘any on ‘‘any other appropriate requirements that the federal government had not other appropriate’ state law of state law,’’ the Court explicitly sought judicial deference to EPA’s requirements.’’ 511 U.S. at 700. declined to speculate ‘‘on what regulations. 511 U.S. at 728–29 Emphasizing that the text of section additional state laws, if any, might be (Thomas, J., dissenting). See also Brief 401(d) ‘‘refers to the compliance of the incorporated by this language. But at a applicant, not the discharge,’’ the Court minimum, limitations imposed for the United States as Amicus Curiae concluded that section 401(d) ‘‘is most pursuant to state water quality Supporting Affirmance, PUD No. 1 of reasonably read as authorizing standards adopted pursuant to § 303 are Jefferson County v. Washington Dep’t of additional conditions and limitations on appropriate requirements of state law.’’ Ecology, No. 92–1911, (Dec. 1993). The the activity as a whole once the 511 U.S. at 713 (emphasis added). dissent noted that there was no EPA threshold condition, the existence of a On the scope of section 401, the interpretation directly addressing the discharge, is satisfied.’’ Id. at 712. dissenting opinion in PUD No. 1 would relationship between sections 401(a) The Court then concluded that this have declined to adopt the and (d), and that the only existing EPA interpretation of the statute was interpretation suggested by the EPA’s regulation that addresses the conditions consistent with the EPA’s 1971 regulations and guidance and instead that may appear in section 401 certification regulations, to which the analyzed the statutory section as a certifications ‘‘speaks exclusively in 18 19 Court accorded Chevron deference. whole, attempting to harmonize sections terms of limiting discharges.’’ Id. The Court favorably quoted the EPA’s 401(a) and (d). The dissent first noted (citing 40 CFR 121.2(a)(4)). that, if the majority’s conclusion that 19 18 The Court apparently failed to identify or States can impose conditions unrelated The amicus brief filed by the Solicitor General understand that the EPA’s regulations were on behalf of the EPA in this case did not grapple promulgated prior to the 1972 CWA amendments to discharges is correct, ‘‘Congress’ with the language in 401(a) and (d) at all, but and thus do not interpret the 1972 Act. careful focus on discharges in Continued

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The PUD No. 1 decision addressed River. S.D. Warren Co. v. Maine Bd. of No polluter will be able to hide behind a two other scope-related elements of Envtl. Prot., 547 U.S. 370 (2006) (S.D. Federal license or permit as an excuse for a section 401: Whether certification Warren). The issue presented in S.D. violation of water quality standard[s]. No conditions may be designed to address polluter will be able to make major Warren was whether operation of a dam investments in facilities under a Federal impacts to designated uses, and whether may result in a ‘‘discharge’’ into the license or permit without providing conditions related to minimum stream waters of the United States, triggering assurance that the facility will comply with flows are appropriate under section 401. the need for a section 401 certification, water quality standards. No State water First, the Court conducted a plain even if the discharge did not add any pollution control agency will be confronted language analysis of the CWA and pollutants. The Court analyzed the use with a fait accompli by an industry that has concluded that, ‘‘under the literal terms of different terms— ‘‘discharge’’ and built a plant without consideration of water of the statute, a project that does not ‘‘discharge of pollutants’’—within the quality requirements. comply with a designated use of the CWA, how those terms are defined, and Id. (emphasis added). The Court then water does not comply with the how they are used in CWA sections 401 stated, ‘‘These are the very reasons that applicable water quality standards.’’ Id. and 402. The Court noted that section Congress provided the States with at 715. This means that a section 401 402 expressly uses the term ‘‘discharge power to enforce ‘any other appropriate certification may appropriately include of pollutants’’ and requires permits for requirement of State law,’ 33 U.S.C. conditions to require compliance with such discharges; and that section 401, 1341(d), by imposing conditions on designated uses, which, pursuant to the by contrast, provides a tool for States to federal licenses for activities that may CWA, are a component of a water maintain water quality within their result in a discharge.’’ Id. (emphasis quality standard. Id. Second, the Court jurisdiction and uses the term added). Thus, when read in context, the acknowledged that the Federal Power ‘‘discharge,’’ which is not Court’s statement about a State’s Act (FPA) empowers FERC ‘‘to issue independently defined in the Act.20 authority to address a ‘‘broad range of licenses for projects ‘necessary or Finding no specific definition of the pollution’’ under section 401 does not convenient . . . for the development, term ‘‘discharge’’ in the statute, the suggest that an ‘‘appropriate transmission, and utilization of power Court turned to its common dictionary requirement of State law’’ means across, along, from, or in any of the meaning: A ‘‘flowing or issuing out’’ anything other than water quality streams . . . over which Congress has and concluded that the term is requirements or that a State’s or Tribe’s jurisdiction,’ ’’ and that the FPA ‘‘presumably broader’’ than ‘‘discharge action on a certification request can be ‘‘requires FERC to consider a project’s of a pollutant.’’ Id. at 375–76. focused on anything other than effect on fish and wildlife.’’ Id. at 722. The Court held that operating a dam compliance with appropriate water Although the Court had previously ‘‘does raise a potential for a discharge’’ quality requirements. rejected a State’s minimum stream flow and, therefore, triggers section 401. 547 b. Circuit Court Decisions requirement that conflicted with a U.S. at 373. In so holding, the Court Over the years, federal appellate stream flow requirement in a FERC observed that Congress had defined courts have also addressed important license, the Court found no similar ‘‘pollution’’ under the Act to mean ‘‘the aspects of section 401, including the conflict in this case because FERC had man-made or man-induced alteration of timing for certifying authorities to act on not yet issued the hydropower license. the chemical, physical, biological, and a request and the scope of authority of Id. Given the breadth of federal permits radiological integrity of water,’’ 33 federal agencies other than the EPA to that CWA section 401 applies to, the U.S.C. 1362(19), and that ‘‘[t]he make determinations on section 401 Court declined to assert a broad alteration of water quality as thus limitation on stream flow conditions in certifications. This section highlights a defined is a risk inherent in limiting few of the most significant issues certifications but concluded that they river flow and releasing water through may be appropriate if necessary to concerning section 401 and the most turbines.’’ 547 U.S. at 385. Such changes often cited decisions but does not cover enforce a State’s water quality standard, in a river ‘‘fall within a State’s including designated uses. Id. at 723. the universe of lower federal court or legitimate legislative business, and the State court case law. The Agency ii. S.D. Warren Clean Water Act provides for a system intends for this final rule to provide In 2006, the Court revisited section that respects the State’s concerns.’’ Id. at consistency and certainty where there 401 in connection with the State of 386. The Court concluded by observing may currently be conflicting or unclear Maine’s water quality certification of that ‘‘[s]tate certifications under but locally binding legal precedent. FERC license renewals for five [section] 401 are essential in the scheme Recent case law has provided insight hydroelectric dams on the Presumpscot to preserve state authority to address the concerning the timing and waiver broad range of pollution.’’ Id. This provisions of section 401. In 2018, the primarily argued that the proposed project had two sentence, when read in isolation, has Second Circuit addressed the question distinct discharges (which were undisputed) and been interpreted as broadening the of when the statutory review clock that ‘‘both discharges could reasonably be said to scope of section 401 to allow certifying cause a violation of the State’s water quality begins. N.Y. State Dep’t of Envtl. standards,’’ including the designated uses and authorities to consider potential Conservation v. FERC, 884 F.3d 450, antidegradation components. Brief for the United environmental impacts from a proposed 455–56 (2d Cir. 2018). Considering States as Amicus Curiae Supporting Affirmance, federally licensed or permitted project Millennium Pipeline Company’s PUD No. 1 of Jefferson County v. Washington Dep’t that have nothing to do with water of Ecology, No. 92–1911 at 12 n. 2 (Dec. 1993) (‘‘It certification request, the court disagreed is therefore unnecessary to determine in this case quality. However, the Court followed with the State of New York and held whether Congress intended by the use of the term that sentence with a quote from Senator that the statutory time limit is not ‘‘applicant,’’ rather than ‘‘discharge, ’’ in section Muskie’s floor statement during the triggered when a State determines that 401(d) to grant States a broader power to condition enactment of section 401: certifications under section 401(d) than to deny a request for certification is ‘‘complete,’’ them under section 401(a) and, if so, whether there but that the ‘‘plain language of Section are limitations on the States’ authority to impose 20 The Court noted that the Act provides that ‘‘the 401 outlines a bright-line rule regarding such conditions.’’) The amicus brief also did not term ‘discharge’ when used without qualification the beginning of review,’’ and that the inform the Court that the Agency’s implementing incudes a discharge of a pollutant, and a discharge regulations included language from the prior of pollutants.’’ 547 U.S. at 375 (quoting 33 U.S.C. clock starts after ‘‘receipt of such version of the Act. 1362(16)). request’’ by the certifying authority. Id.

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Otherwise, the court noted that States legitimacy’’ of an alternative agencies face with section 401 could ‘‘blur this bright-line into a arrangement whereby an applicant may certification conditions that are subjective standard, dictating that actually submit a new request in place included in federal licenses and applications are complete only when of the old one. Id. Nor did it determine permits. Federal agencies have been state agencies decide that they have all ‘‘how different a request must be to admonished not to ‘‘second guess’’ a the information they need. The state constitute a ‘new request’ such that it State’s water quality certification or its agencies could thus theoretically restarts the one-year clock.’’ Id. On the conditions, see, e.g., City of Tacoma, request supplemental information facts before it, the court found that 460 F.3d at 67; Am. Rivers Inc., 129 F.3d indefinitely.’’ Id. at 456. The Agency ‘‘California’s and Oregon’s deliberate at 107; U.S. Dept. of Interior v. FERC, agrees with this holding. and contractual idleness’’ defied the 952 F.2d 538, 548 (D.C. Cir. 1992) The D.C. Circuit has also recently statute’s one-year limitation and (‘‘FERC may not alter or reject analyzed the statutory timeline for ‘‘usurp[ed] FERC’s control over whether conditions imposed by the states review of a certification and has and when a federal license will issue.’’ through section 401 certificates.’’), even correctly held that, consistent with the Id. where the federal agency has attempted plain language of CWA section Another important area of case law to impose conditions that are more 401(a)(1), ‘‘while a full year is the deals with the scope of authority and stringent than the State’s conditions. absolute maximum, [the statute] does deference provided to federal agencies See Sierra Club v. U.S. Army Corps of not preclude a finding of waiver prior to other than the EPA in addressing issues Engineers, 909 F.3d 635, 648 (4th Cir. the passage of a full year.’’ Hoopa Valley arising under section 401. Many other 2018) (‘‘the plain language of the Clean Tribe v. FERC, 913 F.3d 1099, 1104 federal agencies, including FERC and Water Act does not authorize the Corps (D.C. Cir. 2019), cert. denied sub nom. the Corps, routinely issue licenses and to replace a state condition with a Cal. Trout v. Hoopa Valley Tribe, 140 permits that require section 401 meaningfully different alternative S.Ct. 650 (2019). Significantly, the court certifications and are responsible for condition, even if the Corps reasonably observed that the EPA’s own enforcing State certification conditions determines that the alternative regulations—promulgated by ‘‘the that are incorporated into federal condition is more protective of water agency charged with administering the licenses and permits. However, because quality’’); see also Lake Carriers’ Assoc. CWA’’—allowed for waiver after only the EPA has been charged by Congress v. EPA, 652 F.3d 1, 6, 12 (D.C. Cir. 2011) six months. Id. with administering the CWA, some (concluding that additional notice and In Hoopa Valley Tribe, the D.C. courts have concluded that those other comment on State certification Circuit also correctly held that ‘‘the federal agencies are not entitled to conditions would have been futile withdrawal-and-resubmission of water deference on their interpretations of because ‘‘the petitioners have failed to quality certification requests does not section 401. See Ala. Rivers Alliance v. establish that EPA can alter or reject trigger new statutory periods of review.’’ FERC, 325 F.3d 290, 296–97 (D.C. Cir. state certification conditions. . . .’’). Id. at 1101. The court found that the 2002); Am. Rivers, Inc. v. FERC, 129 But in Lake Carriers’ Assoc., the court project proponent and the certifying F.3d 99, 107 (2d. Cir. 1997). Other also observed, ‘‘[n]otably, the petitioners authorities (California and Oregon) had courts have concluded that FERC has an never argued that the certifications improperly entered into an agreement affirmative obligation to determine failed to ‘compl[y] with the terms of whereby the ‘‘very same’’ request for whether a certifying authority has section 401,’ . . . by overstepping State certification of its relicensing complied with requirements related to a traditional bounds of state authority to application was automatically section 401 certification. See City of regulate interstate commerce’’ (citing withdrawn-and resubmitted every year Tacoma v. FERC, 460 F.3d 53, 67–68 City of Tacoma, 460 F.3d at 67), and the by operation of ‘‘the same one-page (D.C. Cir. 2006) (FERC had an obligation court concluded that it ‘‘therefore need letter,’’ submitted to the States before to ‘‘obtain some minimal confirmation not consider whether EPA has authority the statute’s one-year waiver deadline. of such compliance’’); see also Keating to reject state conditions under such Id. at 1104. The court observed that v. FERC, 927 F.2d 616, 622–23, 625 circumstances.’’ Also, in Snoqualmie ‘‘[d]etermining the effectiveness of such (D.C. Cir. 1991) (while a federal agency Indian Tribe v. FERC, the Ninth Circuit a withdrawal-and-resubmission scheme may not question propriety of State upheld FERC’s inclusion of minimum is an undemanding inquiry’’ because the certification before license has issued, flow requirements greater than those statute’s text ‘‘is clear’’ that failure or ‘‘FERC must at least decide whether the refusal to act on a request for state’s assertion of revocation satisfies specified in the State of Washington’s certification within a reasonable period section 401(a)(3)’s predicate certification as long as they ‘‘do not of time, not to exceed one year, waives requirements’’). conflict with or weaken the protections the State’s ability to certify.21 Id. at 1103. In an important determination of provided by the [State] certification.’’ The court found that, pursuant to the procedural authorities, the Second 545 F.3d 1207, 1219 (9th Cir. 2008). In unlawful withdrawal-and-resubmission Circuit has held that FERC—as the that case, FERC had added license ‘‘scheme,’’ the States had not yet licensing agency—‘‘may determine conditions increasing the minimum rendered a certification decision ‘‘more whether the proper state has issued the flows specified in the State’s than a decade’’ after the initial request certification or whether a state has certification in order to ‘‘produce a great was submitted to the States. Id. at 1104. issued a certification within the amount of mist’’ which it determined The court declined to ‘‘resolve the prescribed period.’’ Am. Rivers, Inc., would ‘‘augment the Tribe’s religious 129 F.3d at 110–11. This holding is experience,’’ one of the water’s 21 Two decisions from the Second Circuit recently correct; the holding is consistent with designated uses. Id.; see also cases acknowledged that project proponents have and supported by the implied statutory discussed at section III.G of this notice withdrawn and resubmitted certification requests to affirming a role for federal agencies to extend the reasonable time period for a state to authority of a federal agency to establish review. See N.Y. State Dep’t of Envtl. Conservation the ‘‘reasonable period of time (which confirm whether certifications comply v. FERC, 884 F.3d at 456; Constitution Pipeline v. shall not exceed one year)’’ in the first with the requirements of section 401. N.Y. State Dep’t of Envtl. Conservation, 868 F.3d This final rule is intended to provide 87, 94 (2d Cir. 2018). However, in neither case did place. 33 U.S.C. 1341(a)(1). the court opine on the legality of such an Case law also highlights the potential clarity to certifying authorities, federal arrangement. enforcement challenges that federal agencies, and project proponents, as it

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addresses comprehensively and for the Chevron, 467 U.S. at 843–44). Courts merely promoted the maintenance of first time relevant competing case law thus have applied Chevron deference to current air quality standards. and attempts to clarify the scope of an agency’s statutory interpretation In a unanimous decision, the conditions that may be included in a ‘‘when it appears that Congress Supreme Court reversed, finding that certification and the federal agencies’ delegated authority to the agency the D.C. Circuit had committed a ‘‘basic role in the certification process. generally to make rules carrying the legal error’’ by adopting ‘‘a static judicial definition of the term 5. Administrative Law Principles force of law, and that the agency interpretation claiming deference was ‘stationary source’ when it had decided To understand the full context and promulgated in the exercise of that that Congress itself had not commanded legal basis for this final rule, it is useful authority.’’ Mayo Found. for Medical that decision.’’ Chevron, 467 U.S. at 842. to review some key governing principles Educ. and Res. v. United States, 562 The Court explained that it is not the of administrative law. In general, U.S. 44, 45 (2011) (quoting United judiciary’s place to establish a administrative agencies can exercise States v. Mead Corp., 533 U.S. 218, 226– controlling interpretation of a statute only the authority that has been 27 (2001)). delegating authority to an agency, but, provided to them by Congress, and In Chevron, the Supreme Court rather, that it is the agency’s job to ‘‘fill courts must enforce unambiguous terms reviewed the EPA’s interpretation of any gap left, implicitly or explicitly, by that clearly express congressional statutory language from the Clean Air Congress.’’ Id. at 843. When Congress intent. However, when Congress Act Amendments of 1977. Congress expressly delegates to an administrative delegates authority to administrative amended the Clean Air Act to impose agency the authority to interpret a agencies, it sometimes enacts requirements on States that had not statute through regulation, courts cannot ambiguous statutory provisions. To achieved the national air quality substitute their own interpretation of carry out their congressionally standards promulgated by the EPA. the statute when the agency has authorized missions, agencies, States that had not attained the provided a reasonable construction of including the EPA, must often interpret established air standards had to the statute. See id. at 843–44. ambiguous statutory terms. However, During the rulemaking process, the implement a permit program that would they must do so consistent with EPA had explained that Congress had regulate ‘‘new or modified major congressional intent. In Chevron, U.S.A. not fully addressed the definition of stationary sources’’ of air pollution. v. Natural Resources Defense Council, ‘‘source’’ in the amendments to the Clean Air Act Amendments of 1977, Inc., 467 U.S. 837 (1984) (Chevron), the Clean Air Act or in the legislative Public Law 95–95, 91 Stat. 685 (1977). Supreme Court concluded that courts history. Id. at 858. The Supreme Court The EPA promulgated regulations have a limited role when reviewing agreed, concluding that ‘‘the language of agency interpretations of ambiguous defining a ‘‘stationary source’’ as the [the statute] simply does not compel any statutory terms. In such cases, reviewing entire plant where pollutant-producing given interpretation of the term courts defer to an agency’s structures may be located. The EPA, ‘source.’’’ Id. at 860. And the legislative interpretation of ambiguous terms if the therefore, treated numerous pollution- history associated with the amendments agency’s interpretation is reasonable. producing structures collectively as a was ‘‘silent on the precise issue.’’ Id. at Under Chevron, federal agencies—not single ‘‘stationary source,’’ even if those 862. federal courts—are charged in the first structures were part of the same larger In its proposed and final rulemaking, instance with resolving statutory facility or complex. See 40 CFR the EPA noted that adopting an ambiguities to implement delegated 51.18(j)(1)(i)–(ii) (1983). Under the individualized equipment definition of authority from Congress. EPA’s regulation, a facility could modify ‘‘source’’ could disincentivize the The Supreme Court has described the or construct new pollution-emitting modernization of plants, if industry had Chevron analysis as a ‘‘two-step’’ structures within the facility or complex to go through the permitting process to process. Encino Motorcars, LLC v. as long as the stationary source—the create changes. Id. at 858. The EPA Navarro, 136 S. Ct. 2117, 2124 (2016). facility as a whole—did not increase its believed that adopting a plant-wide At step one, the reviewing court pollution emissions. definition of ‘‘source’’ could result in determines whether Congress has In 1981, the Natural Resources reduced pollution emissions. Id. ‘‘directly spoken to the precise question Defense Council (NRDC) opposed the Considering the Clean Air Act’s at issue.’’ Chevron, 467 U.S. at 842. If so, EPA’s definition of ‘‘stationary source’’ competing objectives of permitting ‘‘that is the end of the matter; for the and filed a challenge to the Agency’s economic growth and reducing court, as well as the agency, must give regulations. The D.C. Circuit agreed pollution emissions, the Supreme Court effect to the unambiguously expressed with the NRDC and set aside the EPA’s stated that ‘‘the plantwide definition is intent of Congress.’’ Id. at 842–43. If the regulations. The D.C. Circuit fully consistent with one of those statute is silent or ambiguous, the acknowledged that the Clean Air Act concerns—the allowance of reasonable reviewing court proceeds to the second ‘‘does not explicitly define what economic growth—and, whether or not step, in which the court must defer to Congress envisioned as a ‘stationary we believe it most effectively the agency’s ‘‘reasonable’’ interpretation source,’ to which the permit program implements the other, we must of the statute. Id. at 844. . . . should apply,’’ and also concluded recognize that the EPA has advanced a In the field of judicial review of that Congress had not clearly addressed reasonable explanation for its agencies’ regulations that interpret the issue in the legislative history. conclusion that the regulations serve the statutes that those agencies administer, NRDC v. Gorsuch, 685 F.2d 718, 723 environmental objectives as well.’’ Id. at Chevron deference relies on the (DC Cir. 1982). Without clear text or 863. The Court upheld the EPA’s principle that ‘‘when Congress grants an intent from Congress, the D.C. Circuit definition of the term ‘‘stationary agency the authority to administer a looked to the purposes of the program source,’’ explaining that ‘‘the statute by issuing regulations with the to guide the court’s interpretation. Id. at Administrator’s interpretation force of law, it presumes the agency will 726. According to the court, Congress represents a reasonable accommodation use that authority to resolve ambiguities sought to improve air quality when it of manifestly competing interests and is in the statutory scheme.’’ Encino amended the Clean Air Act, and the entitled to deference: The regulatory Motorcars, 136 S. Ct. at 2125 (citing EPA’s definition of ‘‘stationary source’’ scheme is technical and complex, the

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agency considered the matter in a Supreme Court granted certiorari and would constitute a ‘‘usurping’’ of State detailed and reasoned fashion, and the reversed. The Supreme Court upheld authority and overstepping the Tenth decision involves reconciling the FCC’s interpretation of the Amendment rights of the States. The conflicting policies.’’ Id. at 865.22 Communications Act by applying EPA disagrees with these commenters. In the Brand X decision, the Supreme Chevron’s two-step analysis. The Court For the reasons set forth in section II.F.1 Court further elaborated on the Chevron found that the relevant statutory of this notice and in the following doctrine, upholding agencies’ broad provisions failed to unambiguously paragraph, the Agency considers this power to interpret ambiguous statutes as foreclose the Commission’s final rule to be a careful and thoughtful against contrary judicial interpretations. interpretation, while other provisions clarification of State and Tribal Even if a court has ruled on the were silent. The FCC had ‘‘discretion to involvement in federal licensing or interpretation of a statute, the ‘‘court’s fill the consequent statutory gap,’’ and permitting proceedings, including those prior judicial construction of a statute its construction was reasonable. Id. at in which State and Tribal authority may trumps an agency construction 997. otherwise be preempted by federal law. otherwise entitled to Chevron deference As the Court noted, the entire ‘‘point The final rule does not ‘‘usurp’’ State only if the prior court decision holds of Chevron is to leave the discretion authority. As discussed, the EPA’s final that its construction follows from the provided by the ambiguities of a statute rule is consistent with section 401, unambiguous terms of the statute and with the implementing agencies.’’ 545 strikes the appropriate balance Congress thus leaves no room for agency U.S. at 981 (quoting Smiley, 517 U.S. at intended between federal and State discretion.’’ Nat’l Cable & Telecomm. 742). Thus courts cannot rely on judicial authority, and does not limit State Ass’n v. Brand X internet Serv., 545 U.S. precedent to override an agency’s authority any more than Congress 967, 982 (2005) (emphasis added). Put interpretation of an ambiguous statute. intended under section 401. another way, Brand X held that ‘‘a Id. at 982. Instead, as a ‘‘better rule,’’ a The Agency also received a comment court’s choice of one reasonable reading reviewing court can rely only on asserting that the proposed rule would of an ambiguous statute does not precedent that interprets a statute at violate the Tenth Amendment because preclude an implementing agency from ‘‘Chevron step one.’’ Id. ‘‘Only a judicial federal agencies cannot commandeer later adopting a different reasonable precedent holding that the statute States to regulate interstate commerce in interpretation.’’ United States v. Eurodif unambiguously forecloses the agency’s particular ways, citing New York v. S.A., 555 U.S. 305, 315 (2009). This interpretation, and therefore contains no United States, 505 U.S. 144, 166 (1992). principle stems from Chevron itself, gap for the agency to fill, displaces a The commenter noted that in New York, which ‘‘established a ‘presumption that conflicting agency construction.’’ Id. at the Supreme Court, in striking down Congress, when it left ambiguity in a 982–83. A contrary rule would produce portions of the Low-Level Radioactive statute meant for implementation by an anomalous results, because the Waste Policy Amendments Act of 1985 agency, understood that the ambiguity controlling interpretation would then that required States to regulate as would be resolved, first and foremost, turn on whether a court or the agency Congress instructed or to take title to the by the agency, and desired the agency had interpreted the statutory provision waste, found that Congress cannot (rather than the courts) to possess first. See id. at 983. ‘‘[W]hether Congress command States how to legislate and whatever degree of discretion the has delegated to an agency the authority that Congress must exercise legislative ambiguity allows.’ ’’ Brand X, 545 U.S. to interpret a statute does not depend on authority only directly upon at 982 (quoting Smiley v. Citibank, 517 the order in which the judicial and individuals. The Agency disagrees with U.S. 735, 740–41 (1996)). As Chevron administrative constructions occur.’’ Id. this commenter. This final rule neither itself noted, even the ‘‘initial agency Agencies have the authority to revise directs the functioning of the States nor interpretation is not instantly carved in ‘‘unwise judicial constructions of commands States how to legislate or stone.’’ Chevron, 467 U.S. at 863. ambiguous statutes.’’ Id. regulate. The final rule merely affirms In Brand X, the Federal and clarifies the scope of the authority 6. Response to Comments on the Legal that Congress granted to certifying Communications Commission (FCC or Background Commission) interpreted the scope of authorities to review and condition a the Communications Act of 1934, which The Agency solicited and received federal license or permit within certain subjects providers of numerous comments on the legal reasonable bounds, informed by the text ‘‘telecommunications service’’ to background for the proposed rule. of the Act, and provides a procedural mandatory common-carrier regulations. Among others, these comments framework for States, Tribes, and federal Brand X, 545 U.S. at 977–78. Brand X included legal arguments pertaining to agencies to follow that will promote internet Services challenged the FCC’s the Tenth Amendment, interstate consistency in 401 certification interpretation, and the Ninth Circuit commerce, cooperative federalism, the proceedings. concluded, based on the court’s APA, and the Agency’s rulemaking In the proposal, the EPA solicited precedent, that the Commission’s authority. The sections below provide comment on whether the proposed rule construction of the Communications Act the EPA’s response to the most salient appropriately balanced the scope of was impermissible Id. at 979–80. The of those comments. State authority under section 401 with Congress’ goal of facilitating commerce a. The Tenth Amendment and the on interstate navigable waters. Some 22 For other instructive applications of Chevron’s Commerce Clause interpretative principles, see Entergy Corp. v. commenters argued that the cases Riverkeeper, Inc. 556 U.S. 208, 222–23 (2009) Some commenters asserted the referenced in the proposed rule (statutory silence interpreted as ‘‘nothing more than proposed rule would violate the Tenth preamble, including Lighthouse a refusal to tie the agency’s hands’’); Zuni Pub. School Dist. v Dep’t of Educ. 550 U.S. 81, 89–94 Amendment, citing the sovereignty that Resources, Inc. v. Inslee and Lake (2007) (court considered whether agency’s States have over waters of the United Carrier’s Association v. EPA, 652 F.3d 1 interpretation was reasonable in light of the ‘‘plain States. One commenter asserted that (D.C. Cir. 2011), are not relevant to this language of the statute’’ as well as the statute’s jurisdictional power over waters of the rulemaking. The Agency disagrees with ‘‘background and basic purposes’’); Healthkeepers, Inc. v. Richmond Ambulance Auth., 642 F.3d 466, State was reserved for the States and not the suggestion that these cases are 471 (4th Cir. 2011) (‘‘statutory construction . . . is delegated to Congress. Another irrelevant because, among other things, a holistic endeavor’’). commenter asserted that the proposal they demonstrate that section 401

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actions are not insulated from legal federalism and the important role of 401 certification does not exceed the challenges asserting State or Tribal States and Tribes as co-regulators, and scope of CWA jurisdiction. interference with interstate commerce therefore, these commenters believed The EPA has considered these diverse and violations of the Commerce Clause. that the proposed rule undermines the comments and concludes that the final The Agency did not rely on these cooperative federalism structure rule does not infringe upon the roles of decisions to inform the substance of the established by Congress in the CWA in States as co-regulators, nor does it final rule; rather, they were considered section 101(b) and section 101(g). Most undermine cooperative federalism. The as part of the overall context of litigation of these commenters noted that the final rule does not and cannot alter the and regulatory uncertainty that CWA recognizes States’ primary basic scope of authority granted by contributed to the need to update the authority over their water resources, Congress to States and Tribes for the 1971 certification regulations to be designates States as co-regulators under review of potential discharges consistent with CWA section 401. a system of cooperative federalism, and associated with federal licenses and Other commenters supported the expresses intent to preserve and protect permits for compliance with water proposal and raised concerns that States States’ responsibilities and rights. quality standards. States and authorized and Tribes could use section 401 actions Commenters stated that the CWA was Tribes, for example, remain primarily to override federal trade policy with founded on a principle of cooperative responsible to develop the water quality which they disagree. At least one federalism, and that the EPA should not standards with which federal projects commenter asserted that coastal States dictate what States can and cannot do. must comply. and States that border Canada and Another commenter asserted that the Accordingly, this rule neither Mexico could misuse section 401 to proposed rule would unduly limit diminishes nor undermines cooperative block the construction of international States’ authority and autonomy to federalism. Rather, the final rule clearly terminals for exports, including energy, protect their water resources. A few identifies when a certification is agricultural, and manufacturing exports. commenters asserted that the proposed required and the permissible scope of This commenter asserted that such rule would harm Congress’ division of such a certification—including misuse could also result in blocking authority between certifying authorities conditions of that certification—and imports from trading partners based on and federal licensing and permitting reaffirms that certifying authorities have objections of a single State. The EPA agencies. Some commenters asserted a reasonable period of time to act on a appreciates these comments and agrees that the proposed rule neglects States’ certification request, which cannot that there is a risk that State or Tribal interests. exceed one year. This clarity helps certification authority could be misused define the appropriate parameters of in the way described by the commenter. Other commenters asserted that the cooperative federalism contemplated by However, as described elsewhere in this proposed rule is consistent with the section 401, and does not undermine it. final rule preamble and in the Economic overall cooperative federalism The EPA disagrees with commenters Analysis for the Clean Water Act framework established by Congress in who suggest that concepts of Section 401 Certification Rule (‘‘the the CWA and appropriately balances ‘‘cooperative federalism’’ preclude the Economic Analysis,’’ available in the federal and State authority. A few EPA from establishing regulations to docket for this final rule), the EPA commenters argued that under section implement section 401. Cooperative acknowledges that many certifications 401, Congress was conferring on States federalism must be implemented reflect an appropriately limited a narrow exception to act in areas that consistent with the statutory framework interpretation of the purpose and scope are otherwise preempted entirely by under the CWA, which does not allow of section 401 and are issued without federal law. These commenters EPA to authorize, either explicitly or by controversy, and that the limitations described section 401 certifications as implication, States to implement this expressed in this rulemaking should playing a limited role in a much larger important federal program in a manner further curb any improper invocation of federal permitting scheme envisioned in beyond the authority established by section 401 authority. the CWA. A few commenters supporting Congress. Indeed, as the Agency charged The EPA has determined that this the proposed rule described an with administering the CWA, EPA’s role final rule appropriately balances the appreciation for the EPA’s desire to here is similar to its baseline setting interests of State or Tribal participation preserve State sovereignty and function in other aspects of the Act, to in federal license or permit proceedings cooperative federalism in conjunction ensure that there are sufficient under section 401 with Congress’ goal of with greater consistency in authorities and limitations in place for facilitating interstate commerce on implementing section 401. Several States and Tribes to effectively navigable waters. Because Congress commenters observed that the proposed implement CWA programs within the relied on its authority under the rule would promote efficiency and scope that Congress established. The Interstate Commerce Clause when it would be consistent with the intent of final rule provides, for the first time, a enacted the CWA, including section the 1972 CWA amendments, leading to consistent framework to govern the 401, this rule respects that balance. The consistent nationwide implementation, implementation of CWA section 401 Agency has for the first time clearly while allowing the States to retain their that complies with the 1972 CWA defined the scope of certification, primary roles under the CWA. Other amendments. reducing the risk that States and Tribes commenters stated that the current c. Administrative Procedure Act would deny or condition certifications regulations have allowed States to for reasons beyond the authority impose conditions beyond the scope of Some commenters asserted that the provided in section 401 or that such water quality effects of a discharge, proposed rule is arbitrary and denials or conditions would place leading to lengthy delays and a process capricious and an abuse of discretion. undue burdens on interstate commerce. that is ill-defined, confusing in scope, Some commenters cited Motor Vehicle and lacking clear deadlines. Other Mfrs. Ass’n of U.S., Inc. v. State Farm b. Cooperative Federalism commenters suggested that the proposed Mut. Auto., 463 U.S. 29 (1983), and A number of commenters asserted rule supports timely issuance of permits argued that the EPA ‘‘relied on factors that the proposed rule is inconsistent and licenses and agreed that the which Congress has not intended it to with the concept of cooperative proposed rule would ensure that section consider, entirely failed to consider an

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important aspect of the problem, offered federal licensing and permitting certification regulations were an explanation for its decision that runs agencies. The final rule promotes the promulgated to implement section 21(b) counter to the evidence before the overarching goals of the CWA to of the 1970 FWPCA, not section 401 of agency or is so implausible that it could prevent, reduce, and eliminate pollution the 1972 CWA amendments. See section not be ascribed to a difference in view in the nation’s waters and to regulate II.F.3 of this notice. The 1972 or the product of agency expertise.’’ Id. discharges into waters of the United amendments made two major changes at 43. One commenter asserted that the States, while preserving States’ major affecting the scope of the certification EPA was arbitrary and capricious role in implementing the CWA. The requirement: It changed ‘‘activity’’ to because the proposed rule lacks analysis Agency has examined relevant and ‘‘discharge’’ in section 401(a) and added of water quality impacts and fails to available data and articulated a robust section 401(d), which describes effluent consider whether the proposed rule, if basis for the rulemaking in the proposed limitations, other limitations, and adopted, will ensure that the CWA’s and final rule preambles. See the monitoring requirements that may be overarching goal to protect water quality Economic Analysis and the Supporting included in a certification. These is met. This commenter further asserted Statement for the Information Collection important statutory elements were not that when combined with the EPA’s Request for the Clean Water Act Section present or contemplated in the 1971 recent action to significantly narrow the 401 Certification Rule for further certification regulations, which the EPA definition of ‘‘waters of the United discussion of available data. Some commenters asserted the is updating with this final rule. It is States,’’ the effect of the proposed rule entirely appropriate, and necessary, for could be to leave a regulatory gap, proposed rule is arbitrary and capricious because it is a reversal of the EPA to conform to the 1972 CWA especially in cases where federal law amendments when updating its almost preempts State water quality existing policy and that the Agency did not provide adequate support for the 50-year-old certification regulations. As regulations. Commenters also argued, noted throughout the proposal preamble citing State Farm, 463 U.S. at 43, that policy reversal. Some commenters argued that when an agency undertakes and the Economic Analysis, the EPA the EPA failed to ‘‘examine the relevant acknowledges that many certifications data and articulate a satisfactory a new interpretation, it needs a factual reflect an appropriately limited explanation for its action including a record on which to make such a change. interpretation of the purpose and scope rational connection between the facts These commenters asserted that no of section 401 and are issued without found and the choice made.’’ These record exists in the proposed rule and controversy. Although a few high profile commenters also cited Nat’l Cotton that no recognition of prior State and certification denials are part of the Council of Am. v. EPA, 553 F.3d 927, EPA practice is evident. One commenter 939 (6th Cir. 2009), and asserted that, argued that the EPA failed to provide a factual and administrative record for when the EPA adopts CWA regulations, valid, reasoned basis for departing from this rulemaking, and EPA has it cannot ‘‘ignore the directive given to decades of agency practice. Some considered these facts during the it by Congress . . . which is to protect commenters also asserted that the rulemaking process, the EPA has not water quality.’’ One commenter argued Agency did not demonstrate that the relied on these facts as the sole or that the Agency elevated industrial existing regulations are inadequate or primary basis for this rulemaking. The interests over State section 401 explain how the proposed rule will Agency’s longstanding failure to update authority and therefore considered provide increased predictability in its regulations created the confusion and comparison, noting that litigation over factors not allowed by Congress in regulatory uncertainty that were section 401 denials falls short of a violation of the APA, citing Nat’l ultimately the cause of those reasoned explanation. These Lifeline Ass’n v. FCC, 915 F.3d 19 (D.C. controversial section 401 certification commenters argued that the proposed Cir. 2019) (quoting Motor Vehicle Mfrs. actions and the resulting litigation. To rule is just as likely to create more Ass’n v. State Farm Mut. Auto Ins. Co., illustrate the type of uncertainty this confusion, unpredictability, and delay 463 U.S. 29, 43 (1983)). rule is attempting to resolve, recent given the sweeping changes that the The final rule is neither arbitrary nor court cases indicate that some project proposed rule seeks to implement. Some proponents, certifying authorities and capricious nor an abuse of the EPA’s commenters asserted that the EPA was discretion. In crafting the final rule, the federal agencies have different ideas required to and has failed to conduct a about when the time for review of a Agency started with the statutory careful analysis of past certification certification begins and—once begun— language of the CWA; where the plain reviews to demonstrate the need for the whether the review period can be tolled language of the Act was unclear or proposed rule. Some commenters or extend beyond one year. See Hoopa otherwise ambiguous, the EPA argued that the proposed rule does not considered the structure and purposes consider and analyze alternatives, as Valley Tribe v. FERC, 913 F.3d 1099 of the Act, relevant legal precedent, and these commenters assert the Agency is (D.C. Cir. 2019); New York State Dep’t legislative history. The EPA also required to do, particularly when it of Envtl. Conservation v. FERC, 884 F.3d carefully considered the widely varying proposes to reverse its policy, citing 450 (2d Cir. 2018); Constitution Pipeline and competing comments received State Farm, 463 U.S. at 46–48; Ctr. For Co., LLC v. New York State Dep’t of during the pre-proposal outreach, Science in the Pub. Interest v. Dep’t of Envtl. Conservation, 868 F.3d 87 (2d Cir. including Tribal and State engagement, Treasury, 797 F.2d 995, 999 (D.C. Cir. 2017). Questions have also arisen and more than 125,000 public 1986). regarding the role of the federal agency comments filed in the public docket, The Agency disagrees with these in determining whether a waiver has which are described throughout this commenters and concludes that its occurred. Millennium Pipeline Co. v. final rule preamble. These are factors justification in this rulemaking is more Seggos, 860 F. 3d 696 (D.C. Cir. 2017). that Congress intended the Agency to than adequate. The Agency’s final rule Recent litigation also raises the issue of consider. 5 U.S.C. 553(b) and (c). The includes for the first time a well-defined a certifying authority’s ability to deny Agency carefully examined the statutory scope for State and Tribal review and certification for other than water language and the legislative history actions under section 401. As quality-related reasons. See Lighthouse when determining the scope of articulated throughout the proposal and Resources, Inc. v. Inslee, No. 3:18–cv– certification and the appropriate role of this final rule preamble, the 1971 5005 (W.D. Wash. filed Jan. 8, 2018).

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This rule updates the EPA’s Gilbert, 429 U.S. 125, 143 (1976), is the Administrator to issue certifications regulations to be consistent with the misplaced because both decisions pre- when a State or interstate agency has no language of section 401 as enacted in date Chevron and Brand X. As described authority to issue a certification under 1972. The final rule, while focused on in section II.F.5 above, EPA has section 401(a)(1), to ensure the the relevant statutory provisions and undertaken this rulemaking in protection of other States’ waters under case law interpreting those provisions, accordance with key principles of section 401(a)(2), and to provide is informed by the Agency’s expertise administrative law, respecting technical assistance under section developed over nearly 50 years of unambiguous terms of the CWA and 401(b). Section 304(h) of the CWA also implementing the CWA and policy interpreting ambiguous language in specifically directs the EPA to considerations where necessary to section 401 consistent with ‘‘promulgate guidelines establishing test address certain ambiguities in the congressional intent. The EPA’s procedures for the analysis of pollutants statutory text. For the first time, this approach and rationale are set out in that shall include the factors which final rule aligns the EPA’s regulations detail in the proposal and this final rule must be provided in any certification with the 1972 amendments and preamble and are supported by pursuant to section 401 of this Act.’’ 33 provides clarity to certifying authorities, applicable Supreme Court precedent. U.S.C. 1314(h) (setting April 1973 federal licensing and permitting deadline for doing so). The EPA is doing d. Rulemaking Authority agencies, project proponents, and the so with this final rule. general public. Several commenters cited A.L.A. To carry out its functions under Other commenters asserted that the Schechter Poultry Corp. v. United section 401, the EPA must adopt rules proposed rule is carrying out the States, 295 U.S. 495, 537–38 (1935), and that ensure transparency and direction given by the Executive Order argued that the proposed rule is accountability for actions taken under to stop States from ‘‘hindering the unconstitutional because it reflects the section 401. This includes defining the development of energy infrastructure’’ executive branch legislating absent scope of section 401 and adopting and asserted that administrative action congressional delegation to do so. One appropriate procedures to implement with such a predestined result should commenter asserted that federal the timing, public notice and other not be afforded the level of deference executive agencies have no inherent requirements in section 401. Upon typically afforded. Certain commenters authority to make law and are subject to examination of the language of section also cited Watt v. Alaska, 451 U.S. 259, the legislative powers of the Congress. 401, the relevant case law and 273 (1981), and General Electric Co. v. This commenter cited Louisiana Pub. legislative history, the Agency Gilbert, 429 U.S. 125, 143 (1976), to Serv. Comm’n v. FCC, 476 U.S. 355, 374 recognizes that section 401 contains argue that the EPA is overturning fifty (1986), and argued that agency authority some ambiguities and lacks clarity in years of practice under the CWA in is limited to the authority granted by some sections. The Administrator’s role violation of the clear language of 33 Congress, and that the EPA cannot add under section 101(d), as the person U.S.C. 1251(b), 33 U.S.C. 1341, and 33 conditions outside the scope of the charged with administering the CWA, U.S.C. 1370; and asserted that the EPA CWA for which Congress provided. includes adopting reasonable is entitled to less deference when Other commenters asserted that by interpretations of the statute to resolve overturning past practice. seeking to limit how States exercise ambiguities and provide clarity. For The Agency disagrees that this their authority under section 401, the example, because CWA section 304(h) rulemaking result was predetermined by proposed rule would exceed the requires the Administrator to develop the Executive Order. As discussed in Agency’s statutory authority ‘‘to guidelines that ‘‘shall include the this final rule preamble, the Executive prescribe such regulations as are factors that must be provided’’ in any Order does not specify details about necessary to carry out [the EPA CWA section 401 certification, the EPA what the regulation must say, deferring Administrator’s] functions under [the appropriately interprets that provision to the Agency and its technical Clean Water Act]’’ (33 U.S.C. 1361(a)) as authorizing the Administrator to expertise, as informed by public input, and would instead intrude upon the identify ‘‘factors’’ that may not be to develop a regulation consistent with ‘‘responsibilities and rights’’ Congress included in a certification. The final the CWA. The EPA issued a proposed expressly reserved to the States. See 33 rule presents a reasonable interpretation rule, received public comment on that U.S.C. 1251(b). Other commenters of the scope of section 401, which, given rule, made changes in this final rule in agreed with the proposal, stating that the ambiguities in sections 401(a) and response to comments and to increase the EPA is tasked with promulgating 401(d), is properly the subject of Agency clarity and regulatory certainty for the rules for the implementation of the interpretation. The final rule also section 401 certification process, and CWA, including one commenter citing requires certification conditions and explained the basis for these changes. Alabama Rivers Alliance v. FERC, 325 denials to be within that scope and that None of that was predetermined. The F.3d 290, 296–97 (2003). certain information be included in a EPA further disagrees with commenters’ The EPA agrees that the section 401 certification or denial to support the assertions that either the proposed rule rulemaking must be consistent with the action. These substantive and or this final rule violates the CWA. As CWA and the EPA’s authority under the procedural regulations are necessary for described throughout this notice, the Act, but disagrees with commenters the Administrator to act as a certifying EPA for the first time conducted a who asserted that the proposal or this authority, to administer section 401 holistic analysis of the text, structure, final rule exceeded that authority. provisions related to neighboring and history of CWA section 401. The Section 501 of the CWA gives the jurisdictions, and to provide technical final rule is based on this holistic Administrator the authority to adopt assistance to other certifying authorities, analysis and is consistent with the rules ‘‘as are necessary to carry out his federal agencies, and project language and congressional intent of functions under this chapter.’’ 33 U.S.C. proponents. section 401 and is informed by 1361(a). Section 101(d) of the CWA Other commenters objected to the important policy considerations and the expressly provides that the proposed rule, asserting that it would Agency’s expertise. Commenter’s Administrator shall administer the disrespect the separation of powers by reliance on Watt v. Alaska, 451 U.S. 259 CWA. 33 U.S.C. 1251(d). Section 401 of not implementing the will of Congress 273, (1981), and General Electric Co. v. the CWA includes responsibilities for as expressed in the CWA. U.S. Const.

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art. II, § 3. As discussed throughout this appropriate framework for judicial 401. As a result of that analysis, the EPA notice, the proposed rule was consistent review of statutory interpretation. If the is establishing the scope of section 401 with statutory language of the CWA and language of a congressional statute is as protecting the quality of waters of the congressional intent, and this final rule clear, that unambiguous meaning United States from point source appropriately implements the will of controls. If, however, the congressional discharges associated with federally Congress as expressed in the CWA. text is ambiguous, a reviewing court licensed or permitted activities by One commenter questioned the EPA’s will defer to the implementing Agency’s requiring compliance with water quality claim that it has the power to alter permissible interpretation. Where, as in requirements, as defined in this final ‘‘unwise’’ judicial decisions. A few CWA section 401(a), Congress used rule. commenters stated that Chevron unambiguous terms like ‘‘which shall Since at least 1973, the EPA has deference does not give a federal agency not exceed one year’’ and ‘‘after the issued memoranda and guidance the power to rewrite federal law, and receipt of such request,’’ it is reasonable, documents, and the Department of they asserted, citing INS v. Cardozo- indeed necessary, for the Agency to Justice has filed briefs in various court Fonseca, 480 U.S. 421 (1987); Adams apply the plain meaning of those terms cases on behalf of the EPA, addressing Fruit Co. v. Barrett, 494 U.S. 638, 649– when drafting its implementing section 401. Only a handful of these 650 (1990); Encino Motorcars, LLC. v. regulations. Where terms are documents address the scope of section Navarro, 136 S. Ct. 2117 (2016); and ambiguous, such as ‘‘other appropriate 401, and none was the product of a Kisor v. Wilkie, 139 S. Ct. 2400, 2417 requirement of State law’’ in CWA holistic examination of the statute or its (2019), that the proposed rule falls section 401(d), the EPA is authorized to legislative history. As a result, these outside the scope of Chevron deference. fill the congressional gap and supply a documents included little or no A few commenters argued that the reasonable interpretation. Brand X explanation for the Agency’s proposal’s ‘‘holistic’’ review supports the EPA’s authority to interpret interpretations. For example, in 1989, inappropriately found ambiguity in the ambiguous terms in section 401 and its the EPA issued a guidance document statutory language to justify drastic ability to make reasonable regulatory asserting that a section 401 certification changes to the federal-State relationship choices. That case recognizes that an could broadly address ‘‘all of the that section 401 established. These Agency’s statutory interpretation is potential effects of a proposed activity commenters argued that instances precluded only when, in a prior on water quality—direct and indirect, where federal authority is encroaching decision, a court concluded that its short and long term, upstream and on State authority warrant heightened contrary interpretation was compelled downstream, construction and concern, citing SWANCC, 531 U.S. 159, by the plain language of the relevant operation. . . .’’ EPA, Wetlands and 173 (2001), and asserted that any text. Brand X, 545 U.S. at 982 (‘‘[A] 401 Certification 23 (April 1989). The changes must be based on a clear court’s prior judicial construction of a guidance document’s only explanation statement from Congress. statute trumps an agency construction for this assertion is a reference to Other commenters stated that the otherwise entitled to Chevron deference section 401(a)(3), which provides that a divergent language of section 401(a) and only if the prior court decision holds certification for a construction permit section 401(d) creates ambiguity that that its construction follows from the needs to be resolved. These commenters unambiguous terms of the statute and may also be used for an operating argued that the EPA’s proposed thus leaves no room for agency permit that requires certification. The interpretation is reasonable and discretion.’’). None of the EPA guidance document, which did not necessary to fill that statutory gap. One interpretations upon which its final undergo notice and comment commenter stated that the EPA correctly regulatory language is based, including procedures, does not provide any recognized that the Court’s reliance on the Agency’s decision that section analysis to support its assertion that a Chevron deference in PUD No. 1 was 401(d) limitations and requirements certification could address all potential entirely misplaced, as the Court did not may be placed only on the ‘‘discharge’’ impacts from the ‘‘proposed activity’’ as begin by first identifying an ambiguity and not on the ‘‘activity,’’ are opposed to the discharge. Several years in the statute, and the Court ignored the inconsistent with that principle. later, the United States filed an amicus fact that the EPA’s own regulations at brief in the Supreme Court on behalf of the time spoke only in terms of G. Legal Construct for the Final Rule the EPA in the PUD No. 1 case. The ‘‘discharges.’’ A number of commenters As the preceding discussion amicus brief asserted that petitioners agreed with the EPA’s proposal to demonstrates, the most challenging were ‘‘mistaken’’ in their contention address the ambiguities in the CWA aspects of section 401 concern the scope that the State’s minimum flow condition statutory language and the inconsistent of review and action on a certification is outside the scope of section 401 application of the current regulations request. The Agency is finalizing a because the condition would be valid that impact project applicants and other regulation that will clarify these aspects ‘‘if it is necessary to assure that States’ sovereignty. These commenters and provide additional regulatory discharges resulting from the project agreed that the proposed rule would certainty for States, Tribes, federal will comply with applicable provisions promote regulatory certainty, help agencies, and project proponents on the of the CWA or ‘any other appropriate streamline the federal licensing and timing and procedural requirements of requirement of State law.’ ’’ See Brief for permitting process for critical the CWA. This section summarizes the United States as Amicus Curiae infrastructure development, enhance the some of the core legal principles that Supporting Affirmance, PUD No. 1 of ability of project proponents to plan for inform this final rule, and section III of Jefferson County v. Washington Dep’t of construction, and facilitate early and this notice describes how the Agency is Ecology, No. 92–1911 at 11–12 (Dec. constructive engagement between applying those legal principles to 1993) (emphasis added). The brief went permittees, States or authorized Tribes, support the final rule. on to identify ‘‘two distinct discharges’’ and federal agencies to ensure that that would result from the petitioner’s proposed projects will be protective of 1. Scope of Certification facility and that would violate the CWA. local water quality. The EPA has for the first time The amicus brief did not offer an As discussed in section II.F.5 of this conducted a holistic analysis of the text, affirmative interpretation to harmonize notice, Chevron supplies the structure, and history of CWA section the different language in sections 401(a)

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and 401(d) and instead relied on the discharge of pollutants into waters of consider effects of an activity rather plain language in section 401(a). More the United States specifically. than a discharge would invoke the outer than a decade later, the United States’ In its recent decision in County of limits of power that Congress delegated Supreme Court amicus brief in the S.D. Maui, Hawaii v. Hawaii Wildlife Fund, to the Agency under the CWA. The Warren case adopted without et al., No. 18–260, the Supreme Court imposition of conditions unrelated to explanation the Supreme Court’s reaffirmed that ‘‘Congress’ purpose as water quality is not consistent with the analysis in PUD No. 1 that once section reflected in the language of the Clean scope of the CWA generally or section 401 is triggered by a discharge, a Water Act is to ‘restore and maintain the 401. There is nothing in the text of the certification can broadly cover impacts ... integrity of the Nation’s waters,’ statute or its legislative history that from the entire activity. Finally, in 2010, § 101(a)’’ (Op. at 2, emphasis added) and signals that Congress intended to the EPA issued its now-rescinded underscored the importance of impose, using section 401, federal Interim Handbook, which included a interpreting the statutory text ‘‘in light requirements on licensed or permitted number of recommendations on scope, of the statute’s language, structure, and activities beyond those addressing water timing, and other issues, none of which purposes’’ in a manner that avoids the quality-related impacts. Indeed, were supported with robust analysis or creation of ‘‘a massive loophole in the Congress knows how to craft statutes to interpretation of the Act. The Interim permitting scheme that Congress require consideration of multi-media Handbook, which did not undergo established’’ that would ‘‘allow[ ] easy effects (see, e.g., NEPA), and has notice and comment procedures either, evasion of the statutory provision’s enacted specific statutes addressing also did not reference the fact that the basic purposes.’’ (Op. at 12, 15 (April impacts to air (Clean Air Act), wildlife 1971 certification regulations were not 23, 2020)). The EPA’s interpretation of (Endangered Species Act), and cultural updated after the CWA was enacted in the scope of CWA section 401 as limited resources (National Historic 1972. to considerations of water quality is Preservation Act), by way of example.23 This rulemaking is the first time that fully consistent with these fundamental Subsequent congressional action principles and respects the the EPA has undertaken a holistic directly addressing a particular subject congressional scheme at issue in County review of the text of section 401 in the is relevant to determining whether a of Maui. As discussed below and larger context of the structure and previously adopted statute reaches that throughout the preamble, this is also legislative history of the 1972 Act and subject matter. See FDA v. Brown & true of the Agency’s other textual earlier federal water protection statutes, Williamson Tobacco Corp., 529 U.S. interpretations that inform the and the first time the Agency has 120, 155 (2000) (determining that definitions and requirements of this rule subjected its analysis to public notice ‘‘actions by Congress over the past 35 relating to, for example, ‘‘discharge,’’ ‘‘a and comment. The final rule is informed years’’ that addressed tobacco directly, reasonable period of time (which shall when ‘‘taken together,’’ ‘‘preclude[d] an by this holistic review and presents a not exceed one year,’’ ‘‘water quality interpretation’’ that a previously framework that the EPA considers to be requirements,’’ and ‘‘any other adopted statute, the Food, Drug, and most consistent with the text of the Act appropriate requirement of State law.’’ Cosmetic Act, ‘‘grant[ed] the FDA and congressional intent. After The EPA is aware that some certifying jurisdiction to regulate tobacco considering and taking into account the authorities may have previously products.’’). comments submitted on the proposed interpreted the scope of section 401 in If Congress had intended section 401 rule, the Agency has made some a way that resulted in the incorporation of the CWA to authorize consideration enhancements in this final rule to of non-water quality-related or the imposition of certification appropriately capture the scope of considerations into their certification conditions based on air quality or authority for granting, conditioning, review process. For example, certifying transportation concerns, public access denying, and waiving a section 401 authorities have on occasion required in to waters, energy policy, or other multi- certification. For further discussion and a certification condition the media or non-water quality impacts, it response to comments on the scope of construction of biking and hiking trails, would have provided a clear statement certification, see section III.E of this requiring one-time and recurring to that effect. Neither the CWA nor notice. payments to State agencies for section 401 contains any such clear a. Water Quality improvements or enhancements that are statement. In fact, Congress specifically unrelated to the proposed federally contemplated a broader policy direction The EPA concludes that the scope of licensed or permitted project, and the in the 1972 amendments that would a State’s or Tribe’s section 401 review or creation of public access for fishing have authorized the EPA to address action is not unbounded and must be along waters of the United States. impacts to land, air, and water through limited to considerations of water Certifying authorities have also implementation of the CWA, but it was quality. Clarifying the proper scope in attempted to address all potential rejected.24 The Agency has concluded this manner aligns with the objective of environmental impacts from the the CWA to restore and maintain water creation, manufacture, or subsequent 23 See, e.g., 42 U.S.C. 4321 et seq. (NEPA); 42 quality (see CWA section 101(a)) use of products generated by a proposed U.S.C. 7401 et seq. (Clean Air Act); 16 U.S.C. 1531 Moreover, there is no suggestion in federally licensed or permitted activity et seq. (Endangered Species Act); and 16 U.S.C. 470 either the plain language or the et seq. (National Historic Preservation Act). or project that may be identified in an 24 As Congress drafted the 1972 CWA structure of the statute that Congress environmental impact statement or amendments, the House bill (H.R. 11896) included envisioned section 401 to authorize environmental assessment, prepared section 101(g) within its ‘‘Declaration of Goals and action beyond that which is necessary to pursuant to the NEPA or a State law Policy’’ providing, ‘‘(g) In the implementation of this Act, agencies responsible therefor shall address water quality directly. Indeed, equivalent. This includes, for example, consider all potential impacts relating to the water, as described in greater detail above, the consideration of impacts associated land, and air to insure that other significant 1972 amendments to the CWA resulted with air emissions and transportation environmental degradation and damage to the in the enactment of a comprehensive effects. health and welfare of man does not result.’’ H.R. 11896, 92nd Cong. (1971) (emphasis added). scheme designed to prevent, reduce, The Agency has concluded that Section 101(g) of the House bill was ‘‘eliminated’’ and eliminate pollution in the nation’s interpreting the scope of section 401 to at conference, and the Act was ultimately passed waters generally, and to regulate the allow States and Tribes to regulate and with no federal policy, goal, or directive to address

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that inclusion of the phrase ‘‘any other the EPA’s interpretation, as it frequently apply only to things of the same general appropriate requirement of State law’’ in notes that the focus of the section is on kind or class specifically mentioned. section 401(d) hardly provides clear assuring compliance with water quality See Wash. State Dept. of Social and direction from Congress that section requirements and water quality Health Services v. Keffeler, 537 U.S. 401(d) could extend beyond water standards and the elimination of any 371, 383–85 (2003). Here, the general quality. Therefore EPA concludes that discharges of pollutants. See, e.g., S. term ‘‘appropriate requirement’’ in section 401(d)—like section 401(a) and Rep. No. 92–414, at 69 (1971). section 401(d) follows an enumeration the rest of the Act—is limited to The CWA does not define what is an of four specific sections of the CWA that considerations of ‘‘water quality.’’ 25 ‘‘appropriate requirement’’ of State law are all focused on the protection of Pursuant to the plain language of for purposes of adding conditions to a water quality from point source section 401, when a State or authorized section 401 certification.28 In discharges to waters of the United Tribe (and in some cases, the EPA) interpreting this term, the Agency States.29 Given the text, structure, issues a certification, it has determined acknowledges the need to respect the purpose, and legislative history of the that the discharge into waters of the clear policy direction from Congress to CWA and section 401, and informed by United States from a proposed federally recognize and preserve State authority important policy considerations and the licensed or permitted activity will over land and water resources within Agency’s expertise, the EPA interprets comply with applicable effluent their borders, see 33 U.S.C. 1251(b), and ‘‘appropriate requirement’’ for section limitations for new and existing sources the Agency must avoid interpretations 401 certification purposes to include (CWA sections 301, 302, and 306), water of the CWA that infringe on traditional those provisions of State or Tribal law quality standards and implementation State land use planning authority. See that contain requirements for point plans (section 303), toxic pretreatment SWANCC, 531 U.S. at 172–73; Will, 491 source discharges into waters of the U.S. at 65. One interpretation of this effluent standards (section 307), and— United States, including provisions that clause in section 401(d) could be that it by way of its power to add conditions are more stringent than federal law. See authorizes the denial of certification or pursuant to section 401(d)—other S. Rep. No. 92–414, at 69 (1971) (‘‘In the imposition of conditions in a federal ‘‘appropriate requirements’’ of State or addition, the provision makes clear that license or permit based on non-water Tribal law. 33 U.S.C. 1341(a)(1), (d). The any water quality requirements quality-related impacts if those enumerated CWA provisions identify established under State law, more requirements are based on any existing requirements to ensure that discharges stringent than those requirements State or Tribal law. Such an of pollutants do not degrade water established under the Act, shall through 26 interpretation, however, is quality, and specifically referenced certification become conditions on any throughout section 401 is the counterintuitive in a statute aimed at protecting the ‘‘chemical, physical, and Federal license or permit.’’). In this requirement to ensure compliance with respect, the EPA agrees with the logic of ‘‘applicable effluent limitations’’ and biological integrity of the nation’s waters.’’ For example, it is difficult to Justice Thomas’s dissent in PUD No. 1, ‘‘water quality requirements,’’ wherein he concludes that ‘‘the general underscoring the focused intent of this imagine what guiding principle would help one determine whether to import reference to ‘appropriate’ requirements provision on the protection of water of State law is most reasonably quality from discharges.27 See 33 U.S.C. state labor law or professional licensing requirements into a section 401 construed to extend only to provisions 1341(a), (b), (d). The legislative history that, like other provisions in the list, for the Act provides further support for certification; such requirements could arguably be relevant to a dam project, impose discharge-related restrictions.’’ PUD No. 1, 511 U.S. at 728 (Thomas, J., non-water quality impacts through the CWA. S. but mere relevance is not nearly Rep. 92–1236, at 100 (1972) (Conf. Rep.). sufficient to sweep these types of laws dissenting). The Agency’s interpretation 25 The Agency also concludes that the term within the ambit of an environmental gives meaning to Congress’s decision to ‘‘applicant’’ in section 401(d) creates ambiguity in statute aimed at water quality. The CWA use the word ‘‘appropriate’’ in the the statute. See section II.G.1.b of this notice for does not give EPA a clear basis to phrase ‘‘any other appropriate discussion of the use of the term ‘‘applicant’’ in requirement of State law set forth in section 401(d). venture into such regulatory arenas, 26 For example, CWA section 306 defines the which (in the absence of clearly such certification.’’ standard of performance for new sources of expressed congressional direction) are Consistent with the proposal, the final discharges as ‘‘a standard for the control of the discharge of pollutants which reflects the greatest more appropriately reserved to the rule limits the scope of section 401 and degree of effluent reduction which the powers of the States, ‘‘powers with the term ‘‘appropriate requirements of Administrator determines to be achievable through which Congress does not readily State law’’ to those requirements application of best available demonstrated control interfere.’’ Gregory, 501 U.S. at 461 directly related to water quality. As technology, processes, operating methods, or other alternatives, including, where practicable, a (describing the ‘‘plain statement rule’’). discussed in greater detail in section standard permitting no discharge of pollutants.’’ 33 The Agency does not believe that III.E.2.b of this notice, the final rule U.S.C. 1316(a)(1). Section 303 notes that new or Congress intended the phrase ‘‘any definition of ‘‘water quality revised state water quality standards ‘‘[s]hall be other appropriate requirement of State requirements’’ has been modified from such as to protect the public health or welfare, law’’ to be read so broadly. Instead, the enhance the quality of water and serve the purposes the proposal, but does not stray from the of this chapter.’’ Id. at 1313(c)(2)(A). ejusdem generis canon helps to inform core principle and focus of Title IV of 27 The term ‘‘effluent limit’’ is defined as, ‘‘any the appropriate interpretation of the the CWA—to protect the quality of restriction established by a State or the statutory text. Under this principle, waters of the United States from point Administrator on quantities, rates, and where general words follow an source discharges. concentrations of chemical, physical, biological, and other constituents which are discharged from enumeration of two or more things, they point sources into navigable waters, the waters of 29 See Section II.G.1.c for further discussion on the contiguous zone, or the ocean, including 28 The EPA notes that during congressional point source discharges to waters of the United schedules of compliance[,]’’ 33 U.S.C. 1362(11); and hearings on the 1972 amendments, the House States in the context of section 401. Although the CWA requires that ‘‘water quality standards’’ Committee was presented with testimony that the section 401(a) mentions five sections of the CWA, developed by states and tribes ‘‘consist of the term ‘‘applicable water quality requirements’’ section 401(d) omits section 303. In PUD No. 1, the designated uses of the navigable waters involved should be defined, but no definition was included Court interpreted section 303 to be included in and the water quality criteria for such waters based in the enacted bill. See section III.E.2.b for further section 401(d) by reference to section 301. PUD No. upon such uses.’’ Id. at 1313(c)(2)(A). discussion on this legislative history. 1, 511 U.S. at 712–13.

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b. Activity or Discharge entity that has applied for a grant, a reasonable, and permissible, meaning to 31 Based on the text, structure, and permit, or some other authorization. the term ‘‘appropriate’’ in the phrase legislative history of the CWA, the EPA Importantly, the term is also used in ‘‘any other appropriate requirement of is affirming under this final rule that a section 401(a) to identify the person State law set forth in such certification.’’ certifying authority’s review and action responsible for obtaining the The textual history and legislative under section 401 must be limited to certification: ‘‘Any applicant for a history of section 401, discussed below, water quality impacts from the potential Federal license or permit to conduct any provide additional support for this discharge associated with a proposed activity including, but not limited to, interpretation. federally licensed or permitted project. the construction or operation of Section 401 was updated as part of Section 401(a) explicitly provides that facilities, which may result in any the 1972 CWA amendments to reflect the certifying authority, described as discharge into the navigable waters, the restructuring of the Act, as described ‘‘the State in which the discharge shall provide the licensing or permitting in section II.F.1 of this notice. Two originates or will originate,’’ must agency a certification from the State important phrases were modified certify that ‘‘any such discharge will . . . .’’ In the section 401 context, the between the 1970 and the 1972 versions comply with the applicable provisions term ‘‘applicant’’ also may include in of section 401 that help explain what of sections 301, 302, 303, 306, and 307 some circumstances the federal Congress intended with the 1972 of this Act’’ (emphasis added). The licensing or permitting agency, such as amendments. First, the 1970 version plain language of section 401(a) where the federal agency is seeking provided that an authority must certify therefore directs authorities to certify certification for a general license or ‘‘that such activity . . . will not violate that the discharge resulting from the permit. water quality standards.’’ Public Law proposed federally licensed or Relying on the presence of the term 91–224 § 21(b)(1) (emphasis added). permitted project will comply with the ‘‘applicant’’ in section 401(d) to Significantly, Congress modified this CWA. Section 401(d) uses different interpret section 401(d) as allowing language in 1972, requiring an authority language and requires the certifying certification conditions that are to certify ‘‘that any such discharge shall authority to ‘‘set forth any effluent unrelated to a discharge would expand comply with the applicable provisions limitations and other limitations, and section 401 regulatory authority beyond of [the CWA].’’ 33 U.S.C. 1341(a) the scope of those sections of the Act (emphasis added). On its face, this monitoring requirements necessary to enumerated in section 401. Those modification made the 1972 version of assure that any applicant for a Federal enumerated CWA sections focus on section 401 consistent with the overall license or permit will comply with any regulating discharges to waters of the framework of the amended statutory applicable effluent limitations and other United States. The Agency is not aware regime, which focuses on regulating limitations, under section 301 or 302 of of any other instance in which the term discharges to attain water quality this title, standard of performance under ‘‘applicant’’ (or permittee or owner or standards and adds new federal section 306 of this title, or prohibition, operator) as used in the CWA has been regulatory programs to achieve that effluent standard, or pretreatment interpreted to significantly expand the purpose. 33 U.S.C. 1311, 1312, 1313, standard under section 307 of this title, jurisdictional scope or meaning of the 1316, 1317, 1342 and 1344. and with any other appropriate statute. The Agency therefore Second, the 1972 version included requirement of State law set forth in section 401(d) for the first time. This 30 understands the term ‘‘applicant’’ in such certification’’ (emphasis added). section 401(d) as merely identifying the provision authorizes conditions to be The use of the term ‘‘applicant’’ in person or entity responsible for imposed on a certification ‘‘to assure section 401(d)—instead of ‘‘discharge’’ obtaining and complying with the that any applicant for a Federal license as found in section 401(a)—creates certification and any associated or permit will comply with any ambiguity, and has been interpreted as conditions and not as expanding the applicable effluent limitations and other broadening the scope of section 401(a), regulatory scope of that section. This limitations, under section 301 or 302 of beyond consideration of water quality interpretation of the term ‘‘applicant,’’ this Act, standard of performance under impacts from the ‘‘discharge’’ which which appropriately ties the term to the section 306 of this Act, or prohibition, triggers the certification requirement, to discharges that are the regulatory focus effluent standard, or pretreatment allow certification conditions that of section 401 as a whole and to the standard under section 307 of this Act, address water quality impacts from any purposes of this section, is consistent and with any other appropriate aspect of the construction or operation with and supported by the use in requirement of State law set forth in of the activity as a whole. See PUD No. section 401(d) of the phrase ‘‘applicant such certification ....’’Id. at 1341(d). 1, 511 U.S. at 712. for a Federal license or permit,’ which This new section also requires such The ordinary meaning of the word refers back to the fuller phrase set forth conditions to be included in the federal ‘‘applicant’’ is ‘‘[o]ne who applies, as for at the beginning of section 401(a): license or permit. Id. a job or admission.’’ See Webster’s II, ‘‘applicant for a Federal license or Together, these amendments to the New Riverside University Dictionary permit to conduct any activity ... pre-1972 statute focus section 401 on (1994). In section 401(d), this term is which may result in any discharge into discharges that may affect water quality, used to describe the person or entity the navigable waters.’’ (Emphasis enumerate newly created federal that applied for the federal license or added.) This interpretation also gives regulatory programs with which section permit that requires a certification. The 401 mandates compliance, and require use of this term in section 401(d) is 31 See, e.g., 33 U.S.C. 1311 (‘‘An application for that water quality-related certification consistent with the text of the CWA, an alternative requirement under this subsection conditions be included in federal which uses the term ‘‘applicant’’ shall not stay the applicant’s obligation to comply licenses and permits and thereby throughout to describe an individual or with the effluent limitation guideline or categorical pretreatment standard which is the subject of the become federally enforceable. The application.’’); id. at 1344 (‘‘Not later than the legislative history describing these 30 As a matter of practice, the Corps seeks State fifteenth day after the date an applicant submits all changes supports a conclusion that the certification for ‘‘its own discharges of dredged or the information required to complete an application provisions were added intentionally and fill material,’’ ‘‘[a]lthough the Corps does not for a permit under this subsection, the Secretary process and issue permits for its own activities.’’ 33 shall publish the notice required by this with the purpose of making the new CFR 336.1(a)(1). subsection.’’) section 401 consistent with the new

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framework of the Act. Indeed, the 1971 under the Act. As a result, the Agency ‘‘applicant’’ in section 401(d) should Senate Report provided that section 401 now considers a more natural and more mean ‘‘activity.’’ Although some have was ‘‘amended to assure consistency reasonable interpretation of the 1972 argued that the Court’s conclusion is with the bill’s changed emphasis from amendments to be that Congress based on a plain language interpretation water quality standards to effluent rejected the idea that the scope of a of section 401(d), for the reasons limitations based on the elimination of certifying authority’s review or its explained below, the EPA disagrees. any discharge of pollutants.’’ S. Rep. No. conditions should be defined by the The EPA concludes that the use of the 92–414, at 69 (1971). term ‘‘activity.’’ Congress specifically term ‘‘discharge’’ in section 401(a) and An EPA attorney previously analyzed did not carry forward the term ‘‘applicant’’ in section 401(d) creates the modifications made to section 401 ‘‘activity’’ in the operative phrase in ambiguity, that the plain text of 401(d) between the 1970 and 1972 Acts. See section 401(a) and did not incorporate it also is ambiguous, and that neither the Memorandum from Catherine A. Winer, into the new provision authorizing Court’s analysis nor its holding in PUD Attorney, EPA Office of General certification conditions in section No. 1 foreclose alternative Counsel, Water Division, to David K. 401(d). Under basic canons of statutory interpretations. Sabock, North Carolina Department of construction, the EPA begins with the In its discussion of the CWA, the Natural Resources (Nov. 12, 1985).32 In presumption that Congress chose its Supreme Court in PUD No. 1 did not its analysis, the attorney characterized words intentionally. See, e.g., Stone v. analyze section 401 at ‘‘Chevron step the legislative history quoted above as INS, 514 U.S. 386, 397 (1995) (‘‘When one’’ or rely on ‘‘the unambiguous ‘‘not very explicit,’’ and characterized Congress acts to amend a statute, we terms’’ of the CWA to support its the new section 401 language as ‘‘not presume it intends its amendment to reading of section 401. See Brand X, 545 altogether clear.’’ Id. Based on this have real and substantial effect.’’). This U.S. at 982. Instead, the Court analysis, the attorney found at that time is also consistent with the dissent in ‘‘reasonably read’’ section 401(d) ‘‘as that ‘‘the overall purpose of section 401 PUD No. 1, wherein Justice Thomas authorizing additional conditions and is clearly ‘to assure that Federal concluded that ‘‘[i]t is reasonable to limitations on the activity as a whole licensing or permitting agencies cannot infer that the conditions a State is once the threshold condition, the override water quality requirements’ ’’ permitted to impose on certification existence of a discharge, is satisfied.’’ and that ‘‘section 401 may reasonably be must relate to the very purpose the PUD No. 1, 511 U.S. at 712 (emphasis read as retaining its original [i.e., pre- certification process is designed to added). To support what it considered 1972] scope, that is, allowing state serve. Thus, while § 401(d) permits a to be a reasonable reading of section certifications to address any water State to place conditions on a 401(d), the Court looked at the EPA’s quality standard violation resulting from certification to ensure compliance of the 1971 certification regulations at 40 CFR an activity for which a certification is ‘applicant’[,] those conditions must still 121.2(a)(3) and related guidance required, whether or not the violation is be related to discharges.’’ PUD No. 1, available at that time, PUD No. 1, 511 directly caused by a ‘discharge’ in the 511 U.S. at 726–27 (Thomas, J., U.S. at 712, but the Court did not have narrow sense.’’ Id. (citing S. Rep. No. dissenting). The EPA has concluded that before it the EPA’s interpretation of how 92–414, at 69 (1971)). this interpretation is reasonable and the sections 401(a) and 401(d) could be The EPA has now performed a most appropriate reading of the statute harmonized. In fact, the Court either holistic analysis of the text and and related legal authorities. was not aware of or did not mention structure of the CWA, the language of that the EPA’s 1971 certification As described in detail in section section 401, and the amendments made regulations in place at that time II.F.4.a.i of this notice, the Supreme between 1970 and 1972. Based on this predated the 1972 CWA amendments Court in PUD No. 1 considered the review, the EPA now concludes that the and therefore contained outdated scope of a State’s authority to condition 1972 version of section 401 made terminology implementing what was a section 401 certification. In response specific changes to ensure that functionally a different statute. As to petitioners’ argument in that case that discharges were controlled in described above, the EPA’s 1971 certification conditions may only be compliance with the 1972 CWA certification regulations were consistent limited to the ‘‘discharge’’ referenced in regulatory programs and appropriate with the text of the pre-1972 CWA, and section 401(a), the Court noted that requirements of State law. For the they required a State to certify that the ‘‘[t]he text refers to the compliance of reasons noted above in section II.F.1 of ‘‘activity’’ will comply with the Act. the applicant, not the discharge.’’ Id. at this notice, identifying and regulating The 1972 CWA amendments changed 712. Without further analysis of the discharges, as opposed to managing this language to require a State to certify ambiguity created by the use of the term ambient water quality, promotes that the ‘‘discharge’’ will comply with ‘‘applicant’’ in section 401(d), the Court accountability and enforcement of the the Act. concluded that ‘‘§ 401(d) is most Act in a way that the 1970 and earlier Based in part on what the EPA now reasonably read as authorizing versions did not. The EPA also observes recognizes was infirm footing, the Court additional conditions and limitations on that, had Congress intended the 1972 found that ‘‘EPA’s conclusion that the activity as a whole once the amendments to retain the original scope activities—not merely discharges—must threshold condition, the existence of a concerning ‘‘activity,’’ it could have comply with state water quality discharge, is satisfied.’’ Id. at 712. The easily crafted section 401(d) to authorize standards is a reasonable interpretation Court did not grapple with the range of certification conditions to assure that of § 401 and is entitled to deference.’’ Id. actions that its interpretation may ‘‘the activity’’ would comply with the (emphasis added). As amicus curiae in require of the applicant, or whether the specified CWA provisions, but it did the Supreme Court, the United States entire range would or should be within not. Instead, Congress’ use of the term did not seek Chevron ‘‘deference for the the scope of section 401. The Court did ‘‘discharge’’ in section 401(a) frames the EPA’s regulation in [the PUD No. 1 not evaluate or find support for its scope of the certification requirement case]’’ or for the EPA’s interpretation of interpretation in the legislative history section 401. Id. at 729 (Thomas, J., of the 1972 amendments to the CWA, dissenting). In fact, the United States’ 32 Available at https://www.epa.gov/sites/ production/files/2015-01/documents/standards- nor did the Court find that Congress had amicus brief for the Court did not marinas-memo.pdf. established an intent that the term analyze or interpret the different

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language in sections 401(a) and 401(d) source discharge from a proposed Additionally, public commenters noted and instead asserted that it was federally licensed or permitted project. that many state Attorneys General unnecessary to harmonize the The text of section 401(a) clearly submitted comments on the Agency’s provisions to resolve the dispute. See specifies that certification is required for rulemaking to define ‘‘waters of the Brief for the United States as Amicus any federal license or permit to United States’’ asserting that modifying Curiae Supporting Affirmance, PUD No. ‘‘conduct any activity . . . which may that definition would modify the scope 1 of Jefferson County v. Washington result in any discharge into the of state review under section 401, Dep’t of Ecology, No. 92–1911 at 12 n. navigable waters’’ (emphasis added). further supporting the EPA’s 2 (Dec. 1993). The amicus brief asked Prior interpretations extending section interpretation that section 401 is limited the Court to analyze the two undisputed 401 applicability beyond such waters to waters of the United States. discharges from the proposed federally conflict with and would render In Oregon Natural Desert Association licensed project and to determine meaningless the plain language of the v. Dombeck, the Ninth Circuit relied on whether they would cause violations of statute. And although the statute does the text and structure of section 401 to the State’s water quality standards. Id. at not define with specificity the meaning interpret the meaning of ‘‘discharge’’ in 11–16. of the unqualified term discharge, section 401. 172 F.3d 1092 (9th Cir. Given the circumstances of the PUD interpreting section 401 to cover all 1998). In that case, a citizen’s No. 1 litigation, and the fact that the discharges without qualification would organization challenged a decision by Supreme Court did not analyze section undercut the bedrock structure of the the U.S. Forest Service to issue a permit 401 under Chevron step 1 or rely on CWA regulatory programs, which are to graze cattle on federal lands without unambiguous terms in the CWA to focused on addressing point source first obtaining a section 401 certification support its interpretation of the statute, discharges to waters of the United from the State of Oregon. The PUD No. 1 does not foreclose the States. CWA section 502(14) defines government argued that a certification Agency’s interpretation of section 401 in ‘‘point source’’ as ‘‘any discernible, was not needed because the this final rule. See Brand X, 545 U.S. at confined and discrete conveyance, ‘‘unqualified’’ term ‘‘discharge’’—as 982–83. The Supreme Court’s ‘‘choice of including but not limited to any pipe, used in CWA section 401—is ‘‘limited one reasonable reading’’ of section 401 ditch, channel, tunnel, conduit, well, to point sources but includes both does not prevent the EPA ‘‘from later discrete fissure, container, rolling stock, polluting and nonpolluting releases.’’ adopting a different reasonable concentrated animal feeding operation, Id. at 1096. Finding that the 1972 interpretation.’’ 33 Eurodif S.A., 555 U.S. or vessel or other floating craft, from amendments to the CWA ‘‘overhauled at 315. An agency may engage in ‘‘a which pollutants are or may be the regulation of water quality,’’ the formal adjudication or notice-and- discharged.’’ 34 court said that ‘‘[d]irect federal comment rulemaking’’ to articulate its As described in section II.F.1 of this regulation [under the CWA] now interpretation of an ambiguous statute. notice, the CWA is structured such that focuses on reducing the level of effluent Christensen v. Harris County, 529 U.S. the federal government provides that flows from point sources.’’ Id. The 576, 587 (2000). When it does, courts assistance, technical support, and grant court stated that the word ‘‘discharge’’ apply ‘‘Chevron-style’’ deference to the money to assist States in managing all as used consistently in the CWA refers agency’s interpretation. Id. That is of the nation’s waters. By contrast, the to the release of effluent from a point exactly what the EPA is doing in this federal regulatory provisions, including source. Id. at 1098. The court found that final rule. The EPA has for the first time, CWA sections 402 and 404, apply only cattle—even if they wade in a stream— holistically interpreted the text of to point source discharges to waters of are not point sources. Id. at 1098–99. sections 401(a) and 401(d) to support the United States. 33 U.S.C. 1362(7). Accordingly, the court held that this update to the Agency’s 1971 Section 401 is the first section of Title certification under section 401 was not certification regulations while ensuring IV of the CWA, titled Permits and required. Id. at 1099. consistency with the plain language of Licenses, and it requires water quality- The EPA previously suggested that the 1972 CWA. related certification conditions to be the scope of section 401 may extend to legally binding and federally c. Discharges From Point Sources to nonpoint discharges to non-federal enforceable conditions of federal Waters of the United States waters 35 once the requirement for the licenses and permits. Id. at 1341(d). section 401 certification is triggered. Based on the text, structure, and Similar to the section 402 and 404 purpose of the Act, the history of the Specifically, in the EPA’s now- permit programs, section 401 is a core withdrawn Interim Handbook, the 1972 CWA amendments, relevant regulatory provision of the CWA. legislative history, and supporting case Agency included the following Accordingly, the scope of its application paragraphs, law, and informed by important policy is most appropriately interpreted, considerations and the Agency’s consistent with the other federal The scope of waters of the U.S. protected expertise, the EPA has concluded that a regulatory programs, as addressing point under the CWA includes traditionally certifying authority’s review and action navigable waters and also extends to include source discharges into waters of the territorial seas, tributaries to navigable under section 401 is limited to water United States. waters, adjacent wetlands, and other waters. quality impacts to waters of the United The EPA is not aware of any court Since § 401 certification only applies where States resulting from a potential point decisions that have directly addressed there may be a discharge into waters of the the scope of waters covered by section U.S., how states or tribes designate their own 33 The EPA is not modifying the Agency’s 401; however, the plain text of section waters does not determine whether § 401 longstanding interpretation of the Act that was 401 is clear and EPA’s interpretation is certification is required. Note, however, that confirmed by the Court in PUD No. 1 that ‘‘a water once § 401 has been triggered due to a quality standard must ‘consist of the designated supported by legislative history (see section II.G.1.b of this notice). potential discharge into a water of the U.S., uses of the navigable waters involved and the water additional waters may become a quality criteria for such waters based upon such consideration in the certification decision if uses’ ’’ and that ‘‘a project that does not comply 34 In the section 404 context, point sources it [sic] is an aquatic resource addressed by with a designated use of the water does not comply include bulldozers, mechanized land clearing with the applicable water quality standards.’’ 511 equipment, dredging equipment, and the like. See, U.S. at 714–15 (emphasis in original; quoting 33 e.g., Avoyelles Sportsmen’s League, Inc. v. Marsh, 35 Non-federal waters refer to those waters that are U.S.C. 1313(c)(2)(A)). 715 F.2d 897, 922 (5th Cir. 1983). not waters of the United States.

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‘‘other appropriate provisions of state [or on, or that affect, non-federal waters, discussion on the Agency’s tribal] law.’’ that single word (‘‘applicant’’) would interpretation and comments received * * * * * effectively broaden the scope of the on discharges under section 401, see Section 401 applies to any federal permit federal regulatory programs enacted by section III.A.2.a of this notice. or license for an activity that may discharge the 1972 CWA amendments beyond the into a water of the U.S. The Ninth Circuit limits that Congress intended. Such an 2. Timeline for Section 401 Certification Court of Appeals ruled that the discharge interpretation could permit the Analysis must be from a point source, and agencies in application of the CWA’s regulatory Based on the language of the CWA other jurisdictions have generally adopted the requirement. Once these thresholds are programs, including section 401 and consistent with the relevant case met, the scope of analysis and potential certification conditions that are law, the EPA is clarifying that a conditions can be quite broad. As the U.S. enforced by federal agencies, to land certifying authority must act on a Supreme Court has held, once § 401 is and water resources more appropriately section 401 certification within a triggered, the certifying state or tribe may subject to traditional State land use reasonable period of time, which shall consider and impose conditions on the planning authority where not otherwise not exceed one year, and that there is no project activity in general, and not merely on preempted by federal law. See, e.g., tolling provision to stop the clock at any the discharge, if necessary to assure SWANCC, 531 U.S. at 172–73. time. compliance with the CWA and with any As described in section II.F.4.a.i of The text of section 401 expressly other appropriate requirement of state or this notice and pursuant to its authority tribal law. states that a certifying authority must to reasonably interpret ambiguous act on a section 401 certification request Interim Handbook, 5, 18 (citations statutes to fill gaps left by Congress, the within a reasonable period of time, omitted). To support the first referenced EPA is interpreting the language in which shall not exceed one year. 33 paragraph on the scope of waters, the sections 401(a) and (d) differently than U.S.C. 1341(a)(1). Importantly, as the Interim Handbook cited section 401(d), the Supreme Court did in PUD No. 1. words ‘‘shall not exceed’’ suggest, the presumably referring to the use of the The Court’s prior interpretation, that CWA does not guarantee that a term ‘‘applicant’’ rather than once a ‘‘discharge’’ triggers the certifying authority may take a full year ‘‘discharge’’ used in section 401(a).36 To certification requirement in section to act on a section 401 certification support the second paragraph on the 401(a) the certification itself may cover request. The certifying authority may be scope of discharges, the Interim the entire ‘‘activity,’’ was not based on subject to a shorter period of time, Handbook cited the PUD No. 1 and S.D. the plain unambiguous text of the provided it is reasonable. See Hoopa Warren Supreme Court decisions. It statute, but rather was based on the Valley Tribe v. FERC, 913 F.3d 1099, appears that both paragraphs from the Court’s own interpretation of ambiguous 1104 (DC Cir. 2019) (‘‘Thus, while a full Agency’s Interim Handbook relied on text in light of the interpretation of the year is the absolute maximum, it does the PUD No. 1 Court’s interpretation of statute set forth in the 1971 certification not preclude a finding of waiver prior to the ambiguity created by the different regulations (see section II.F.4.a.i of this the passage of a full year. Indeed, the language in sections 401(a) and notice). The EPA’s interpretation under [EPA]—the agency charged with 401(d).37 this final rule is also based on a administering the CWA—generally finds For many of the same reasons why the reasonable interpretation of the text, a state’s waiver after only six months.’’ Agency is not interpreting the use of the structure, and legislative history of (citing 40 CFR 121.16)). The CWA’s word ‘‘applicant’’ in section 401(d) as section 401 and is informed by legislative history indicates that broadening the scope of certification important policy considerations and the inclusion of a maximum period of time beyond the discharge itself, the Agency Agency’s expertise, and the Agency’s was to ‘‘insure that sheer inactivity by is also declining to interpret section current rule is not foreclosed by the the [certifying authority] will not 401(d) as broadening the scope of waters Court’s prior interpretation. See Brand frustrate the Federal application.’’ H.R. and the types of discharges to which the X, 545 U.S. at 982. Rep. No. 92–911, at 122 (1972). For the reasons above, the EPA is CWA federal regulatory programs apply. The timeline for action on a section concluding that section 401 is a As an initial matter, the Agency agrees 401 certification must conclude within regulatory provision that creates with the Ninth Circuit’s analysis and a reasonable period of time (not to federally enforceable requirements, and holding in Dombeck that section 401 exceed one year) after receipt of a for this and other reasons, its certification is not required for nonpoint certification request. Id.; 33 U.S.C. application must be limited to point source discharges. Oregon Natural 1341(a)(1). The CWA does not specify source discharges into waters of the Desert Association v. Dombeck, 172 any legal requirements for what United States. This interpretation is F.3d 1092, 1098–99 (9th Cir. 1998). constitutes a request or otherwise define Were the Agency to interpret the use in consistent with the text and structure of the CWA as well as the principal the term. As discussed further in section section 401(d) of the term ‘‘applicant’’ III.C, this final rule addresses that instead of the term ‘‘discharge’’ as purpose of this rulemaking, i.e., to ensure that the EPA’s regulations ambiguity to provide additional clarity authorizing the federal government to and regulatory certainty. Additionally, implement and enforce CWA conditions (including those defining a section 401 certification’s scope) are consistent with 38 territorial seas.’’); 118 Cong, Rec. 33,692, 33,698 36 Interim Handbook, at 5 n. 23. Tellingly, the current CWA. For further (1972) (‘‘[t]he Conferees agreed that a State may footnote 23 of the Interim Handbook also states, attach to any Federally issued license or permit ‘‘Note that the Corps may consider a 401 38 Although the legislative history on section 401 such conditions as may be necessary to assure certification as administratively denied where the sometimes lacks clarity and can be internally compliance with water quality standards in that certification contains conditions that require the inconsistent, the Agency’s interpretation is State.’’); S. Rep. No. 92–411, at 69 (1971) (‘‘This Corps to take an action outside its statutory consistent with much of the legislative history from section is substantially 21(b) of existing law authority or are otherwise unacceptable. See, e.g., the 1972 amendments. See, e.g., H.R. Rep. No. 92– amended to assure consistency with the bill’s RGL 92–04, ‘Section 401 Water Quality Certification 911, at 124 (1972) (‘‘It should be clearly noted that changed emphasis from water quality standards to and Coastal Zone Management Act Conditions for the certifications required by section 401 are for effluent limitations based on the elimination of any Nationwide Permits.’’ activities which may result in any discharge into discharge of pollutants.’’ (parentheticals omitted)); 37 The S.D. Warren decision did not analyze or navigable waters. It is not intended that State 117 Cong. Rec. 38,797, 38,855 (1971) (Mr Muskie: adopt the PUD No. 1 Court’s analysis of sections certification is or will be required for discharges ‘‘Sections 401 and 402 provide for controls over 401(a) and 401(d). into the contiguous zone or the oceans beyond the discharge.’’)

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the EPA has long recommended that a this final rule recognizes and responds stated that it was unnecessary and project proponent requiring a federal to significant changes to the CWA that inappropriate for the EPA to compile license or permit subject to section 401 occurred after the 1971 regulations were procedures of certifying authorities. certification hold early discussions with finalized, especially the 1972 and 1977 Some commenters stated that it is not both the certifying authority and the amendments to the CWA. necessary for certifying authorities to federal agency, to better understand the Updating the 1971 certification submit their section 401 certification certification process and potential data regulations to clarify expectations, procedures and regulations to the EPA. or information needs. timelines, and deliverables also One commenter noted that their The CWA does not contain provisions increases efficiencies. Some aspects of procedures are public information for tolling the timeline for any reason, the 1971 certification regulations have available on the state website. Another including to request or receive been implemented differently by commenter stated that a regulation that additional information from the project different authorities, likely because the requires submittal of section 401 proponent. If the certifying authority scope and timing of review were not procedures is unnecessary and has not acted on a request for clearly addressed in EPA’s regulations. duplicative because the State already certification within the reasonable time While the EPA recognizes that States works with the EPA on section 401 period, the certification requirement and Tribes have broad authority to procedures. will be waived and the federal agency implement State and Tribal law to The EPA has considered these may proceed to issue the license or protect their water quality, see 33 U.S.C. comments, and the final rule does not permit. 1251(b), section 401 is a federal include a requirement for certifying The final rule provides for specific regulatory program that contains authorities to submit their procedures to timeframes for certain procedural limitations on when and how States and the EPA. However, to promote requirements (e.g., pre-meeting filing Tribes may exercise this particular transparency and regulatory certainty, requests, discussed in final rule authority. This final rule modernizes the EPA strongly encourages certifying preamble section III.B; and public notice and clarifies the EPA’s regulations and authorities to make their certification when EPA acts as the certifying will help States, Tribes, federal regulations and any ‘‘water quality authority, discussed in final rule agencies, and project proponents know requirements’’ that may be considered preamble section III.H). Throughout this what is required and what to expect during a certification process available final rule, EPA intends that the term during a section 401 certification online. In the interest of transparency, ‘‘days’’ refers to calendar days as process, thereby reducing regulatory clarity, and public accessibility, the EPA opposed to business days. For further uncertainty. For further discussion on may consider compiling certifying discussion on the Agency’s ways the final rule will reduce authorities’ procedures and water interpretation of the timeline for section regulatory uncertainty, see the quality requirements on its website in 401 certification analysis and related Economic Analysis available in the the future. comments, see section III.F of this docket for this final rule. In addition to the substantive changes notice. This final rule is intended to The EPA’s 1971 certification in the final rule described below, the provide greater clarity and certainty and regulations did not fully address the Agency made a number of revisions to to address some of the delays and public notice requirements called for streamline and clarify the regulatory confusion associated with the timing under CWA section 401(a)(1). The EPA text, and to more closely align that text elements of the section 401 certification is finalizing public notice requirements to the language in section 401. These process. applicable to the EPA as the certifying changes include revising the definitions authority but is not extending these of ‘‘Administrator’’ and ‘‘discharge’’; III. Final Rule requirements to other certifying replacing the language ‘‘proposed This final rule is intended to make the authorities. The EPA encourages discharge location’’ in section 121.11(a) Agency’s regulations consistent with the certifying authorities to consider how with ‘‘facility or activity’’ for current text of CWA section 401, their public notice requirements can be consistency with section 401; revising increase efficiencies, and clarify aspects developed or modified to ensure timely certain text in sections 121.7(f), 121.12, of CWA section 401 that have been decision-making and to work with and 121.16 for consistency with section unclear or subject to differing legal federal licensing and permitting 401; and removing redundant language interpretations in the past. The Agency agencies to minimize conflicts between throughout the final rule. is replacing the entirety of the 1971 State program administration and the certification regulations at 40 CFR part federally established reasonable period A. When Section 401 Certification Is 121 with this final rule. The following of time. Required Because the EPA has frequently sections further explain the Agency’s 1. What is the Agency finalizing? rationale for the final rule, provide a received requests for information Under this final rule, the requirement detailed explanation and analysis for regarding certifying authority for a section 401 certification is the substantive changes that the Agency requirements, the Agency solicited triggered based on the potential for any is finalizing, and respond to significant comment on whether it would be federally licensed or permitted activity public comments received on the appropriate or necessary to require to result in a discharge from a point proposed rule. certifying authorities to submit their The EPA’s 1971 certification section 401 procedures and regulations source into waters of the United States. regulations were issued when the to the EPA for informational purposes. Consistent with section 401(a)(1), Agency was but a few months old and One commenter stated that it would be section 121.2 of the final rule provides the CWA had not yet been amended to useful for the EPA to compile that: Certification is required for any include the material revisions to section procedures of certifying authorities and license or permit that authorizes an 401.39 In modernizing 40 CFR part 121, make these publicly available in one location, while another commenter activity that may result in a discharge. 39 See 36 FR 22487, Nov. 25, 1971, redesignated This provision is modified from the at 37 FR 21441, Oct. 11, 1972, further redesignated No. 3 of 1970 (creating the EPA), 84 Stat. 2086, proposal to provide greater clarity at 44 FR 32899, June 7, 1979; Reorganization Plan effective Dec. 2, 1970. regarding when a certification is

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required, but the Agency does not The EPA agrees with commenters that discharge, and therefore promote intend for this change to alter the the language of the statute triggers the compliance with section 401 obligations meaning of the provision from the section 401 certification requirement or clarify that 401 certification is not proposal. This final rule preamble also based on a potential discharge.40 required. One commenter supported a clarifies in section III.M that Section 401 is different from other parts process for determining when a project certification also is required before a of the Act 41 and provides certifying with a potential for a discharge will federal agency issues a general license authorities with a broad opportunity to result in an actual discharge. A few or permit which may result in a review proposed federally licensed or commenters stated that a process for discharge. As discussed further below, permitted projects that may result in a determining whether or not there will in the final rule the term ‘‘discharge’’ is discharge into waters of the United be an actual discharge ignores the defined to mean a point source States within their borders. The Agency statutory phrase ‘‘may result in a discharge into a water of the United does not agree that the concept of discharge,’’ and they asserted that giving States, and the term ‘‘license or permit’’ ‘‘potential’’ must be incorporated into project proponents a role in such a is defined to mean a license or permit the rule text definition of ‘‘discharge’’ process is improper because they have issued by a federal agency to conduct itself; the final rule provision at section no authority to find that section 401 any activity which may result in a 121.2 clearly states that a 401 would not apply. discharge. The final rule reflects that certification is required for ‘‘an activity This final rule does not provide a section 401 is triggered by the potential which may result in a discharge’’ process for certifying authorities or for a discharge to occur, rather than an (emphasis added). project proponents to determine actual discharge. In the proposal, the EPA requested whether a federally licensed or that certifying authorities and project permitted project may have a potential 2. Summary of Final Rule Rationale and proponents submit comment on prior or actual discharge. However, the Public Comment experiences with undertaking the federal agencies whose licenses or Section 121.2 of the final rule is certification process and later permits may be subject to section 401 consistent with the Agency’s determining that the proposed federally should consider whether such longstanding interpretation and is not licensed or permitted project would not procedures, if incorporated into their intended to alter the scope of result in an actual discharge. The EPA implementing regulations, may provide applicability established in the CWA. also requested comment on whether additional clarity within their licensing a. ‘‘Discharge’’ there are specific procedures that could and permitting programs. The EPA be helpful in determining whether a observes that, if a certifying authority or In section 401 and under the final proposed federally licensed or project proponent determines after the rule, the presence of, or potential for, a permitted project will result in an actual certification process is triggered that discharge is a key element of when a discharge, and how project proponents there is no actual discharge from the water quality certification is required. may establish for regulatory purposes proposed federally licensed or Consistent with the text of the statute, that there is no potential discharge and permitted project and no potential for a under the final rule section 401 is therefore no requirement to pursue a discharge, there is no longer a need to triggered by the potential for a discharge section 401 certification. See 84 FR request or obtain certification. The EPA to occur, rather than the presence of an 44080. One commenter supported notes that ultimately the project actual discharge. The final rule defines allowing the certifying authority or proponent is responsible for obtaining the term ‘‘discharge’’ consistent with the project proponent to determine, after the all necessary permits and proposal but replaces the term certification process is triggered, that a authorizations, including a section 401 ‘‘navigable waters’’ in the proposed section 401 certification is not required certification. If the federal licensing or definition with ‘‘waters of the United where there is no actual or potential permitting agency determines that there States’’ in the final definition. This discharge. Another commenter is a potential for a discharge, as part of change is not intended to change the expressed concern that this would allow its evaluation of the proposed project, it meaning of the definition; rather, it the project proponent to determine that may not issue the federal license or provides clarity and consistency across a section 401 certification is no longer permit unless a section 401 certification other CWA programs. required if the project proponent is granted or waived by the certifying Many commenters agreed that the determines, after the section 401 authority. If a project proponent requirement for a section 401 certification process is triggered, that requests a section 401 certification and certification is triggered by the potential there is no actual or potential discharge. later asserts that section 401 does not for a discharge from a federally licensed Another commenter stated that a project apply, the EPA recommends that the or permitted activity. One commenter that is clearly defined early in the project proponent discuss the matter stated that the EPA’s reliance on an federal licensing or permitting and with, and provide supporting actual discharge would disregard the certification processes would help information and documentation to, the broad scope of section 401, which is project proponents, certifying certifying authority and the federal designed to consider all potential authorities, and federal agencies agency. As provided in section 401(b) discharges over the life of a federally establish whether there is a potential and section 121.16 of the final rule, the licensed or permitted activity. One EPA is available to provide technical commenter stated that the proposed 40 A certification is required for ‘‘a Federal license assistance throughout the section 401 definition of ‘‘discharge’’ does not or permit to conduct any activity . . . which may process when requested to do so. contemplate a potential discharge. The result in any discharge into the navigable waters The EPA has concluded that unlike . . .’’ 33 U.S.C. 1341(a)(1) (emphasis added). commenter asserted that such an 41 See, e.g., National Pork Producers Council v. other CWA regulatory provisions, interpretation would conflict with the EPA, 635 F.3d 738, 751 (5th Cir. 2011) (holding that section 401 is triggered by the potential text of section 401 which states that ‘‘the EPA cannot impose a duty to apply for a for any unqualified discharge, rather water quality certification applies to any permit on a [concentrated animal feeding operation] than by a discharge of pollutants. This that ‘proposes to discharge’ or any CAFO before ‘‘federal license or permit to conduct there is an actual discharge.’’); Waterkeeper interpretation, reflected in both the any activity . . . which may result in a Alliance, Inc. v. EPA, 399 F.3d 486, 505 (2d Cir. proposal and this final rule, is discharge.’’ 2005) (same). consistent with the text of the statute

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and with U.S. Supreme Court precedent. triggered only by discharges of therefore does not trigger the need for a In S.D. Warren, the Court considered pollutants. water quality certification.45 whether discharges from a dam 42 were The EPA has considered these sufficient to trigger section 401, even if comments and concludes that, given the b. ‘‘From a Point Source’’ those discharges did not add pollutants diverse interpretations presented in The final rule provides that, to trigger to waters of the United States. Because public comments, including a definition section 401, a discharge must be from a of ‘‘discharge’’ in the section 401 section 401 uses the term discharge but point source. Several commenters certification regulations will increase the Act does not provide a specific agreed that a section 401 certification is 43 clarity. Consistent with the proposal, definition for the term, the Court required only where there is a point the Agency has concluded that a applied its ordinary dictionary meaning, source discharge. A few commenters discharge need not involve pollutants in ‘‘flowing or issuing out.’’ S.D. Warren agreed that Title IV of the CWA focuses order to trigger section 401. The EPA Co. v. Maine Bd. of Envtl. Prot. et al., on point source discharges, specifically 547 U.S. 370, 376 (2006). The Court disagrees with commenters who asserted that a point source discharge in sections 402 and 404, leading them concluded that Congress intended this to conclude that section 401 should term to be broader than the term necessarily requires a discharge of pollutants. The definition of point apply only to point sources as well. One ‘‘discharge of pollutants’’ that is used in commenter stated that the trigger for other provisions of the Act, like section source in section 502(14) of the CWA provides that a point source is a section 401 is specifically a potential 402. See, e.g., 33 U.S.C. 1342, 1344; S.D. point source discharge, citing to Oregon Warren, 547 U.S. at 380–81. For further conveyance from which pollutants are or may be discharged. A discharge of Natural Desert Ass’n v. Dombeck, 172 discussion of S.D. Warren, see section F.3d 1092 (9th Cir. 1998). Some II.F.4.a.ii of this notice, and for further pollutants is not required for a conveyance to be considered a point commenters stated that the Supreme discussion of discharges, see section Court in S.D. Warren held that the III.A.2.a of this notice. The Court held source. As discussed immediately above and in section III.A.2.a of this notice, certification requirement was not that discharges from the dam triggered limited to discharges of pollutants, but section 401 because ‘‘reading § 401 to the EPA’s longstanding position is that the term ‘‘discharge’’ as used in section that the discharge must nonetheless be give ‘discharge’ its common and a point source discharge, citing ordinary meaning preserves the state 401 is limited to point sources but includes releases regardless of whether Dombeck. Other commenters also authority apparently intended.’’ S.D. referred to S.D. Warren to assert that the Warren, 547 U.S. at 387. The EPA’s they contain pollutants. The Agency disagrees with commenters who stated Supreme Court refused to limit the term interpretation reflected in this final rule ‘‘discharge’’ to only include a point is consistent with the Court’s that using the term ‘‘discharge’’ within the definition of ‘‘discharge’’ creates source discharge. These commenters conclusion. stated that the Supreme Court held that Many public commenters addressed confusion or ambiguity. Indeed, the final rule definition is consistent with the term ‘‘discharge of pollutants’’ was the proposed definition of ‘‘discharge.’’ limited to point sources and the term Some commenters stated that the the CWA section 502(16) definition of ‘‘discharge,’’ which also contains the ‘‘discharge’’ was significantly broader. definition of ‘‘discharge’’ in the In doing so, many commenters took proposed rule should not contain the term ‘‘discharge.’’ The EPA also disagrees with commenters who issue with the EPA’s reliance on word ‘‘discharge.’’ Some commenters Dombeck. One commenter cited stated that the proposed rule’s asserted that the proposed definition was narrower than the Court’s opinion Russello v. United States, 464 U.S. 16 definition of discharge is unnecessary in S.D. Warren. As noted above, the (1983), to argue generically that ‘‘when because there is no ambiguity in that final rule’s definition is consistent with ‘Congress includes particular language statutory term. Many commenters cited the Court’s application of the ordinary in one section of a statute but omits it S.D. Warren to argue that the EPA’s meaning of the term. Finally, the EPA in another section of the same Act, it is definition of ‘‘discharge’’ was too disagrees with the commenter’s generally presumed that Congress acts narrow, and that the rule should define recommendation to define ‘‘discharge’’ intentionally and purposely in the discharge by its common meaning, as the specific outflow from a point disparate inclusion or exclusion.’ ’’ ‘‘issuing or flowing out.’’ Several source into navigable waters. The EPA commenters were concerned that if The final rule requirement that a has concluded that this language could discharge must be from a point source discharge was defined as being from a be construed quite narrowly to mean a point source then the discharge would to trigger section 401 is consistent with discharge from a specific ‘‘outfall’’ such case law from the Ninth Circuit, which need to contain pollutants, because of as a pipe or outlet, while excluding the CWA definition of ‘‘point source.’’ 44 concluded that the word ‘‘discharge’’ as discharges from dredge or fill projects. used consistently throughout the CWA One commenter recommended that One commenter requested that the ‘‘discharge’’ be defined as ‘‘the specific refers to the release from a point source, EPA clarify that section 401 certification and that use is also appropriate for outflow from a point source into is required only where there is a navigable waters.’’ Another commenter section 401. Dombeck, 172 F.3d at 1099. discharge of pollutants to a water of the The EPA has consistently implemented asserted that S.D. Warren was wrongly United States, and not simply a decided and that section 401 should be the interpretation of section 401 withdrawal of water. As discussed articulated by the Dombeck court and above, the EPA does not interpret 42 In S.D. Warren, the Court was not asked to adopts the Ninth Circuit’s interpretation section 401 as requiring a discharge of in this final rule. The interpretation that decide whether the discharges from the dams were pollutants. However, the EPA agrees point source discharges. a discharge must be a point source 43 with commenters that a section 401 The Act provides, ‘‘The term ‘discharge’ when discharge is consistent with the certification is not required for a water used without qualification includes a discharge of structure of the Act and with the other a pollutant, and a discharge of pollutants.’’ 33 withdrawal that has no associated U.S.C. 1362(16). potential for a point source discharge to 44 The CWA defines point source as ‘‘any 45 See, e.g., North Carolina v. FERC, 112 F.3d discernible, confined and discrete conveyance . . . a water of the United States. Multiple 1175, 1187 (D.C. Cir. 1997) (holding that from which pollutants are or may be discharged.’’ court decisions have concluded that a withdrawal of water from lake does not constitute 33 U.S.C. 1362(14) (emphasis added). water withdrawal is not a discharge and discharge for CWA section 401 purposes).

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CWA regulatory programs (see section c. ‘‘Into a Water of the United States’’ result in any discharge into navigable 46 III.A.2.a of this notice). Consistent with the proposal, the final waters.’’) (emphasis added); see also The EPA disagrees with commenters rule reflects that section 401 is triggered section III.A.2.a of this notice for who asserted that the Supreme Court in by a potential discharge into a water of discussion on discharges to waters of S.D. Warren specifically addressed the United States. 33 U.S.C. 1341(a)(1), the United States. The EPA disagrees whether a discharge must be from a 1362(7). Potential discharges into State with commenters who suggested that point source. The Court’s focus in S.D. or Tribal waters that are not waters of this rule is inconsistent with the Warren was on whether pollutants must the United States do not trigger the recently finalized rule defining ‘‘waters be added to constitute a ‘‘discharge.’’ requirement to obtain section 401 of the United States.’’ Both rules are S.D. Warren, 547 U.S. at 376–87. See certification. Id. at 1342(a)(1). intended to provide clarity on the scope also ONDA v. USFS, 550 F.3d 778, 783– Many commenters agreed that of federal authority and State or Tribal 84 (9th Cir. 2008) (noting that ‘‘[t]he certification is required where there is a authority to regulate certain waters. The issue in S.D. Warren was narrowly discharge into a water of the United final definition of ‘‘waters of the United tailored to determine whether a States. Some of these commenters States’’ reestablishes the appropriate discharge from a point source could agreed that section 401 would not apply balance between waters subject to occur absent addition of any pollutant to non-federal waters. A couple of federal regulation and those waters or to the water emitted from the dam commenters expressed concern that by features that are subject to exclusive turbines’’). The Court stated that the limiting the requirement for a section State or Tribal jurisdiction. As described term discharge is broader than further in section II.F of this notice, ‘‘discharge of a pollutant’’ and 401 certification to activities that discharge directly to waters of the section 401 provides a role for States ‘‘discharge of pollutants,’’ but noted that and authorized Tribes to participate in ‘‘discharge’’ is not defined in the statute. United States, there would be many federally permitted projects where federal license or permitting processes, S.D. Warren, 547 U.S. at 376. The Court including those in which they may also noted that for purposes of section section 401 certification would not be required even though discharges from otherwise be preempted by federal law. 401, ‘‘neither the EPA nor FERC has States and Tribes retain authority to formally settled the definition, or even those projects could impact State or Tribal waters. A few commenters argued regulate and protect waters of the State set out agency reasoning,’’ and the Court or Tribe in accordance with State and therefore continued to rely on the that the EPA’s deference to States has been inconsistent, noting that the Tribal law and where not preempted by dictionary definition of the term to federal law. As explained in detail in mean ‘‘flowing or issuing out’’ or ‘‘to Agency’s proposed rulemaking to define ‘‘waters of the United States’’ placed the proposed rule preamble, section 401 emit; to give outlet to; to pour forth is a federal regulatory provision, as . . .’’ Id. In 2008, after the S.D. Warren strong emphasis on States’ authority to protect their water resources, while the certification conditions are incorporated decision was issued, the Ninth Circuit into federal licenses and permits and are was asked to revisit its 1998 decision in proposed section 401 rulemaking reduces States’ authority to protect their enforceable by the federal government. Dombeck. In response, the Ninth Circuit If section 401 was expanded to cover held that ‘‘[n]either the ruling nor the water resources. These commenters said that they had difficulty reconciling the activities with discharges to non-federal reasoning in S.D. Warren is inconsistent waters, such an expansion would with this court’s treatment of nonpoint States’ expanded role under the ‘‘waters of the United States’’ rule with the authorize the federal government to sources in § 401 of the Act, as explained regulate waters and features that are in Dombeck. Accordingly, the principles diminished role of States in the proposed rule. beyond the scope of CWA regulatory of stare decisis apply, and this court authority; Congress did not intend these need not revisit the issue decided in The final rule’s interpretation that a discharge must be into a water of the waters to be subject to federal Dombeck.’’ ONDA v. USFS, 550 F.3d regulation. 778, 785 (9th Cir. 2008). The Agency United States to trigger the section 401 agrees. certification requirement is consistent d. Federal License or Permit In this final rule, the EPA is formally with the plain text of the statute, is establishing a definition for the term supported by the legislative history, and Section 401 certification requirements ‘‘discharge’’ for purposes of CWA is consistent with other CWA regulatory are triggered when a project proponent section 401 and setting out its reasoning program requirements that apply to applies for a federal license or permit to in support of the definition. The final discharges to waters of the United conduct an activity which may result in rule’s definition is consistent with the States, not discharges to State or Tribal any discharge into a water of the United Agency’s longstanding interpretation of waters. Id.; see also H.R. Rep. No. 92– States. 33 U.S.C. 1341(a)(1). However, in the statute and with relevant Ninth 911, at 124 (1972) (‘‘It should be clearly those cases where a federal agency Circuit case law, and nothing in S.D. noted that the certifications required by discharges dredged or fill material into Warren or PUD No. 1 precludes the EPA section 401 are for activities which may waters of the United States but does not from adopting the definition in the final issue itself a license or permit, the rule.47 from a point source into navigable waters or when Corps’ regulations require reasonable there is the functional equivalent of a direct and appropriate efforts to demonstrate discharge.’’ Op. at 15 (emphasis in original). The 46 See, e.g., Briefs of the United States in ONDA Court articulated a number of factors that may compliance with effluent limitations v. Dombeck, Nos. 97–3506, 97–35112, 97–35115 prove relevant for purposes of section 402 and state water quality standards, which (9th Cir. 1997), and ONDA v. USFS, No. 08–35205 permitting. Id. at 16. Consistent with the Court’s typically includes seeking (9th Cir. 2008). decision, if a discharge of a pollutant is determined certification.48 Consistent with the 47 On April 23, 2020, the United States Supreme to require a federal permit under section 402 as the Court issued a decision in County of Maui, Hawaii functional equivalent of a direct discharge, it will v. Hawaii Wildlife Fund, et al., No. 18–260, which also be subject to section 401 because, as discussed 48 See Appendix C of Engineer Regulation 1105– addressed the question whether the Clean Water above, the term ‘‘discharge’’ under section 401 2–100; 33 CFR 335.2 (‘‘[T]he Corps does not issue Act requires a NPDES permit under section 402 of includes a discharge of a pollutant subject to itself a CWA permit to authorize Corps discharges the Act when pollutants originate from a point section 402. S.D. Warren Co. v. Maine Bd. of Envtl. of dredged material or fill material into U.S. waters, source but are conveyed to navigable waters by Prot., 547 U.S. 370, 375 (2006) (citing 33 U.S.C. but does apply the 404(b)(1) guidelines and other groundwater. The Court held that ‘‘the statute 1362(16)). This conclusion is consistent with the substantive requirements of the CWA and other requires a permit when there is a direct discharge Court’s decision in Maui. environmental laws.’’).

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proposal, the final rule defines the term equipment used for discharging dredge project proponents. In response, the ‘‘license or permit’’ to mean ‘‘any or fill material are ‘‘point sources.’’ 49 EPA notes that the CWA ties the license or permit granted by an agency Another commenter asserted that requirement for a section 401 of the Federal Government to conduct States have required facilities to obtain certification to a federal license or any activity which may result in a a section 401 certification where the permit. As a result, in circumstances discharge.’’ facility has a permit from a State with where there is no federal license or delegated authority under section 402. The CWA does not list specific federal permit, including when federal agency Section 401 certification is not required licenses and permits that are subject to activities do not require a license or for State- or Tribally-issued permits section 401 certification requirements. permit, section 401 certification is not when the State or Tribe has assumed The EPA believes that the most common required. Nonetheless, the Corps’ operation of the permit program in lieu current regulations indicate that section examples of licenses or permits that of the federal government.50 The CWA 401 requires the Corps to seek section may be subject to section 401 statutory language is clear that the 401 certification for dredge and fill certification are CWA section 402 license or permit triggering the need for projects involving a discharge into NPDES permits issued by EPA in States a section 401 certification must be a waters of the United States, regardless of where the EPA administers the NPDES federal license or permit, that is, one whether the Corps issues itself a permit permitting program; CWA section 404 issued by a federal agency. for those activities.52 permits for the discharge of dredged or Implementation of a State or Tribal fill material and Rivers and Harbors Act permit program in lieu of the federal B. Pre-Filing Meeting Request sections 9 and 10 permits issued by the program does not ‘‘federalize’’ the 1. What is the Agency finalizing? Army Corps of Engineers; and resulting licenses or permits for hydropower and interstate natural gas The EPA proposed to establish a pre- purposes of section 401. Section 401 filing meeting process when the EPA is pipeline licenses issued by FERC. The certification does not apply to those final rule does not provide an exclusive the certifying authority to ensure that authorizations issued by the State or the Agency receives early notification of list of federal licenses and permits that Tribe.51 The CWA anticipates that anticipated projects and can discuss may be subject to section 401. Instead, States and Tribes issuing those permits information needs with the project the final rule focuses on whether there will ensure consistency with CWA proponent. Many commenters stated is potential for the activity authorized provisions and other appropriate that it would be helpful for project by the federally issued license or permit requirements of State and Tribal law as proponents to request pre-filing to result in a discharge from a point part of their permit application meetings with all certifying authorities source into a water of the United States. evaluation. (not just the EPA), although most A few commenters requested One commenter noted that the commenters did not say that certifying clarification on the requirement for a proposal indicated that the Corps does authorities should be required to accept federal license or permit to trigger the not process and issue permits for its such meetings. In light of these need for a section 401 certification. One own activities and stated that federal comments, and because the benefits of commenter asserted that the proposal agencies should be subject to the same the pre-filing process are applicable was unclear because the proposed certification request submittal regardless of the identity of the regulatory text did not tie the need for requirements as non-federal agency certifying authority, the EPA is a section 401 certification to an 49 finalizing a requirement that all project application for a federal license or See, e.g., Avoyelles Sportsmen’s League v. proponents, including federal agencies permit. The EPA disagrees with the Marsh, 715 F.2d 897 (5th Cir. 1983); U.S. v. Larkins, 657 F.Supp. 76 (W.D. Kent. 1987), aff’d, 852 F.2d when they seek certification for general suggestion that the proposal does not tie 189 (6th Cir. 1988). licenses or permits, submit a request for the need for a section 401 certification 50 State or Tribal implementation of a license or a meeting with the appropriate to the application for a federal license permit program in lieu of the federal program, such certifying authority at least 30 days or permit. Section 121.2 of the proposed as a CWA section 402 permit issued by an authorized state, does not federalize the resulting prior to submitting a certification rule stated that ‘‘any applicant for a licenses or permits and therefore does not trigger request.53 The final rule requires only license or permit to conduct any activity section 401 certification. This conclusion is that the project proponent request the which may result in a discharge shall supported by the legislative history of CWA section pre-filing meeting and leaves to the provide the Federal agency a 401, which noted that ‘‘since permits granted by States under section 402 are not Federal permits— discretion of the certifying authority certification from the certifying but State permits—the certification procedures are whether a pre-filing meeting may be authority . . .’’ As noted above, the not applicable.’’ H.R. Rep. No. 92–911, at 127 proposal and this final rule define the (1972). The legislative history of the CWA amendments of 1977, discussing state assumption 52 See 33 CFR 336.1(a)(1) (‘‘The CWA requires the term ‘‘license or permit’’ as one issued of section 404, also noted that ‘‘[t]he conferees wish Corps to seek state water quality certification for by a federal agency. to emphasize that such a State program is one discharges of dredged or fill material into waters of which is established under State law and which the U.S.’’). A few commenters suggested that functions in lieu of the Federal program. It is not 53 The EPA recognizes that some activities additional language be added to the a delegation of Federal authority.’’ H.R. Rep. No. conducted in response to a hurricane or other proposed definition of ‘‘discharge’’ to 95–830, at 104 (1977). similar event may require emergency procedures clearly describe what constitutes a point 51 As described elsewhere in this notice, the that do not allow for compliance with pre-request Corps’ existing certification regulations provide a meeting procedures. Federal licensing and source, including language concerning reasonable period of time of 60 days for federally permitting agencies should establish such equipment and construction activities issued CWA section 404 permits. 33 CFR emergency procedures by regulation to ensure that associated with the discharge of dredged 325.2(b)(1)(ii); see also final rule preamble section project proponents, certifying authorities, and the or fill material. The EPA believes that III.F. To the extent that certifying authorities believe public are made aware of the types of circumstances that this timeline is too short to provide that could prevent compliance with ordinary pre- defining ‘‘point source’’ in the final rule certification for a Federally issued section 404 filing meeting request requirements. Nothing in this is unnecessary in light of the statutory permit, States are authorized to assume final rule precludes federal agencies from definition (33 U.S.C. 1362(14)) and administration of that program for certain waters. establishing emergency procedures to ensure court decisions concluding that 40 CFR 233; see also Final Report of the Assumable continuation of operations or other appropriate Waters Subcommittee (May 2017), available at emergency procedures, including procedures that bulldozers, mechanized land clearing https://www.epa.gov/cwa404g/nacept-assumable- may not allow for compliance with pre-request machinery, and similar types of waters-subcommittee-final-report-may-10-2017. meeting procedures.

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necessary or appropriate for a particular agencies to engage in early coordination. that the EPA should not seek to project. The meeting request itself Under the final rule, if the certifying supplant a State’s expertise on when a provides advance notification to the authority grants the pre-filing meeting, pre-filing meeting is necessary. Several certifying authority that a certification the project proponent and the certifying commenters noted that some States have request may be forthcoming and authority are encouraged to discuss the established their own pre-filing meeting therefore promotes early coordination, nature of the proposed project and requirements and should be encouraged even when the certifying authority does potential water quality effects. The final to develop their own criteria, including not hold a pre-filing meeting. rule also encourages the project choosing whether to hold such pre- proponent to provide a list of other 2. Summary of Final Rule Rationale and filing meetings. Additionally, some required State, interstate, Tribal, Public Comment commenters felt that the proposed 30- territorial, and federal authorizations day notice for such meetings was too The EPA is expanding the proposed and to describe the anticipated timeline short, while another commenter pre-filing meeting request requirement, for construction and operation. After requested that the EPA provide and under this final rule, all project receiving the pre-filing meeting request, ‘‘safeguards’’ to ensure that States do proponents, including federal agencies the certifying authority is encouraged to not use the pre-filing meeting as an when they seek certification for general contact the federal agency and to opportunity to request unreasonable licenses or permits, must submit a identify points of contact, so as to information or studies that would delay request for a pre-filing meeting with the facilitate information sharing between a certification request. Some appropriate certifying authority at least the certifying authority and Federal commenters noted that while likely to 30 days prior to submitting a agency throughout the certification yield useful information, the proposed certification request. This requirement process. In the final rule, the EPA regulations lack a means of enforcing will ensure that certifying authorities encourages these important steps to the pre-filing procedures and asserted receive early notification and have an help promote an efficient certification that the process could reward applicants opportunity to discuss the project and process. These recommendations are who fail to cooperate with pre-filing potential information needs with the consistent with many recommendations procedures. Some commenters noted project proponent before the statutory in EPA’s 2019 Guidance (which EPA is that the proposal did not include timeframe for review begins. The final rescinding in this action, as no longer expected outcomes from such early rule also encourages the certifying necessary in light of this final rule) as collaboration and asserted that this authority to take actions to initiate well as with recommendations made in could result in inadequate certification coordination with the Federal agency the proposed rule preamble. requests. Some commenters stated that after receiving the pre-filing meeting The Agency believes that the term the EPA’s proposal did not include request. ‘‘request’’ as used in the statute is broad sufficient guidance on best practices for In order to facilitate early engagement enough to include an implied and coordination, and using its pre-filing meetings, such as what requirement that, as part of the information the project proponent discretion to interpret the term submission of a request for certification, ‘‘request’’ as applied to certification should be prepared to share with the a project proponent also provide the certifying authority. procedures, the EPA is finalizing a certifying authority with advance notice regulatory requirement in section 121.4 that a certification request is imminent. The EPA agrees with commenters of the final rule that all project The relatively short time (no longer than who stated that pre-filing meetings proponents must submit a request for a one year and possibly much less) that would generally improve early pre-filing meeting at least 30 days in certifying authorities are provided coordination and promote efficiency in advance of submitting a certification under the CWA to act on a certification section 401 certification decision- request. Under the final rule, certifying request (or else waive the certification making, although the utility of such authorities are given an opportunity to requirements of section 401(a)) provides meetings could depend on the accept or host such a pre-filing meeting, additional justification in this context to complexity of the project and resources but they retain discretion to decline the interpret the term ‘‘request for of the certifying authority. The EPA also request or simply not respond. Under certification’’ to allow the EPA to agrees with commenters who stated that the final rule, if the certifying authority require a pre-filing meeting request. pre-filing meetings under the final rule does not respond to the request, the Many commenters supported the should have an accountability project proponent may submit a EPA’s proposal to require project mechanism, and thus the final rule certification request as long as it proponents to request pre-filing requires the project proponent to includes documentation, as required in meetings. Several commenters include documentation of its pre-filing section 121.5 of the final rule, that it supported the proposed pre-filing meeting request in any certification requested the pre-filing meeting at least process where the EPA is the certifying request filed with the certifying 30 days prior to submitting the authority, while others supported authority (see section III.C of this certification request. extending it to all certifying authorities. notice). The EPA recommends that In addition to requiring the project Several commenters stated that such project proponents submit a pre-filing proponent to request a pre-filing meetings, while useful for a variety of meeting request in writing and maintain meeting, the proposed rule would have purposes (e.g., identifying what a copy of the written request, as the required EPA to respond within a information may be needed from a final rule requires such documentation certain period of time and also required project proponent), should not be to be submitted in a certification the parties to discuss certain topics and mandatory. Other commenters stated request. If a project proponent does not to be prepared to share certain that such meetings should be used only submit a pre-filing meeting request or information during the pre-filing for complex, non-routine projects. Some does not maintain documentation that it meeting. The final rule no longer commenters asserted that the pre-filing made the request, the subsequent requires those additional procedures process could penalize States who certification request will not meet the and instead encourages certifying choose not to attend pre-filing meetings, requirements of the final rule, and in authorities, project proponents and even though it may not be feasible or such circumstances the reasonable federal licensing and permitting necessary in all instances, and argued period of time would not start.

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The final rule does not set a limit on The pre-filing meeting may be time from the federal agency). This how early a project proponent may conducted in-person, or remotely requirement also does not affect the submit a pre-filing meeting request or (through telephone, online, or other ability of project proponents to initiate discussions with a certifying virtual platforms), as deemed withdraw a certification request authority in order to encourage early appropriate by the certifying authority. voluntarily (see section III.F of this and ongoing coordination between the Certifying authorities are encouraged notice). The Agency disagrees with project proponent and the certifying to develop pre-filing meeting commenters who asserted that the pre- authority. The Agency disagrees with procedures tailored to identify filing meeting request requirement the suggestion that a pre-filing meeting information that may be needed to would penalize certifying authorities requirement could delay a certification review and act on a certification request. who choose not to avail themselves of request. Even if the certifying authority Such procedures could vary depending the pre-filing meeting; accepting a pre- does not agree to meet, the project on the project type, project complexity, filing meeting is not a mandatory proponent is free to submit a or the triggering federal license or requirement. The Agency anticipates certification request 30 days after permit, to enable greater efficiency and that certifying authorities will act in submitting the meeting request. See predictability in the certification good faith when evaluating pre-filing section III.C of this notice. In some process. The Agency emphasizes that meeting requests and identifying cases, a project proponent may find it any pre-filing meeting procedures or information they may need to review beneficial to engage with a certifying pre-filing expectations developed or and act on a certification request. The authority well in advance of the 30-day promulgated by certifying authorities Agency notes that early engagement and pre-filing meeting period, particularly cannot modify the requirements for a coordination, including participation in for complex projects. The 30-day period certification request established in this a pre-filing meeting, may help increase after submittal of the pre-filing meeting final rule. The EPA also notes that any the quality of information that is request and prior to the submission of new State or Tribal pre-filing meeting provided by project proponents and a certification request provides an procedures may not be used to extend may reduce the need for the certifying opportunity for the project proponent to the 30-day timeline following a pre- authority to make additional verify whether a section 401 filing meeting request for project information requests during the certification is required and for the proponents to submit a certification reasonable period of time. certifying authority to identify potential request, nor may pre-filing meeting In addition to pre-filing meetings information, in addition to the procedures be used to extend or modify between certifying authorities and certification request requirements in the reasonable period of time project proponents, commenters also this rule, that may be necessary for the established by a Federal agency. The suggested a variety of ways in which certifying authority to act on the EPA believes that requiring a pre-filing federal agencies could facilitate certification request. Ultimately, the meeting request too early could be an information-sharing prior to the Agency believes that this provision of abuse of the process and result in an certifying authority’s receiving a the final rule will allow for a more unreasonable extension of the certification request. For example, one efficient and predictable certification reasonable period of time that Congress commenter expressed support for process for all parties. envisioned, which is not to exceed one advance coordination between States year. Rather, such procedures should be and federal agencies to streamline Under the final rule, certifying focused on allowing both the project federal licensing and permitting actions. authorities are not required to grant pre- proponent and the certifying authority A couple of commenters suggested that filing meeting requests. The EPA has an opportunity to develop a common federal agencies should notify States determined that certifying authorities understanding and expectation of the and Tribes of projects that require a are in the best position to determine types of information that may be section 401 certification as soon as when a pre-filing meeting is necessary necessary for a certifying authority to possible. One of these commenters to help ensure that they receive all act on a certification request consistent stated that the coordination between necessary information to act on with section 401 and this final rule. State and federal environmental review certification requests within the Some commenters asserted that pre- requirements and processes should be reasonable period of time. The Agency filing meetings should not limit a State’s done without diminishing section 401 encourages project proponents and ability to request additional information certification authority. Another certifying authorities to use the pre- after a certification request has been commenter objected to federal agency filing meeting to discuss the proposed made. Other commenters did not think use of pre-filing meetings to inform the project and to determine what that pre-filing meetings should preclude duration of the reasonable period of information is needed to enable the project proponents from withdrawing time for review for certification actions, certifying authority to act on the and resubmitting certification requests unless there were clear inputs and certification request in the reasonable to extend the reasonable period of time, outcomes for such meetings. period of time. Additionally, certifying which they stated is sometimes The EPA recognizes that federal authorities and project proponents may necessary for complex projects. Under agencies are uniquely positioned to use the pre-filing meeting to discuss the final rule, the pre-filing meeting promote pre-filing coordination with other appropriate water quality request requirement does not affect a certifying authorities and with project requirements that may be applicable to certifying authority’s ability to request proponents, so as to harmonize project the certification request and any additional information from a project planning activities and to promote necessary procedural requirements (e.g., proponent once the reasonable period of timely action on certification requests. ascertain whether the State or Tribe time has started (see section III.F.2.a of The Agency acknowledges that other requires any fees). The EPA expects that this notice), but such information federal agencies may provide for pre- certifying authorities may take requests cannot operate to extend the filing discussions in their regulations, advantage of a pre-filing meeting request reasonable period of time (see section see, e.g., 18 CFR 5.1(d)(1) and 33 CFR for larger or more complex projects and III.F for further discussion on how 325.1(b), and recognizes that many might choose to decline the request for certifying authorities may request an certifying authorities and federal more routine and less complex projects. extension to the reasonable period of agencies already have coordination

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memos, memoranda of agreement, or provisions of the final rule tailored to take action on this CWA 401 other cooperative mechanisms in place. the issuance of general licenses and certification request within the The Agency is not finalizing specific permits, are described in detail in applicable reasonable period of time.’ requirements for federal agency section III.M of this notice. The statutory reasonable period of coordination with certifying authorities To better account for water quality time for a certifying authority to act on (except when federal agencies are certifications required for general a certification request begins when the themselves seeking certification, see licenses or permits, the definition of certifying authority is in ‘‘receipt of section III.M of this notice). However, if ‘‘project proponent’’ has been modified such request.’’ The EPA is finalizing the there is a pre-application process as follows pursuant to section 121.1(j) of definition of the term ‘‘receipt’’ as required or facilitated by the federal the final rule: proposed: licensing or permitting agency and if the Project proponent means the Receipt means the date that a timing of that process would allow the applicant for a license or permit or the certification request is documented as project proponent to request a pre-filing entity seeking certification. received by a certifying authority in meeting from the certifying authority at This final rule’s definition of ‘‘project accordance with applicable submission least 30 days before submitting a proponent’’ extends all of the procedures. certification request, then a joint substantive and procedural Together, these provisions will meeting among federal agencies, requirements in this final rule to federal provide greater certainty for project certifying authorities, and project agencies seeking certification for a proponents, certifying authorities, and proponents could also be used as the general license or permit. federal agencies concerning when the pre-filing meeting for a certification Pursuant to section 121.1(c) of the reasonable period of time has started. request. final rule, Each of these provisions is discussed in In general, the EPA encourages federal Certification request means a written, greater detail below. agencies to notify certifying authorities signed, and dated communication that 2. Summary of Final Rule Rationale and as early as possible about proposed satisfies the requirements of section Public Comment projects that may require a section 401 121.5 (b) or (c). The Act places the burden on the certification. Additionally, the EPA Section 121.5(b) of the final rule project proponent to obtain a section encourages federal agencies (1) to timely includes an enumerated list of 401 certification from a certifying respond to requests from certifying documents and information that must authority in order to receive a federal authorities for information concerning be included in a certification request for license or permit. As discussed in the the proposed federal license or permit, an individual license or permit, preamble to the proposed rule, the and (2) to the extent consistent with including the seven components from section 401 certification process begins agency regulations and procedures, the proposed rule and two new on the date when the certification provide technical and procedural components. A certification request request is received by a certifying assistance to certifying authorities and must include all components to start the authority. The statute limits the time for project proponents upon request. The statutory clock. A certification request a certifying authority to act on a request EPA also encourages project proponents submitted for an individual license or as follows: and certifying authorities to engage in permit shall: any additional pre-filing discussion 1. Identify the project proponent(s) If the State, interstate agency, or opportunities that may facilitate greater and a point of contact; Administrator, as the case may be, fails or communication and information 2. identify the proposed project; refuses to act on a request for certification, 3. identify the applicable federal within a reasonable period of time (which sharing, and therefore a more efficient shall not exceed one year) after receipt of and informed certification decision. license or permit; 4. identify the location and nature of such request, the certification requirements C. Certification Request/Receipt any potential discharge that may result of this subsection shall be waived with respect to such Federal application. 1. What is the Agency finalizing? from the proposed project and the location of receiving waters; 33 U.S.C. 1341(a)(1) (emphasis Under this final rule, a project 5. include a description of any added). The plain language of the Act proponent must submit a certification methods and means proposed to requires that the reasonable period of request to a certifying authority to monitor the discharge and the time to act on certification not extend initiate an action under section 401. equipment or measures planned to treat, beyond one year after the receipt of the Consistent with the text of the CWA, the control, or manage the discharge; certification request. The statute, final rule provides that the statutory 6. include a list of all other federal, however, does not define those terms. timeline for certification review starts interstate, tribal, state, territorial, or As discussed in the preamble to the when the certifying authority receives a local agency authorizations required for proposed rule, because they are not ‘‘certification request,’’ rather than the proposed project, including all defined and their precise meaning is when the certifying authority receives a approvals or denials already received; ambiguous, these terms are susceptible ‘‘complete application’’ or ‘‘complete 7. include documentation that a pre- to different interpretations. This request’’ as determined by the certifying filing meeting request was submitted to ambiguity has resulted in inefficiencies authority. After considering public the certifying authority at least 30 days in the certification process; individual comments, the final rule has been prior to submitting the certification certification decisions that have revised to provide a general definition request; extended beyond the statutory of ‘‘certification request’’ and provide 8. contain the following statement: reasonable period of time; regulatory two different lists of documents and ‘The project proponent hereby certifies uncertainty; and litigation. See section information that must be included in a that all information contained herein is II.F of this notice. As the Agency certification request: One list for true, accurate, and complete, to the best charged with administering the CWA, individual licenses and permits and a of my knowledge and belief’; and the EPA is authorized to interpret separate list for the issuance of a general 9. contain the following statement: through rulemaking undefined terms, license or permit. The certification ‘The project proponent hereby requests including those associated with CWA request requirements, as well as other that the certifying authority review and section 401 certifications. See Chevron,

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U.S.A., Inc. v. Natural Resources submitted by project proponents, as the and the project proponent’s obligation, Defense Council, Inc., 467 U.S. 837, 844 term is defined in the final rule, and it if any, to pay a fee related to the section (1984). Given the large number of requires the seven components listed in 401 certification. Given the States’ certification requests submitted each the proposed definition, with a slight differing practices in this area, the final year 54 and the statutory requirement modification in one component, as well rule does not include proof of fee that those requests be acted on within as two additional components: A payment as a required component of a a reasonable period of time not to statement that all information contained certification request to trigger the exceed one year, the EPA is finalizing in the request is true, accurate, and statutory timeframe for State or Tribal definitions for the terms ‘‘certification complete to the best of the project action. request’’ and ‘‘receipt’’ to provide proponent’s knowledge, and Consistent with the proposal, the final project proponents, certifying documentation that a pre-filing meeting rule requires a project proponent to authorities, and federal agencies with request was submitted to the certifying identify the location of any potential clear regulatory text stating when the authority at least 30 days prior to discharge in the certification request. To statutory reasonable period of time submitting the certification request. meet this requirement, the EPA begins. These additional components are recommends that the project proponent The EPA is finalizing a definition for discussed further below. The Agency provide locational information about the ‘‘certification request’’ that requires a has modified the fourth factor in the extent of the project footprint and all written, signed, and dated final rule to require project proponents potential discharge locations, as shown communication that satisfies the to identify the location and the nature on design drawings and plans. The EPA requirements of section 121.5(b) or (c) of of any potential discharge that may recommends that project proponents be the final rule. A certification request result from the proposed project and the prepared to provide underlying that meets the requirements of the final location of receiving waters. This geographic data such as shapefiles or rule begins the certifying authority’s modification clarifies that project geodatabases. Alternatively, the project reasonable period of time. The structure proponents should identify the nature of proponent should consider identifying of the final rule is somewhat different the discharge, including (as appropriate) potential discharge locations on hard than the proposal because, as described the potential volume, extent, or type of copy maps. The Agency acknowledges above, the final rule contains two discharge associated with the proposed that the appropriate format and method separate lists for certification requests; project. This modification is similar to to identify potential discharge locations however, the purpose and function of the modification made in the factors to may change with evolving technology the ‘‘certification request’’ remains be considered by a federal agency when and recommends that project consistent with the proposal. setting the reasonable period of time. proponents and certifying authorities Commenters provided numerous See section III.F for further discussion. discuss the best approach to providing recommendations for what should be The inclusion of this information will the information required for the included in a certification request, provide the certifying authority with certification request. including but not limited to information The EPA received comments from the clear notice that the project proponent on prior contamination at the project public and feedback from other federal has submitted a certification request and site, payment of applicable fees, specific agencies that the categories of a sufficient baseline of information to project proponent contacts, specific information identified in the proposed allow it to begin its evaluation in a geographic information, construction definition of certification request may timely manner. and mitigation plans, engineering plans, not be appropriate for a federal agency sediment sampling plans, aquatic The Agency requested comment on seeking section 401 certification for a resources and their condition, the whether it should include a reference to general license or permit. For example, characteristics of the discharge, ‘‘any applicable fees’’ among the at the time of certification, a federal description of all affected wetlands and components of its definition of a agency may not know the location of waters, State-listed species information certification request. Many commenters every potential discharge that may in and habitat assessments, baseline data stated that a certifying authority’s the future be covered under a general and information, and the complete applicable fees should be a required license or permit. In response to these federal license or permit application, as element in the final rule. One comments and to improve the utility well as a statement from the project commenter suggested that applicable and clarity of the final rule, the Agency proponent that all information is true fees for a section 401 certification might is also finalizing in section 121.5(c) of and correct. Conversely, a few be affected by the type of federal license the final rule a separate list of commenters recommended removing or permit for which they are applying. documents and information required for the specific components of a After considering all of the public a ‘‘certification request for issuance of a ‘‘certification request’’ and argued that comments on this issue and conducting general license or permit.’’ See section the proposed information was not additional research into whether and III.M of this notice for further discussion necessary for a certifying authority to how certifying authorities may require of the certification process for general act on a request for certification. The fees for section 401 certifications, the licenses or permits. EPA considered all of these comments EPA has decided not to include a The Agency received public and made some modifications in the reference to fees in the enumerated list comments emphasizing the efficiencies final rule. The final definition of of elements of a certification request. that can be gained by federal agencies ‘‘certification request’’ requires that the States vary in how and when they issuing general licenses and permits, project proponent’s written submission require fees in the certification process. such as general NPDES permits issued contain the components identified in They have different fee structures and by the EPA and Nationwide or Regional either section 121.5(b) or (c) of the final different requirements for the timing of section 404 general permits issued by rule. paying a certification-related fee. The the Corps. A few commenters stated that Section 121.5(b) of the final rule Agency encourages the project federal agencies should follow addresses certification requests proponent and the certifying authority procedures that are consistent with to discuss during the pre-filing meeting other project proponents when 54 See section 2 of the Economic Analysis. the certifying authority’s fee structure submitting certification requests and

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complying with other aspects of the create additional accountability on the prescribe the amount of information that rule. The EPA agrees with commenters part of the project proponent to ensure must be included in a certification that consistent procedural and that information submitted in a request. See Chevron, 467 U.S. at 844. substantive requirements for all water certification request accurately reflects In this final rule, the Agency is quality certifications would promote the proposed project, and to ensure that interpreting ‘‘certification request’’ to regulatory certainty for project the project proponent has complied include components that the Agency proponents, federal agencies, and with the requirement to request a pre- believes are necessary to provide a certifying authorities and has modified filing meeting with the certification certifying authority with clear notice the final rule definition of ‘‘project authority. If a certification request does that a request has been submitted and a proponent’’ to promote consistent water not include these components, it does sufficient baseline of information for the quality certifications. Section 121.1(j) of not meet the conditions of section certifying authority to begin its review. the final rule defines ‘‘project 121.5(b) or (c) of the final rule and it It is important to distinguish between proponent’’ to mean ‘‘the applicant for does not start the statutory clock. the amount of information appropriate a license or permit or the entity seeking Notwithstanding the text of section to start the certifying authority’s certification.’’ With this modified 401(a)(1), which refers to a ‘‘request for reasonable period of time and the definition, the final rule clarifies that certification,’’ some commenters amount of information that may be federal agencies that issue general asserted that requiring a ‘‘certification necessary for the certifying authority to licenses or permits must comply with request,’’ as opposed to a ‘‘complete take final action on a certification all of the procedural and substantive application,’’ contravened congressional request. The components of a requirements of this final rule. intent and cooperative federalism, and ‘‘certification request’’ identified in the Consistent with the proposal, sections represented a change in the EPA’s final rule are intended to be sufficient 121.5(b) and (c) of the final rule include longstanding practice. As discussed in information to start the reasonable the following statement—‘‘The project the preamble to the proposed rule, period of time but may not necessarily proponent hereby requests that the section 401 does not use the term represent the totality of information a certifying authority review and take ‘‘complete application’’ or prescribe certifying authority may need to act on action on this CWA 401 certification what a ‘‘certification request’’ would a certification request. Nothing in the request within the applicable reasonable require. The reference in prior EPA final rule’s definition of ‘‘certification period of time.’’ This requirement is guidance to a ‘‘complete application,’’ request’’ precludes a project proponent intended to remove any potential without explaining what an from submitting additional, relevant ambiguity on the part of the certifying ‘‘application’’ must include, has led to information or precludes a certifying authority about whether the written inconsistent and subjective authority from requesting and request before it is, in fact, a determinations about the sufficiency of evaluating additional information ‘‘certification request’’ that triggers the certification request submittals. This, in within the reasonable period of time statutory timeline. One commenter turn, has caused uncertainty about (see section III.H of this notice for noted that, if a project proponent is when the statutory reasonable period of specific procedures when the EPA is the uncertain whether the certifying time begins to run. The Agency is certifying authority). Indeed, in many authority will be able to certify its authorized to interpret ambiguous cases it may be in the interest of the project within the reasonable period of statutory terms, see Chevron, 467 U.S. at project proponent and may provide a time, the project proponent could 844, and is finalizing what it deems the more efficient certification process if submit a non-compliant certification most appropriate, reasonable relevant information about the discharge request that omits one or more interpretation of ‘‘certification request’’ and potential impacts to the receiving components, which would prevent the to reduce uncertainty and enable project waters is provided to the certification reasonable period of time clock from proponents and certifying authorities to authority early in the certification starting. The Agency agrees with this objectively and transparently process. commenter that if a project proponent understand which submittals start the does not submit a certification request reasonable period of time. As discussed in section III.B of this as defined at section 121.5(b) of the final Some commenters also asserted that a notice, the Agency is finalizing a pre- rule, then the reasonable period of time standardized definition of ‘‘certification filing meeting request requirement for does not begin. The Agency encourages request’’ cannot capture all of the kinds all project proponents, including federal pre-filing meetings, engagement, and of information necessary for the agencies when they seek a section 401 information sharing between project certifying authority to make an informed certification for general licenses or proponents and certifying authorities, decision on a certification request. They permits. The Agency is including a but such engagement does not start the expressed concern that project documentation requirement for the pre- reasonable period of time unless a proponents would be incentivized to filing meeting as a component of a certification request, as defined in the circumvent a certifying authority’s certification request to ensure that final rule, is submitted to the certifying meaningful review by not providing certifying authorities are given an authority. additional information. Additionally, opportunity to engage in early Sections 121.5(b) and (c) of the final some commenters suggested that discussions with project proponents and rule include two additional provisions certifying authorities should be given federal agencies, if desired. The Agency that were not in the proposed rule: A the flexibility to develop their own encourages project proponents and statement that all information contained definition of a ‘‘request’’ or certifying authorities to use the pre- in the certification request is true, ‘‘application’’ to meet their applicable filing meeting to discuss the proposed accurate, and complete to the best of the State and Tribal laws and needs. While project and to determine what requester’s knowledge and belief, and the Agency acknowledges these information (if any), in addition to that documentation that a pre-filing meeting commenter concerns, the EPA disagrees. required to be submitted as part of the request was submitted to the certifying As discussed above, the Agency is ‘‘certification request,’’ may be needed authority at least 30 days prior to authorized to interpret the term to enable the certifying authority to take submitting the certification request. ‘‘certification request’’ because the Act final action on the certification request Both requirements are intended to does not define the term, nor does it in the reasonable period of time. The

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certifying authority may also take this A number of commenters provided request would require subjective opportunity to discuss any other State examples of projects that had been determination regarding the appropriate or Tribal permits that may be applicable delayed because a certifying authority level of detail. However, the Agency or required for the proposed project. repeatedly requested additional believes that the final certification Although some commenters requested information before a certification request components do not require a that the Agency include more detailed request would be considered subjective inquiry into their sufficiency certification request components, the ‘‘complete.’’ These commenters asserted or any inquiry beyond whether they Agency believes additional detailed that these types of repeated requests for have been provided in the request. information is best ascertained through additional information undermine the The final rule requires a certification pre-filing meetings and engagement statutory requirement to act on a request to include a statement that, to during the reasonable period of time. If certification request within a reasonable the best of the project proponent’s pre-filing meetings, discussions, and period of time, not to exceed one year. knowledge and belief, all information submittals during the reasonable period Other commenters asserted that a contained in the request is true, of time fail to produce the information certifying authority cannot reasonably accurate, and complete. This necessary for a certifying authority to act on a certification request based only requirement is intended to ensure that grant certification or grant certification on the information required by the project proponents are making a good- with conditions, the final rule reaffirms proposed rule. The EPA acknowledges faith effort to provide the certifying that certifying authorities retain the the desire for certifying authorities to authority with accurate information ability to deny or waive a certification have all necessary information as soon necessary to begin its evaluation of the request. It is important to reiterate that as possible in the certification process, certification request. Additionally, as the burden is on the project proponent but the Agency must balance that desire discussed above, the EPA anticipates to submit a certification request to the while remaining loyal to the statutory that the project proponent and the certifying authority and work requirement for timely action on a certifying authority will coordinate cooperatively to provide additional request. The Agency believes that its information needs before and information as appropriate to facilitate final rule strikes the appropriate balance throughout the reasonable period of the certification process. Likewise, the by identifying the kinds of information time, if necessary. The EPA expects that burden is on the certifying authority to that provide a reasonable baseline about the project proponent both will provide evaluate the certification request in any project while recognizing the ability a certification request that includes the good faith and to request information, of certifying authorities and project components identified in the final rule documents, and materials that are proponents to request and provide and will engage with the certifying within the scope of section 401 as additional information both before and authority, as requested, to understand provided in this final rule and that can after the review clock starts. and respond to appropriate and be produced and evaluated within the reasonable additional information reasonable period of time. The Agency also sees the value in requests that are within the scope of The Agency also disagrees with finalizing certification request section 401 and can be generated and commenters who asserted that the components that are objective and do reviewed within the reasonable period proposed definition of ‘‘certification not require subjective determinations by of time. For its part, the EPA expects request’’ would narrow State authority, a certifying authority about whether the that the certifying authority will act that it contradicted the goals and request submittal requirements have within the scope of section 401, as purpose of the CWA, and that it was been satisfied. A certification request provided in the CWA and in this final contrary to the plain language of section must have all components listed at rule. 401. The term ‘‘request’’ is not defined section 121.5(b) or (c) of the final rule The EPA solicited comment on in the Act. As discussed above, the to start the statutory reasonable period whether the Agency should generate a Agency is authorized to interpret of time. If any of the components of standard form for all certification ambiguous statutory terms, and believes section 121.5(b) or (c) of the final rule requests. Most commenters did not the final definition of ‘‘certification is missing from the certification request, support the development of a standard request’’ and the provisions in sections the statutory reasonable period of time form and noted that most States have 121.5(b) and (c) of the final rule will does not start. With respect to the their own forms for ‘‘complete provide needed clarity and help ensure component of a certification request for applications.’’ At this time, the Agency that certifying authorities have project proponents at section 121.5(b)(5) is not developing a standard form for sufficient notice and information to of the final rule, the EPA acknowledges project proponents to use to submit begin their evaluation of a certification that not all proposed projects may be certification requests, but notes that request. The final rule does not limit the subject to monitoring or treatment for a States and Tribes that wish to continue ability of a certifying authority to discharge (e.g., section 404 dredge or fill using standard forms may choose to communicate with project proponents permits rarely allow for a treatment update those forms to be consistent with and to identify and request additional option). The final rule has been the final definition of ‘‘certification information necessary to take an modified slightly to add the word request.’’ The Agency may consider informed action on a certification ‘‘manage’’ to broaden the scope of developing such forms in the future, if request in the reasonable period of time. information that may be provided by useful to project proponents and Indeed, by providing greater clarity on project proponents. However, if a certifying authorities. when the statutory reasonable period of project is not subject to monitoring, Some commenters asked for time begins and by encouraging early treatment, or management requirements clarification on the practical effect on and constructive dialogue between for its discharge, the project proponent the review clock of a project project proponents and certifying should state that in the certification proponent’s independently withdrawing authorities, the final rule facilitates a request. The effect of such statement a certification request by its own choice certifying authority’s efforts to protect would be to make that component and not at the request of a certifying waters of the United States within its inapplicable to that project. Many authority. If a project proponent borders within the timeframe mandated commenters expressed concern that the withdraws a certification request by Congress. proposed components of a certification because the project is no longer being

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planned or if certain elements of the materially after a project proponent that certifying authorities may have proposed project materially change from submits a certification request, it may be different procedures for submission of what was originally proposed or from reasonable for the project proponent to requests established in State or Tribal what is described or analyzed in submit a new certification request. law. For instance, some certifying additional information submitted by the Administrative changes, such as a authorities may require hard copy paper project proponent, it is the EPA’s change in the point of contact or the list submittals, while others may require or interpretation that the certifying of other required permits, and minor allow electronic submittals. If the authority no longer has an obligation to changes to the proposed project, such as certifying authority accepts hard copy act on that request. To avoid scenarios those that do not change the project paper submittals, the EPA recommends like those presented in Hoopa Valley footprint in a material way, should not that the project proponents submitting a and to address the EPA’s policy concern warrant the submission of a new hard copy request send the request via that section 401 certification delays also certification request. The EPA certified mail (or similar means) to delay implementation of updated State recognizes that complex projects that confirm receipt of the certification and Tribal water quality standards and are subject to multi-year federal request. If the certifying authority other requirements, the EPA expects licensing or permitting procedures may allows for electronic submittals, the that voluntary withdrawal by the project change over time as a result of those EPA recommends that the project proponent will be done sparingly and federal procedures. From a practical proponent set up an electronic process only in response to material standpoint, the EPA encourages project to confirm receipt of the request. modifications to the project or if the proponents to maintain close Nothing in the final rule precludes the project is no longer planned. In these coordination and communication with use of electronic signatures when circumstances, if the project proponent certifying authorities and recommends deemed appropriate by the certifying seeks to obtain a certification in the that the project proponent provide authority. The EPA recommends that future, the project proponent must information about any project changes project proponents retain a copy of any submit a new certification request. At a to the certifying authority regardless of written or electronic confirmation of minimum, the project proponent would when the change occurred or whether a submission or receipt for their records. have to wait 30 days before re- certification has already been issued by One commenter disagreed with the submitting a certification request, the certifying authority. As an suggestion that the word ‘‘receipt’’ is because under the final rule project additional measure, the Act and the ambiguous but nonetheless agreed with proponents must request a pre-filing final rule provide certifying authorities the proposed rule because, this meeting at least 30 days before with the opportunity to inspect a commenter asserted, states have made submitting a certification request, and certified project prior to initial efforts to evade the one-year reasonable voluntary withdrawal by a project operation to ensure the project will period of time. For the reasons proponent of a prior certification comply with the certification. explained above, EPA disagrees with the request does not obviate this pre-filing commenter and concludes that the word The Agency is finalizing the requirement. For further discussion is ambiguous. Another commenter definition of ‘‘receipt’’ as proposed, so about project proponent withdrawal, see stated that section 401 does not require section III.F of this notice. as to provide clarity for project certifying authorities to act ‘‘upon’’ Commenters asked the Agency to proponents and certifying authorities receipt of a request, but ‘‘after’’ receipt clarify when a change in the proposed about when the certification request is of a request. This commenter is correct project would be so significant that it deemed received and the statutory clock that the statute requires certifying would require a new request. Many begins. The CWA does not define the authorities to act on a certification commenters asserted that the proposed term ‘‘receipt of such request’’ in section request ‘‘within a reasonable period of rule would prevent extending the 401(a)(1), which has led States, Tribes, time (which shall not exceed one year) reasonable period of time even though and project proponents, as well as after receipt of such request.’’ As the scope of the project changes during courts, to use different definitions. discussed above, the Agency has the the reasonable period of time. Other ‘‘Receipt of the request’’ has been used authority to interpret ambiguous commenters noted that the proposed alternately to mean receipt by the statutory terms, including the terms rule did not account for project changes certifying authority of the request in ‘‘request’’ and ‘‘receipt of such request.’’ that may result from the federal license whatever form it was submitted by the The Agency has defined ‘‘receipt’’ to or permit review processes. A couple of project proponent, or receipt of a mean ‘‘the date that a certification commenters stated that the EPA should ‘‘complete application’’ as determined request is documented as received by a provide guidance to federal agencies on by differing regulations established by certifying authority in accordance with when a new certification request would certifying authorities. The statute also applicable submission procedures.’’ be necessary based on the type and does not specify how requests are to be Therefore, under the EPA’s final rule, change in a project’s scope, while one ‘‘received’’ by the certifying authority— the statutory clock begins on the date commenter asked the Agency to clarify whether by mail, by electronic when the certification request is whether projects that change in scope or submission, or some other means. The documented as received by the design require a new certification. EPA understands that some certifying certifying authority. After considering public comments on authorities have established general Some commenters recommended that this issue, the final rule does not submission procedures for project ‘‘receipt’’ should mean the date when a identify each circumstance that may proponents to follow when seeking certification request and all materials warrant the submission of a new State or Tribal licenses or permits. The required by State or Tribal law are certification request because the Agency EPA encourages the use of consistent documented as received by a certifying believes that such circumstances are procedures for all submittals, including authority in accordance with applicable best addressed on a case-by-case basis. section 401 certification requests. The submission procedures. The Agency However, if certain elements of the final rule requirement that certification disagrees with these commenters. The proposed project (e.g., the location of requests be documented as received ‘‘in EPA is aware that some States have the project or the nature of any potential accordance with applicable submission regulations establishing what should be discharge that may result) change procedures’’ is intended to recognize in a request for certification and when

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it will be considered ‘‘complete.’’ For challenges of their certification rule will provide the federal agency instance, the California Code of determinations. The final rule with notification about a certification Regulations states: ‘‘Upon receipt of an establishes that a certification request is request and sufficient information to application, it shall be reviewed by the administratively complete when it determine the reasonable period of time certifying agency to determine if it is contains the items set forth in section for that certification request. This complete. If the application is 121.5(b) or (c). The final rule requires process will also address commenter incomplete, the applicant shall be that the project proponent request a pre- concerns by providing federal agencies notified in writing no later than 30 days filing meeting with the certifying and certifying authorities with a after receipt of the application, of any authority before submitting the concurrent notice when a certification additional information or action certification request, thereby providing request is received. As discussed above, needed.’’ Cal. Code Regs. tit. 23, 3835(a). that certifying authority the opportunity the Agency recognizes that certifying The EPA also notes that some State to discuss any additional informational authorities may have different regulations may require the completion needs it may have. If a project submission procedures and of certain processes, studies, or other proponent fails to supply the certifying recommends that project proponents regulatory milestones before it will authority with information necessary to submit copies to the federal agency in consider a certification request assure that the discharge from the a manner consistent with the certifying ‘‘complete.’’ Although the CWA proposed project complies with the authority’s submission procedures, to provides flexibility for certifying water quality requirements, the ensure that the request is received at the authorities to follow their own certifying authority may so specify in a same time. The final rule requires the administrative procedures, particularly denial of the certification. If the federal agency to communicate the for public notice and comment, see 33 certifying authority requests information reasonable period of time to the U.S.C. 1341(a), these procedures cannot from the project proponent that is certifying authority within 15 days of be implemented in such a manner as to beyond the scope of section 401, the receiving the certification request from violate the CWA. The Act requires the project proponent’s remedy lies with a the project proponent in accordance timeline for review to begin ‘‘after court of competent jurisdiction. To with section 121.5(a) of the final rule. receipt’’ of a certification request, avoid situations where the certifying The EPA expects federal licensing and notwithstanding any completeness authority requests information from permitting agencies to provide the determination procedure, and it requires project proponents that cannot be notice required in this final rule and certifications to be processed within a developed and submitted within the strongly encourages federal agencies to ‘‘reasonable period of time (which shall reasonable period of time, the EPA promulgate or update agency-specific not exceed one year.’’). recommends that both the project regulations to implement CWA section One principal goal of this rulemaking proponent and the certifying authority 401 and this final rule. However, in the is to provide additional clarity and work in good faith, consistent with unlikely event that the federal agency certainty about the certification process, section 401, and have early and does not provide the required notice, including when the reasonable period of sustained coordination and the EPA recommends that certifying time begins. Establishing a consistent communication to streamline the overall authorities assume that the federal and objective list of information certification process. agency’s promulgated default reasonable necessary to start the statutory period of time applies (e.g., the Corps’ reasonable period of time is necessary to Some commenters asserted that under the proposed rule, the federal agency 60 days). If the federal agency fails to achieve that goal. As discussed above, provide notification and has not the Agency has defined the elements would not have a reliable way to promulgated a default or categorical necessary to provide the certifying determine whether a certifying authority reasonable period of time, the Agency authority with sufficient notice and has received a request because the recommends that certifying authorities information to begin to evaluate a proposed rule required only project assume the reasonable period of time request for certification. If there are proponents, and not certifying expires one year from the date the additional information needs aside from authorities, to alert federal agencies certification request was received. The the finalized components provided in a when a project proponent had Agency recommends that all parties certification request, the certifying submitted a certification request. Project retain copies of certification requests for authority and project proponent may proponents have the burden of their records in case there is any discuss those needs during the pre-filing requesting certification from a certifying meeting (see section III.B of this notice) authority and for providing federal misunderstanding about the beginning or during the reasonable period of time. agencies with the certification to help of the reasonable period of time. The requirement that certification fulfill the requirements of a federal EPA acknowledges that many States requests be received ‘‘in accordance license or permit. After reviewing and Tribes have established their own with applicable submission procedures’’ public comments, the Agency has requirements for section 401 cannot be used by certifying authorities decided not to finalize the requirement certification request submittals, which to introduce unreasonable delay proposed at section 121.4(b) in order to may be different from or more extensive between when an agency receives a provide all interested parties with than the ‘‘certification request’’ certification request and when ‘‘receipt’’ greater clarity and a common requirements set forth in this final rule. occurs, as this would contravene this understanding regarding the status of a However, these additional requirements final rule. certification request. To effectuate should not be used to expand the Many commenters expressed concern notice of a certification request at the certification request requirements in that the proposal lacked any earliest point in time, section 121.5(a) of this final rule, which are intended to requirement that a request be the final rule requires a project establish clear expectations for ‘‘administratively complete.’’ One proponent to submit a certification certifying authorities and project commenter asserted that without a request to the appropriate certifying proponents, and which provide a robust administrative record on which authority and the federal licensing or transparent and consistent framework to rely, certifying authorities would be permitting agency concurrently. for when the reasonable period of time more vulnerable to successful Including this requirement in the final begins. The EPA notes that certifying

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authorities may update their existing additional specificity and procedures (see section III.E.2.b of this notice for section 401 certification regulations to for project proponents may reduce the further discussion of this definition). If be consistent with the EPA’s duplication of work between federal, the certifying authority cannot certify regulations. Additionally, the EPA State and Tribal authorities and may (with or without conditions) that the observes that certifying authorities may make the certification process more discharge from a proposed project will wish to work with neighboring efficient. In the absence of formal comply with ‘‘water quality jurisdictions to develop regulations that guidance or rulemaking from the requirements,’’ it may either deny or are consistent from State to State. This appropriate federal licensing or waive certification. There may be may be particularly useful for interstate permitting agency, the EPA multiple reasons why a certifying projects, like pipelines and transmission recommends that project proponents, authority is unable to certify, including lines, requiring water quality certifying authorities, and federal a lack of resources for reviewing the certifications from more than one State. agencies coordinate and discuss the certification request, higher priority Some commenters requested appropriate timing for a section 401 work that the certifying authority must additional clarification about when certification request in light of the attend to, or evidence that the discharge project proponents should submit a federal licensing or permitting process will not comply with ‘‘water quality certification request, relative to the and other project approval requirements.’’ Under the former timelines in federal licenses or permits requirements. circumstances, waiver would be or other federal laws. One commenter appropriate; and under the latter stated it would be helpful to specify a D. Certification Actions circumstance, denial would be point in the federal permitting timeline 1. What is the Agency finalizing? appropriate. when project proponents should submit a certification request. The commenter Consistent with the text of the CWA, a. Grant suggested that this point in time should under the final rule a certifying When a certifying authority grants a be based on when States would have authority may take one of four actions section 401 certification, it has adequate information to make a pursuant to its section 401 authority: concluded that the potential point certification decision. One commenter Grant certification, grant certification source discharge into waters of the explained that if a State is required to with conditions, deny certification, or United States from the proposed project issue section 401 certification before waive its opportunity to provide a will be consistent with ‘‘water quality NEPA environmental documentation is certification. These actions are reflected requirements.’’ Granting certification complete and made available, the State in section 121.7 of the final regulatory allows the federal agency to proceed would have to initiate state text. Any action by the certifying with issuing the license or permit. environmental review before NEPA authority to grant, grant with b. Grant With Conditions documents are available, which is an conditions, or deny a certification unnecessarily burdensome approach for request must be within the scope of If the certifying authority determines both the State and the applicant. Other certification (see section III.E of this that the potential discharge from a commenters noted that the proposed notice), must be completed within the proposed project would be consistent rule could place an unnecessary burden established reasonable period of time with ‘‘water quality requirements’’ only on States and Tribes if an EIS results in (see section III.F of this notice), and if certain conditions are met, the a no action alternative being chosen, but must otherwise be in accordance with authority may include such conditions the State or Tribe has already expended section 401 of the CWA (see section in its certification. Where the certifying resources to complete a section 401 III.G of this notice). Alternatively, a authority grants certification with certification. The EPA also observes that certifying authority may expressly conditions in accordance with section some federal permit or license waive the certification requirement. 401 and this final rule, the federal procedures can be lengthy and can Under the final rule, certifying agency may proceed to issue the license result in project modifications in the authorities may also implicitly waive or permit. Certification conditions that early stages of the process. the certification requirement by failing satisfy the requirements of this final rule The Agency is not prescribing a or refusing to act (see section III.G.2.d of must be incorporated into the federal specific point in a federal licensing or this notice). All certification actions license or permit, if issued, and become permitting process when project must be in writing, and the contents and federally enforceable. proponents are required to submit a effects of such actions are discussed certification request. The Agency is below in section III.G of this notice. The c. Deny aware that FERC’s regulations already final rule is consistent with the A certifying authority may deny establish when during the hydropower Agency’s longstanding interpretation of certification if it is unable to certify that licensing process a project proponent what actions may be taken in response the potential discharge from a proposed may request certification. Specifically, to a certification request. project would be consistent with ‘‘water FERC’s regulations require project quality requirements’’ as defined in this 2. Summary of Final Rule Rationale and proponents to complete a years-long rule. CWA section 401(a)(1) provides process that includes environmental Public Comment that ‘‘[n]o license or permit shall be studies and reviews before a project Under the final rule, if the certifying granted if certification has been denied proponent may request certification for authority determines that the discharge by the State, interstate agency, or the that federal license. See 18 CFR 5.22, from a proposed project will comply Administrator, as the case may be.’’ 33 5.23. The Agency encourages all federal with specific provisions enumerated in U.S.C. 1341(a)(1). licensing and permitting agencies to CWA section 401(a) and with other This final rule reaffirms the ability of evaluate their programs and processes appropriate State or Tribal water quality a project proponent to submit a new and to consider promulgating or requirements, it may grant that certification request if a previous updating their section 401 certification with or without conditions, request is denied. Some commenters implementing regulations to specify as appropriate. To provide additional agreed that it would always be proper to when a section 401 certification request clarity, section 121.1(n) of the final rule allow project proponents to request should be submitted. Providing defines ‘‘water quality requirements’’ certification again if the certifying

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authority denied their previous in sections 121.7(c)-(e) of this rule.55 As concluded that section 401 is best request(s). Other commenters discussed throughout this final rule interpreted as protecting water quality interpreted this provision as preventing preamble, section 401 requires a from federally licensed or permitted certifying authorities from denying with certifying authority to act on a activities that may result in point source prejudice and recommended that the certification request within a reasonable discharges into waters of the United final rule explicitly allow certifying period of time, not to exceed one year. States. The Agency is finalizing the authorities the option to deny with If the certifying authority fails or refuses definition of discharge with only one prejudice. These commenters asserted to act within that reasonable period, the change, replacing ‘‘navigable waters’’ that denial with prejudice is a tool that certification requirement will be with ‘‘waters of the United States’’: preserves certifying authorities’ deemed waived by the federal licensing Discharge for purposes of this part resources in cases where they are asked or permitting agency. Id. As described means a discharge from a point source to review substantially similar further in section III.G.2.d of this notice, into a water of the United States. certification requests for the same if a certification grant, grant with The Agency chose to use the more project once it has already determined conditions, or denial does not satisfy the commonly used term ‘‘waters of the that the project cannot comply with procedural requirements of this final United States’’ to increase clarity in the water quality requirements. Some rule, it is waived. When a certifying final rule; however, this does not change commenters argued that section 401 authority waives the requirement for a the meaning of the definition. As does not preclude certifying authorities certification, under this final rule the described further below, the term from denying requests with prejudice, federal agency may proceed to issue the ‘‘water quality requirements’’ is used and that regulations that precluded license or permit in accordance with its throughout section 401, and the term implementing regulations. certifying authorities from doing so ‘‘other appropriate requirements of State would be inconsistent with the statute. E. Appropriate Scope for Section 401 law’’ is used in section 401(d), but Other commenters noted that the statute Certification Review neither of these terms is defined in the does not explicitly authorize denial CWA. As the terms are used in the 1. What is the Agency finalizing? with prejudice or prevent a project CWA, the EPA interprets ‘‘other proponent from requesting a new While Congress did not provide a appropriate requirements of state law’’ section 401 certification after a request single, clear, and unambiguous to mean a subset of ‘‘water quality is denied. The EPA agrees that the definition of the appropriate scope of requirements.’’ To give more specific statute is silent on this issue. The EPA section 401, the text, structure, and meaning to this ambiguous and is not aware that any other CWA legislative history of the CWA undefined language, the final rule program authorizes a permit application (including the name of the statute defines the term ‘‘water quality to be denied with prejudice or explicitly itself—the Federal Water Pollution requirements’’ as follows: precludes a permit applicant from re- Control Act Amendments of 1972 or, Water quality requirements means applying for a permit after an initial more commonly, the Clean Water Act) applicable provisions of sections 301, 302, denial. For consistency with other CWA demonstrate that section 401 303, 306, and 307 of the Clean Water Act, programs, and because nothing in appropriately focuses on addressing and state or tribal regulatory requirements for water quality impacts from potential or point source discharges into waters of the section 401 prohibits a project actual discharges from federally United States. proponent from submitting a new licensed or permitted projects. The EPA, certification request after a denial is The final rule uses the term ‘‘water as the federal entity charged with issued, the EPA is finalizing this quality requirements’’ to define the administering the CWA, has authority to universe of provisions that certifying provision as proposed. In the event that reasonably resolve any ambiguity in a denial is issued, the EPA recommends authorities may consider under sections section 401’s scope through notice and 401(a) and 401(d). This definition has that the project proponent discuss with comment rulemaking. To accomplish the certifying authority whether project been modified from the proposal to this, the Agency is finalizing as provide additional clarity. plans could be altered or whether proposed section 121.3 of the regulatory additional information could be The scope of certification in section text, which contains the following clear 121.3 is the foundation of the final rule. developed to demonstrate that the and concise statement of the scope of discharge from the proposed project will The scope is based on the text, certification: structure, and legislative history of the comply with applicable water quality The scope of a Clean Water Act requirements upon submittal of a new CWA, is informed by important policy section 401 certification is limited to considerations and the Agency’s certification request. assuring that a discharge from a expertise, and informs all other Federally licensed or permitted activity d. Waive provisions of the final rule. The scope will comply with water quality of certification provides clarity to requirements. Under the final rule, a certifying certifying authorities, federal agencies, The Agency is also finalizing authority may waive its opportunity to and project proponents regarding the definitions of the terms ‘‘discharge’’ and certify in two ways (see section 121.9(a) nature and breadth of the environmental ‘‘water quality requirements.’’ Together, of the final regulatory text). First, the review that is expected and the type of these provisions of the final rule certifying authority may waive information that may reasonably be provide clarity on the scope of section expressly by issuing a written statement needed to review a certification request. 401. As explained in section III.A of this that it is waiving certification. Second, The scope applies to all actions on a notice, based on the text and structure the certifying authority may implicitly certification request, including a of the Act, as well as the history of or constructively waive by failing or decision to grant, grant with conditions, modifications between the 1970 version refusing to act within the reasonable or deny. The scope of certification also and the 1972 amendments, the EPA has period of time, failing to act in helps inform what may be a reasonable accordance with the procedural 55 period of time for a certifying authority requirements of section 401, or failing to As noted elsewhere in this notice, waiver of a specific certification condition does not waive the to review and act on a certification act in accordance with the requirements entire certification. request.

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To help ensure that section 401 project as a whole. Many commenters waters of the United States. See City of certification actions are taken within the relied on the Supreme Court’s rationale Milwaukee v. Illinois, 451 U.S. 304, 317 scope of certification, the EPA is in PUD No. 1 and argued that the plain (1981) (quoting legislative history of finalizing certain requirements for language of section 401(d) is 1972 amendments). See also County of certifications in section 121.7(c) of the unambiguous and reasonably read as Maui, Hawaii v. Hawaii Wildlife Fund, final rule, certification conditions in authorizing conditions and limitations et al., No. 18–260, Op. at 2 (April 23, section 121.7(d) of the final rule, and on the activity as a whole. Commenters 2020). The final rule gives due weight denials in section 121.7(e) of the final asserted that the plain meaning of the to Congress’ intentional choice to rule. For further discussion of the statutory language is clear, as is the change the language in section 401(a) to contents and effects of certification legislative intent, and further asserted ensure that ‘‘discharges’’ from federally conditions and denials, see section III.G that the EPA’s reliance on Chevron is licensed or permitted activities, rather of this notice. misplaced. Commenters claimed that than the activity as a whole, comply the Court in PUD No. 1 found the 2. Summary of Final Rule Rationale and with appropriate water quality statutory language unambiguous and Public Comment requirements. analyzed section 401 under Chevron The Agency also disagrees with The Agency is finalizing as proposed step 1 and therefore, they argue, Brand commenters who asserted that the scope the scope of certification in section X does not support EPA’s reanalysis of of certification is expressed 121.3 of the final rule. Consistent with the statutory language in a manner unambiguously in section 401. As the proposal, the scope of a section 401 contrary to the PUD No. 1 opinion. demonstrated by the variation in public certification in the final rule is limited These commenters asserted that even if comments received, section 401 is to assuring that a ‘‘discharge’’ from a it was not a Chevron step 1 analysis, the susceptible to a multitude of federally licensed or permitted Court’s majority opinion is a reasonable, interpretations. The EPA also disagrees activity—rather than the activity as a holistic reading of section 401. These with the suggestion that the PUD No. 1 whole—‘‘will comply’’ with ‘‘water commenters also asserted that the Court Court found section 401 to be quality requirements.’’ The definition of did not rely on the EPA’s interpretation unambiguous. Nowhere in the opinion ‘‘water quality requirements’’ has been of the statute, but relied on the plain does the Court conclude that section modified in the final rule to provide language of the statute and therefore, 401 is unambiguous. In fact, the additional clarity. they argue, Brand X does not support Supreme Court in PUD No. 1 offered its a. Activity Versus Discharge the EPA’s reanalysis of the statutory own interpretation of the ambiguous language in a manner contrary to PUD. The Agency is finalizing the rule as language in section 401 when it No. 1. Some commenters also asserted ‘‘reasonably read’’ the scope of section proposed, focusing the scope of section that the proposed scope of certification 401 on the discharge from a federally 401 to allow conditions and limitations improperly departs from the EPA’s on the activity as a whole. As discussed licensed or permitted activity, as longstanding interpretation without opposed to the activity as a whole. As in detail in section II.F.4.a.i of this providing an adequate justification. notice, although the Court did not described in section II.G.1.b of this Other commenters agreed with the articulate a Chevron step one or step notice, section 401(a) explicitly EPA’s interpretation of the statutory two analysis in its decision, the Court provides that the certifying authority, language and case law analysis in the did reference EPA’s 1971 certification described as ‘‘the State in which the proposed rule preamble, including the discharge originates or will originate,’’ interpretation of the scope of regulations with approval and must certify that ‘‘any such discharge certification, and agreed that section 401 concluded that the EPA’s ‘‘reasonable will comply with the applicable is a limited grant of federal authority to interpretation’’ (based on those provisions of sections 301, 302, 303, 306 States and Tribes. These commenters regulations) is entitled to deference. Id. and 307 of this Act’’ (emphasis added). found the EPA’s interpretation of The Court further found the EPA’s The plain language of section 401(a) section 401 reasonable despite their regulations to be consistent with the therefore directs authorities to certify view that it was inconsistent with the Court’s own reasonable reading of the that the discharge resulting from the majority opinion in PUD No.1. These language of sections 401(a) and (d). Id. proposed federally licensed or commenters also observed that the at 712. As discussed in section II.F.4.a.i permitted project will comply with the Court in PUD No.1 did not have the of this notice, the Court’s ‘‘reasonable CWA. Although section 401(d) benefit of an EPA interpretation of the reading’’ of a statute undercuts any authorizes a certifying authority to 1972 version of section 401. argument that the statute’s text or establish conditions to assure that the The Agency disagrees with meaning is unambiguous. ‘‘applicant’’ will comply with commenters who asserted that the For the first time, the EPA has applicable water quality requirements, proposed scope of certification conflicts presented in this final rule the Agency’s the EPA does not interpret the use of with the CWA, case law, and legislative interpretation and analysis of section ‘‘applicant’’ in section 401(d) as history, and disagrees with the 401. The Agency’s interpretation of the broadening the scope beyond contention that the proposed scope was scope of section 401 as presented in consideration of water quality impacts not supported by adequate justification. section 121.3 of this final rule is not from the ‘‘discharge,’’ as set out in The scope of certification in the final foreclosed by the holding in PUD No. 1. section 401(a). rule is based on the EPA’s holistic The Court’s conclusion that section 401 Some commenters asserted that the examination of section 401 and the applied to the activity as a whole, rather proposed scope of review for section legislative history. Congress’ change in than the discharge, did not follow from 401 conflicts with the language of the section 401(a) from ‘‘activity’’ to the unambiguous terms of the statute. CWA, applicable case law, and the ‘‘discharge’’ in the 1972 amendments Nat’l Cable & Telecomm. Ass’n v. Brand legislative history of the CWA. These reflects the ‘‘total restructuring’’ and X internet Serv., 545 U.S. 967, 982 commenters asserted that the proper ‘‘complete rewriting’’ of the existing (2005). The scope of certification in scope of section 401 should include all statutory framework in 1972 that section 121.3 of this final rule is water quality impacts from the federally resulted in the core provisions of the permissible and is based on a reasonable licensed or permitted activity or the CWA that regulate discharges into interpretation of the ambiguity created

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by the different language Congress used agreed that the conflicting EPA’s holistic analysis of the text, in sections 401(a) and 401(d) of the Act. interpretations that have followed the structure, and history of CWA section Some commenters supported the original promulgation need to be 401, informed by the Agency’s expertise alternative interpretation presented in addressed through revised regulations. developed over nearly 50 years of the proposed rule to the effect that only For the reasons explained in section implementing the CWA. the CWA sections enumerated in section II.F of this notice, the EPA concludes Commenters asserted that the 401(a) may be used as a basis for a water that the existing certification regulations proposed rule would weaken the ability quality certification denial, while must be updated to reflect the language of States and Tribes to protect water section 401(d) lists the considerations of the 1972 CWA amendments. This quality, and some commenters asserted for applying conditions to a granted final rule reflects the EPA’s holistic that the proposed rule would lead to water quality certification. These review of the CWA statutory text, the negative impacts to the environment commenters stated that this approach history of that text, and legislative and public health. Some commenters reflects the plain language of the CWA, history, and is informed by relevant case asserted that the purpose of the rule is and therefore that ‘‘any other law. The EPA acknowledges that the not consistent with the CWA’s goal of appropriate requirement of State law’’ final rule’s focus on discharges, as protecting and enhancing the quality of could be considered only when opposed to the activity as a whole, is the nation’s waters. These commenters applying conditions to a water quality not consistent with the majority opinion maintained that the proposed rule certification and cannot be grounds for in PUD No. 1; however, the Agency’s would not facilitate States’ and Tribes’ a denial. Other commenters stated that rationale supporting its interpretation is ability to carry out their roles and section 401(a) and section 401(d) do not grounded in the text of the statute, gives responsibilities under the CWA. Some and have never been interpreted to have due weight to word choices made by commenters asserted that most federally different scopes. After considering all Congress, and is clearly explained in the licensed or permitted projects may public comments on this and other proposed and final rule preambles. result in water quality impacts beyond issues, the Agency is not finalizing the Some commenters asserted that the just those from a point source discharge, proposed alternative interpretation. The proposed rule was inconsistent with and argued that the appropriate scope of EPA believes that interpreting section other holdings in PUD No. 1, including the certification is the activity and not 401 as establishing different standards that (1) States could condition a only the discharge. These commenters for issuing a denial under section 401(a) certification on any limitations provided examples of project impacts and for requiring conditions under necessary to ensure compliance with that they asserted may affect water section 401(d) is likely to lead to State water quality standards or other quality but would be tangential to the implementation challenges, including appropriate requirements of State law; discharge itself, including increased confusion by project proponents, (2) a minimum flow condition was an water withdrawals, releasing pollutants certifying authorities and federal appropriate requirement of State law; into groundwater, increased erosion and licensing and permitting agencies. and (3) a State’s authority to impose sedimentation, reduced stormwater Moreover, if a certifying authority minimum flow requirements would not infiltration, disconnecting ecosystems, determines that it must add conditions be limited on the theory that it and harming endangered species. Other under section 401(d) to justify a grant of interfered with FERC’s authority to commenters expressed concern that certification under section 401(a), that is license hydroelectric projects. The EPA limiting the scope of section 401 to equivalent to deciding that—without disagrees with these commenters. First, discharges would not allow States and those conditions—it must deny neither the proposed rule nor the final Tribes to address indirect impacts from certification. The standard is therefore rule prohibits water quality-related the project, such as impacts resulting essentially the same. As explained certification conditions that are from hydrological changes or increases above in this section and in section necessary to assure compliance with in impervious surfaces that result in II.F.4.a.i of this notice, the Agency is appropriate State or Tribal law. Rather, high-velocity runoff events that can finalizing what it has determined to be the rule clarifies the scope of laws that deposit sediment or other pollutants the most appropriate, reasonable are appropriate for consideration and as into waterways. interpretation of section 401 that is the basis for certification conditions. As The Agency recognizes the based on a holistic analysis of section described in this section of the notice, importance of protecting water quality 401, the entirety of the CWA, and the the EPA made some changes in the final and that aquatic resources serve a legislative history. rule to provide additional clarity and variety of important functions for Some commenters argued that the regulatory certainty. Second, neither the protection of overall water quality. focus of the CWA 1972 amendments on proposed rule nor the final rule address Ultimately, the Agency’s interpretation discharges does not override what they minimum flow issues. of section 401 is a legal interpretation assert are the plain terms of section 401 Some commenters asserted it was that has been established within the and accused the EPA of selectively inappropriate for the proposed rule to overall framework and construct of the picking language to support a narrower rely on Justice Thomas’ ‘‘nonbinding’’ CWA, informed by important policy scope. Some commenters disagreed with dissent in PUD No. 1 instead of the considerations and the Agency’s the EPA’s view that the proposed rule holding of the majority opinion. One expertise. The purpose of this is necessary to update EPA’s commenter suggested that reliance on rulemaking is to provide a clear certification regulations to conform with the dissent exposes the EPA to legal articulation of what is authorized by the 1972 CWA amendments, and they challenge, injecting even more CWA section 401, including the maintained that the EPA’s reading of the uncertainty into water quality appropriate procedures and scope of statute is inconsistent with Supreme certification programs. For the reasons decision-making for water quality Court precedent. Other commenters explained in sections II.F.4.a.i, the EPA certifications, that is supported by a agreed that the proposed rule is disagrees with these commenters. The robust and comprehensive legal analysis necessary, as the existing water quality EPA is not relying on any single judicial of the statute. The federal licenses and certification regulations were opinion for its interpretation of permits that are subject to section 401 promulgated prior to the 1972 CWA ambiguous statutory terms in this final are also subject to additional federal amendments, and these commenters rule. Rather, the final rule reflects the agency statutory reviews, including the

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National Environmental Policy Act, the 306), water quality standards (section incorporate portions of the enumerated Endangered Species Act, and the 303), toxic pretreatment effluent CWA provisions. National Historic Preservation Act, all of standards (section 307), and State or To avoid placing a potentially which are intended to provide a Tribal regulatory requirements for point burdensome factual inquiry on States comprehensive environmental source discharges into waters of the and Tribes, the final rule definition of evaluation of potential impacts from a United States, including those more ‘‘water quality requirements’’ is drafted proposed project. In addition, where stringent than federal standards. The more broadly to include those applicable, the CWA’s longstanding definition in the final rule has been enumerated provisions of the CWA and regulatory permitting programs, like modified from the proposal to provide State and Tribal regulatory requirements those under sections 402 and 404, will additional clarity. that pertain specifically to point source continue to address water quality issues The term ‘‘water quality discharges into waters of the United related to the discharge of pollutants requirements’’ is used throughout States. This is consistent with the plain into waters of the United States, and the section 401, and the term ‘‘other language of the statute because, with CWA’s non-regulatory measures, like appropriate requirements of State law’’ one exception, each of the enumerated protection of water quality from is used in section 401(d), but neither of CWA provisions in section 401 56 nonpoint sources of pollution under these terms is defined in the CWA. describes discharge-related limitations. section 319, will continue to address Because the EPA interprets ‘‘other The only exception is section 303, pollution of water generally to achieve appropriate requirements of state law’’ which addresses water quality the objective of restoring and to be a subset of ‘‘water quality standards, but these are primarily used maintaining the chemical, physical, and requirements,’’ the final rule uses the to establish numeric limits in point biological integrity of the nation’s term ‘‘water quality requirements’’ to source discharge permits. Further, and waters. Section 401, on the other hand, define the universe of provisions that as described in section III.A of this provides specific and defined authority certifying authorities may consider notice, section 401 applies only to for States and Tribes to protect their when evaluating a certification request actual or potential discharges into water quality in the context of a federal pursuant to CWA sections 401(a) and waters of the United States. The final licensing and permitting process, 401(d). The EPA’s interpretation of definition of ‘‘water quality including those processes in which these terms and the final definition are requirements’’ therefore closely aligns State or Tribal authority may otherwise intended to closely align the scope and with the text of the statute, while be entirely preempted by federal law. application of section 401 regulations providing an objective test for whether The language of section 401 makes it with the text of the statute. a particular provision is within the clear that this authority is limited and An interpretation of section 401 that scope of section 401. The Agency does not broadly encompass all most closely aligns with the text of the anticipates that this approach will potential environmental impacts from a statute would limit ‘‘water quality increase clarity and efficiency in the project. requirements’’ to sections 301, 302, 303, certification process. Under this final Some commenters requested 306 and 307 of the CWA and State and rule, a State or Tribal regulatory examples of what considerations would Tribal laws and regulations that are requirement that applies to point source be outside the scope of certification, either counterparts to or that implement discharges into waters of the United based on the Agency’s limiting the these enumerated sections of the Act. States is a ‘‘water quality requirement’’ scope of certification to discharges, The EPA considered adopting this rather than to the entire activity or and is therefore within the scope of interpretation in the final rule, but certification. project. Commenters mentioned specific recognizes that, in some cases, it may be The phrase ‘‘state or tribal regulatory considerations that they believed should difficult to determine whether a State or requirements for point source be excluded from the scope of Tribal statute or regulation was adopted discharges into waters of the United certification in the regulatory text, such ‘‘to implement’’ sections 301, 302, 303, States’’ in the final rule’s definition as effects caused by the presence of 306 and 307 of the CWA. In many cases, includes those provisions of State or pollutants in a discharge that are not State or Tribal statutes may have been Tribal law that are more stringent than attributable to the discharge from a enacted prior to the 1972 CWA federal law, as authorized in CWA federally licensed activity, effects amendments, but updated or modified section 510. 33 U.S.C. 1370. The attributable to features of the permitted over the decades to implement or activity besides the discharge, and legislative history supports the EPA’s effects caused by the absence or 56 In 1971, EPA Administrator Ruckelshaus interpretation in this final rule. See S. reduction of discharge. The Agency provided a written statement to the Chairman of the Rep. No. 92–414, at 69 (1971) (‘‘In generally agrees that such House Committee on Public Works concerning H.R. addition, the provision makes clear that 11896. H.R. Rep. No. 92–911, at 147–171 (1972). any water quality requirements considerations would be beyond the The Administrator described 401(d) as it was scope of certification as articulated in drafted at the time as requiring certifications to established under State law, more this final rule; however, the Agency is ‘‘assure compliance with Sections 301 and 302 and stringent than those requirements not modifying the regulatory text to ‘any other applicable water quality requirement in established under this Act, also shall such State.’ ’’ Id. at 166. The Administrator noted through certification become conditions reflect these specific considerations, as that ‘‘[t]he scope of the catchall phrase is not there may be unique project-specific defined in Section 401, and the question arises as on any Federal license or permit.’’). It is facts or circumstances that must inform to whether certification by the State is to include important to note, however, that these whether a particular impact is caused by certification with respect to discharges from point more stringent provisions may not alter sources to meet the provisions of Sections 306 or the scope of certification as provided in the discharge, as defined in this final 307.’’ Id. The Administrator stated that 401(d) could rule. be ‘‘more clearly expressed if the term ‘applicable this final rule. For example, nonpoint water quality requirement’ was defined. . . .’’ and source discharges and discharges to b. Water Quality Requirements then offered an interpretation and a definition of other non-federal waters are not within Under the final rule, the term ‘‘water the term. Id. The Administrator’s recommendation the scope of certification and are not was not adopted in the enacted bill, and this included in the definition of ‘‘water quality requirements’’ means applicable rulemaking is the first formal step the EPA has effluent limitations for new and existing taken to clarify the meaning of the terms in section quality requirements.’’ Accordingly, sources (CWA sections 301, 302, and 401(d). they are not factors to be considered

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when making decisions on certification standards adopted by Tribes, leaving no requirements,’’ a term that is also used requests. protection for most Tribal waters. The throughout section 401. The final rule, Some commenters agreed that the EPA appreciates these comments, and like the proposal, is informed by the proposed definition limiting ‘‘any other under the final rule, State and Tribal principle ejusdem generis. Under this appropriate requirement of state law’’ to regulatory provisions for point source principle, where general words follow ‘‘EPA-approved state or tribal Clean discharges into waters of the United an enumeration of two or more things, Water Act regulatory program States are ‘‘water quality requirements’’ they apply only to things of the same provisions’’ is the correct interpretation regardless of whether they have been general kind or class specifically of the Act because section 401 cannot approved by the EPA. Therefore, if a mentioned. See Wash. State Dept. of apply beyond the authority of the CWA. Tribe has adopted water quality Social and Health Services v. Keffeler, These commenters agreed that the standards under Tribal law that serve as 537 U.S. 371, 383–85 (2003). Given the principle ejusdem generis and the logic a basis for effluent limitations or other breadth of potential interpretations of of Justice Thomas’s dissent in PUD No. requirements for point source ‘‘water quality requirements’’ and 1 show that the appropriate discharges into waters of the United ‘‘other appropriate requirement of State interpretation of ‘‘any other appropriate States, the certifying authority must law’’ described throughout this notice, requirement of state law’’ extends ‘‘only consider those provisions when the Agency concludes that the most to provisions that, like other provisions evaluating a certification request. appropriate interpretation is one that in the statutory list, impose discharge- Some commenters asserted that the remains loyal to the text of the statute. related restrictions,’’ which are the proposed rule would limit the ability of Accordingly, the final definition of ‘‘regulatory provisions of the CWA.’’ a Tribe to adopt water quality ‘‘water quality requirements’’ includes Other commenters expressed confusion regulations or to obtain TAS for section sections 301, 302, 303, 306, and 307 of regarding the meaning and scope of the 401 certifications. Neither the proposal the CWA and State or Tribal statutes phrase ‘‘EPA-approved state or tribal nor the final rule affect in any way the and regulations governing point source Clean Water Act regulatory program ability of a Tribe to adopt CWA water discharges into waters of the United provisions’’ in the proposed rule and quality standards or obtain TAS. The States. asked for clarification on which EPA understands there may be unique A few commenters stated that the regulatory programs would be included challenges with Tribal implementation EPA’s reliance on the canon of statutory in that term. Some commenters stated of CWA statutory authorities, but interpretation ejusdem generis is that this lack of clarity made the scope reiterates that pursuant to section unfounded because, if the context of a of the proposed rule ambiguous such 401(b), the EPA is available and statute dictates an alternative that States and Tribes would not be able obligated to provide technical expertise interpretation, ejusdem generis should to implement the regulations. on any matter related to section 401. In not apply, citing N. & W. Ry. v. Train The EPA has made some addition, the EPA actively and routinely Dispatchers, 499 U.S. 117 (1991). The enhancements to the final rule provides financial and technical EPA disagrees with these commenters definition of ‘‘water quality assistance to Tribes for the development who assert that the context of section requirements’’ to provide better clarity of aquatic resource protection programs. 401(d) dictates a different result. The and regulatory certainty. The final rule Such assistance includes Tribal capacity use of the word ‘‘appropriate’’ in section does not require these State and Tribal building for new or enhanced regulatory 401(d) indicates that Congress intended provisions to be EPA-approved. In programs, as well as development of to limit the phrase ‘‘requirement of state making this change, the Agency laboratory, field, and quantitative law’’ in some meaningful manner. It is considered that there may be State or methods, tools, and trainings for reasonable to conclude that Congress Tribal regulatory provisions that address monitoring and assessing aquatic intended that limitation to be informed point source discharges into waters of resources. With this final rule, the by the enumerated provisions of the the United States that only partially Agency is reaffirming its responsibilities CWA that appear in section 401, as well implement certain CWA programs or under section 401 to serve as a resource as other key statutory touchstones like that were not submitted to the EPA for and consultant to Tribes requesting the terms ‘‘discharge’’ and ‘‘navigable approval. The EPA also considered, as technical assistance. waters,’’ i.e., ‘‘waters of the United noted by some commenters, that States Some commenters, citing the broad States.’’ See Harrison v. PPG Industries, and Tribes may submit to the EPA CWA interpretation of ‘‘any other appropriate Inc., 446 U.S. 578, 578–79 (1980) regulatory program provisions, requirement of State law’’ in EPA’s (rejecting application of ejusdem generis including water quality standards and Interim Handbook, stated that the EPA where—unlike the word ‘‘appropriate’’ applications for ‘‘treatment as States’’ has not provided an adequate in section 401(d)—the relevant statutory (TAS), and wait months or sometimes explanation or rationale for departing phrase ‘‘any other final action’’ did not years for the EPA to act on those from its prior interpretation of the CWA. contain limiting language that rendered submittals. The final rule language The EPA disagrees with the suggestion its meaning uncertain and in need of addresses this concern by broadening that it has not provided sufficient or further interpretation). The phrase ‘‘any the universe of State and Tribal laws adequate explanation for the other appropriate requirement of State that may be considered ‘‘water quality interpretation presented in the proposed law’’ in section 401(d) is not unlimited requirements’’ compared to the rule. In any event, the final rule is based or expansive, but rather it contains proposal. in part on the plain language of section limiting language (‘‘appropriate’’) that A few commenters expressed concern 401, which provides that the must not be read out of the statute. In that the proposed rule failed to enumerated sections of the CWA and short, the canon of statutory recognize that most Tribes do not have ‘‘any other appropriate requirement of interpretation of ejusdem generis is a EPA-approved water quality regulations. State law’’ must be considered in a tool that the EPA reasonably and These commenters asserted that in areas water quality certification. The CWA properly used to inform the where the EPA is the certifying does not define what is an ‘‘appropriate interpretation of the ambiguous authority, the Administrator would not requirement of State law,’’ and the EPA statutory text in section 401. be able to consider water quality reasonably interprets this term to refer Many commenters agreed with the protective ordinances or water quality to a subset of ‘‘water quality analysis in the proposed rule preamble

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that section 401 focuses on protecting does not include categorical exclusions section 401(d) as a meaningful water quality and is not intended to requested by these commenters. limitation on what may be considered as address other environmental impacts Some commenters stated that the part of the scope of certification under such as air emissions, transportation proposed rule would violate the broad section 401. For the reasons stated effects, climate change, and other savings clause in section 510, which above, the Agency concludes that State examples mentioned in the preamble to applies to any pollution control or and Tribal regulatory requirements for the proposed rule. These commenters abatement requirement. These point source discharges into waters of stated that the proposed rule’s commenters asserted that nothing in the United States properly allow States definition of water quality requirements section 510 excludes conditions to participate in the section 401 appropriately ensures that the scope of imposed under section 401. These certification process, consistent with the certification addresses water quality commenters further asserted that CWA. concerns within the scope of the CWA. numerous courts have held that sections As discussed throughout this section A few commenters stated that the 401 and 510 evince Congress’ clear and as illustrated by public comments, legislative history for the CWA generally intent not to preempt but to the terms ‘‘water quality requirements’’ supports water quality as the ‘‘supplement and amplify’’ State and ‘‘any other appropriate requirement appropriate boundary for the scope of authority. The EPA interprets section of state law’’ lend themselves to a range water quality certifications, citing 116 401 as providing an opportunity for of potential interpretations. Informed by Cong. Reg. 8,984 (Mar. 24, 1970), and S. States and Tribes to evaluate and the public comments received, the EPA Rep. No. 92–414 (1971). The EPA agrees address water quality concerns during considered a number of different with these commenters and concludes the federal license or permit processes, interpretations prior to finalizing the that the final rule appropriately limits which, in some cases, might otherwise definition of the term ‘‘water quality water quality certifications issued under preempt State authority. There is requirements.’’ At one end of the section 401 to water quality issues. nothing in the text of section 401(d) that spectrum, the Agency considered Some commenters maintained that supports the idea that States have whether the text of section 401(d) could the proposed rule’s definition of water unbounded authority—as a result of mean that the only State or Tribal law- quality requirements would allow a section 510 or otherwise—to impose an based limitations allowed in a certifying authority only to consider unlimited universe of conditions on an certification would be ‘‘monitoring’’ numeric water quality criteria. Some applicant for a federal license or permit. requirements ‘‘necessary to assure’’ that commenters requested that the Any such conditions must be—as the the applicant for a federal license or definition of water quality requirements statute specifies—based on certain permit will ‘‘comply with’’ ‘‘any other be revised to explicitly include aquatic enumerated provisions of the CWA and appropriate requirement of State law.’’ use criteria and impacts such as on any other ‘‘appropriate’’ While this may be a permissible streamflow and water quantity. Some requirements of State law. As the interpretation of section 401(d), and it commenters expressed concern that the Agency charged with administering the may appear consistent with the scope of water quality requirements CWA, EPA is authorized to interpret directive in CWA section 304(h) that the under the proposed rule would no ‘‘appropriate’’ in a way that balances the EPA establish test procedures for the longer allow States and Tribes to scope and focus of section 401 and State analysis of pollutants and factors that consider water quality standards that go prerogative under section 510. If must be included in a certification, the beyond the scope of, or are more Congress intended for section 401 to EPA is not adopting this interpretation stringent than, the CWA. Neither the reserve all State authorities over in the final rule. Such an interpretation proposed definition of ‘‘water quality pollution control and abatement, as it would significantly limit the universe of requirements’’ nor the final rule would did under section 510, Congress could conditions related to ‘‘appropriate limit States to evaluating only numeric have specifically referenced section 510 requirements of State law’’ to only water quality criteria in a certification within section 401. Congress did not do monitoring conditions and would be review. While numeric water quality so, and instead cited to other specific narrower than the interpretation set criteria are a central element of a water provisions of the CWA and referenced forth in both the proposed and final quality certification, the final definition other ‘‘appropriate’’ requirements of rule. This interpretation also would not allows States and Tribes to evaluate State law. provide any additional clarity as to the narrative water quality standards and In fact, the 1972 Senate Bill version of scope of State or Tribal law that could other regulatory requirements that apply section 401(d) explicitly referenced be the basis for those monitoring to point source discharges into waters of section 510 and provided that a conditions. the United States. certification could include conditions At the other end of the spectrum, the Some commenters requested that the necessary to assure that the applicant EPA considered whether section 401(d) final rule clarify that requiring would comply with ‘‘any more stringent certification conditions could be based minimum in-stream flows is beyond the water quality requirements under State on any State or Tribal law, regardless of scope of water quality requirements and law as provided in section 510 of this whether it is related to water quality. that fish and wildlife impacts are not Act . . .’’ S. 2770, 92nd Cong. (1972). This interpretation reflects the current within the proper scope of section 401, This language was not included in the practice of some certifying authorities. because those impacts are more enacted bill, but the Senate Bill version The Agency rejected this broad and appropriately addressed under other demonstrates that Congress considered open-ended interpretation of section federal statutes and regulations. The including a reference to section 510 401(d) as inconsistent with the structure EPA agrees that, in some cases, these within section 401, but did not do so. and purposes of section 401 as reflected elements may be beyond the scope of This is further evidence that Congress in the text of the provision, including section 401. However, neither the did not intend section 401 to operate as Congress’s inclusion of the limiting proposed rule nor the final rule specify a broad savings clause for any pollution modifier ‘‘appropriate’’ in the phrase whether minimum flow conditions control or abatement requirement, as ‘‘any other appropriate requirement of would be appropriate certification some commenters assert. State law.’’ By including the term conditions. Given the case-specific These commenters also fail to account ‘‘appropriate,’’ Congress placed at least nature of such an analysis, the final rule for the use of the word ‘‘appropriate’’ in some limits on the phrase ‘‘any other

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. . . requirement of State law.’’ The EPA considerations while remaining loyal to specific water quality data or information, if concludes that such an open-ended the text of the CWA. The final rule is a any, that would be needed to assure that the interpretation would be far more broad reasonable interpretation of the discharge from the proposed project will than the proposed rule and the final ambiguous statutory text, is within the comply with water quality requirements. rule, would exceed the scope of clear scope of the CWA, and will These requirements are intended to authority provided under the CWA, and provide additional clarity and increase transparency and ensure that would further reduce regulatory regulatory certainty for certifying any limitation or requirement added to certainty. authorities, project proponents, and a certification, and any denial, is within The EPA also considered another federal licensing and permitting the scope of certification. broader interpretation that would agencies. As discussed in section II.G.1.a of this authorize certification conditions based notice, the EPA is aware that some on any State or Tribal water quality- c. Scope of Certification Conditions and certifying authorities may have related provision. Such an Denials previously interpreted the scope of interpretation could bring in conditions The scope of certification described section 401 to include non-water that purport to address non-federal above is the foundation of the final rule quality-related considerations. For waters or that regulate nonpoint source and it informs all other provisions of the example, the EPA understands some discharges. Some commenters stated final rule, including all actions taken by certifying authorities have included that section 401 provided a broad grant a certifying authority. Under this final conditions in a certification that have of authority to States and Tribes to rule, certification conditions and nothing to do with effluent limitations, protect water quality without denials must be within the scope of monitoring requirements, water quality, limitations. These commenters asserted certification as provided in section or even the CWA. Such requirements that to interpret the statute otherwise 121.3 of the final rule. In other words, were perhaps based on other non-water would read ‘‘any other appropriate a condition must be necessary to assure quality-related federal statutory or requirement of state law’’ out of the that the discharge from a proposed regulatory programs (NEPA, ESA), or on statute. These commenters also cited federally licensed or permitted project concerns about environmental media other cases that suggest that a broad will comply with water quality other than water. Or such requirements scope of State laws may be considered requirements, as defined at section might have been related to State, Tribal, for a water quality certification. The 121.1(n) of this final rule, and a denial or local laws, policies, or guidance that EPA did not adopt this broad must be due to the inability of a are unrelated to the regulation of point interpretation in the final rule because certifying authority to determine that source discharges to waters of the the EPA concluded that it is not the discharge from the proposed project United States. Similarly, the EPA is required by the statute and is not the will comply with water quality aware of circumstances in which some better reading of section 401(d). requirements. States have denied certifications on Although the interpretation has some To promote transparency and to help grounds that are unrelated to water superficial appeal, it errs by equating assure that certifying authorities quality requirements and that are ‘‘appropriate’’ with ‘‘any’’ and thereby understand and consider the beyond the scope of CWA section 401.57 fails to provide meaning to the word appropriate scope of information when The EPA does not believe that such ‘‘appropriate.’’ Under the familiar developing a certification condition or actions are authorized by section 401, interpretative canon, no portion of a issuing a denial, the final rule also because they go beyond assuring that statute may be construed as mere requires a certifying authority to include ‘‘discharges’’ from federally licensed or surplusage. Such an interpretation specific information to support each permitted activities comply with ‘‘water would also be inconsistent with the condition or denial. These requirements quality requirements.’’ See also section regulatory framework of the CWA, help to build a comprehensive II.G.1 of this notice for further which addresses point source administrative record and to document discussion of the terms ‘‘discharge’’ and discharges from waters of the United the certifying authorities’ basis for the ‘‘water quality requirements.’’ States. condition or denial. As discussed in Some commenters provided comment Finally, the EPA considered an greater detail in section III.G.2.b of this regarding the appropriate scope of interpretation that would limit water notice, this final rule requires that the denials. These commenters asserted that the proposed scope of review would quality requirements to those provisions following information be included in a limit a certifying authority’s ability to of State or Tribal law that restore or certification to support each condition: maintain the physical, chemical, and 1. A statement explaining why the deny certification. A few commenters biological integrity of the nation’s condition is necessary to assure that the asserted that states should be able to waters, consistent with CWA section discharge from the proposed project will deny certification if any state 101(a). These same principles could also comply with water quality requirements would not be met. Other be applied to only waters of the United requirements; and commenters argued that the scope of States, or narrowed to only include 2. A citation to federal, state, or tribal denial should be limited to just those water quality requirements that restore law that authorizes the condition. CWA provisions enumerated in section or maintain the chemical integrity of Similarly, as discussed in greater 401(a). As discussed in section III.D of waters. Although this may be a detail in section III.G.2.c of this notice, this notice, the final rule provides a permissible interpretation of the statute, the final rule requires that the following the EPA concluded that it may not information be included in a denial of 57 See Letter from Thomas Berkman, Deputy provide sufficient specificity or Commissioner and General Counsel, New York certification: State Department of Environmental Conservation, to regulatory certainty. Georgia Carter, Vice President and General Counsel, The EPA considered all of these 1. The specific water quality requirements with which the discharge will not comply; Millennium Pipeline Company, and John Zimmer, public comments and the varying 2. A statement explaining why the Pipeline/LNG Market Director, TRC Environmental interpretations described above and is Corp. (Aug. 30, 2017) (denying section 401 discharge will not comply with the identified certification because ‘‘FERC failed to consider or finalizing a definition of ‘‘water quality water quality requirements; and quantify the effects of downstream [greenhouse gas requirements’’ that strikes a balance 3. If the denial is due to insufficient emissions] in its environmental review of the among various competing information, the denial must describe the Project’’).

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certifying authority the ability to deny conditions and the appropriate bases for unrelated to the proposed federally certification if it is unable to certify that denial. In other words, if this final rule licensed or permitted project, and the proposed discharge will comply would preclude a State from requiring public access for fishing and other with ‘‘water quality requirements’’ as tree planting as a certification condition, activities along waters of the United defined in this rule. The Agency the final rule would also preclude a States. Using the certification process to disagrees with commenters who State from denying certification based yield facility improvements or payments asserted that a certifying authority on a lack of trees planted in or around from project proponents that are should be able to deny certification if the project area. unrelated to water quality impacts from any State or Tribal requirements would Some commenters stated that limiting the proposed federally licensed or not be met. As discussed above in the proposed definition of ‘‘water permitted project is inconsistent with section III.E.2.b of this notice, extending quality requirements’’ to exclude State the authority provided by Congress. the scope of review to any State or laws that are not EPA-approved would Some commenters stated that the EPA Tribal law would be inconsistent with preclude conditions based on State- should clarify in the final rule that Congress’s inclusion of the limiting required riparian buffers, erosion and certification conditions must be directly modifier ‘‘appropriate’’ in the phrase sedimentation controls, chloride related to impacts to water quality ‘‘any other appropriate requirement of monitoring, mitigation, fish and wildlife requirements from the project State law,’’ and the Agency is not protection, drinking water protections, proponent’s activity, and not water finalizing the proposed alternative fish ladders, and adaptive management quality concerns caused by other interpretation that would limit the measures. As discussed above, the entities. One commenter stated that the scope of denials to the CWA provisions Agency is finalizing a definition of guiding principle for courts tasked with enumerated in section 401(a). The ‘‘water quality requirements’’ that determining the propriety of section 401 Agency’s interpretation of the scope of removes the condition that State or certification conditions has been certification, including the scope of Tribal law requirements must be ‘‘EPA- whether the condition was designed to denials, strikes a balance among approved.’’ Under the final rule, the directly address water quality effects competing considerations while definition of ‘‘water quality caused by the licensee’s or permittee’s remaining loyal to the text of the CWA. requirements’’ includes ‘‘state or tribal activity, and courts have emphasized Many commenters specifically regulatory requirements for point source that state agencies evaluating requests addressed the appropriate scope of discharges into a water of the United for water quality certifications may not conditions. Some commenters urged the States,’’ and includes State or Tribal consider the effects of activities other EPA not to use a small number of provisions that are more stringent than than those being licensed. This examples of conditions that did not federal requirements. commenter recommended that the EPA directly relate to protecting water One commenter suggested that revise section 121.5(d) of the proposed quality to justify narrowing the scope of instead of limiting section 401 rule to state, ‘‘Any condition must certification conditions. These certification conditions to water quality- directly address a water quality effect commenters provided additional related conditions, the EPA should caused by the particular activity for examples of conditions that certifying consider having each State define the which the applicant is seeking a license authorities have included in reserved authorities under section 401 or permit.’’ The EPA agrees with these certifications, such as building and that it intends to apply in a certification, commenters that certification conditions maintaining fish passages, as well as the types of discharges must be directly related to water quality compensatory mitigation, temporal associated with those State authorities. impacts from the proposed project. restrictions on activities to mitigate The EPA disagrees with this However, the EPA has concluded that hazards or protect sensitive species, pre- commenter’s suggestion, as it would the requirements in section 121.7(d) of construction monitoring and assessment result in a greater patchwork of State the final rule accomplish the of resources, habitat restoration, tree regulations, with potentially every State commenter’s request, and the EPA did planting along waterways, spill establishing a different scope of not modify the final rule to include management plans, stormwater certification and a different range of what EPA believes would be a management plans, and facilitating discharges that may be subject to redundant provision. The EPA is also public access. The EPA appreciates certification in each State. One principal aware of certification conditions that commenters’ providing additional goal of this rulemaking is to provide purport to require project proponents to examples of certification conditions. greater clarity, regulatory certainty, and address pollutants that are not The EPA agrees that in many instances, predictability for the water quality discharged from the construction or each of these examples may be beyond certification process. Finalizing a rule operation of a federally licensed or the scope of certification as articulated like the one suggested by this permitted project. As discussed in this in this final rule. However, there may be commenter would undercut those section, certification conditions must be unique project-specific facts or outcomes significantly. necessary to assure that the discharge circumstances, including the nature of The EPA recognizes that, historically, from a proposed federally licensed or the discharge and applicable water many State and Tribal certification permitted project will comply with quality standards and related designated actions have reflected an appropriately water quality requirements, because this uses, that must inform whether a limited interpretation of the purpose is the extent of authority provided in particular condition is within the scope and scope of section 401. However, as section 401. of certification, as defined in this final discussed above, the Agency is also The Agency proposed a definition for rule. aware that some certifications have ‘‘condition’’ in an attempt to clarify that A few commenters stated that included conditions that may be conditions included in a water quality narrowing States’ and Tribes’ ability to unrelated to water quality, including certification must be within the scope of condition licenses and permits may lead many of the types noted above, such as certification, as defined in this final to more certification denials. The EPA requirements for biking and hiking trails rule. Some commenters supported the disagrees with these commenters, as the to be constructed, one-time and proposed definition of condition and scope of certification in the final rule recurring payments to State agencies for the structure of the proposed rule. Other informs the scope of appropriate improvements or enhancements that are commenters stated that the EPA

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unnecessarily defined ‘‘condition’’ to section 121.7(a) of the final rule within a specified reasonable time not allow for federal review of water quality specifically provides that any action to to exceed 60 days from the date the draft certifications. One commenter stated grant a certification with conditions permit is mailed to the certifying State that the argument that Congress must be within the scope of agency. . . .’’ FERC’s regulations at 18 intended to allow the EPA to define the certification. The scope of certification CFR 5.23(b)(2) provide that ‘‘[a] term ‘‘condition’’ under section 401 extends to the scope of conditions that certifying agency is deemed to have misconstrues the structure of section are appropriate for inclusion in a waived the certification requirements of 401(d). This commenter stated that certification—specifically, that these section 401(a)(1) of the Clean Water Act under the plain language of section conditions must be necessary to assure if the certifying agency has not denied 401(d), States impose ‘‘limitations’’ and that the discharge from a federally or granted certification by one year after ‘‘monitoring requirements’’ in a licensed or permitted activity will the date the certifying agency received certification, and the certification itself comply with water quality a written request for certification.’’ The then becomes ‘‘a condition’’ on the requirements, as defined at section Corps’ regulations at 33 CFR federal permit. This commenter further 121.1(n) of this final rule. 325.2(b)(1)(ii) state that ‘‘[a] waiver may stated that there is no ambiguity in the F. Timeframe for Certification Analysis be explicit, or will be deemed to occur statute, which requires that the entire and Decision if the certifying agency fails or refuses certification is incorporated into the to act on a request for certification federal license or permit. 1. What is the Agency finalizing? within sixty days after receipt of such a The Agency disagrees that it In this final rule, the EPA is request unless the district engineer misinterpreted section 401(d) of the reaffirming that CWA section 401 determines a shorter or longer period is statute and further disagrees with the requires certifying authorities to act on reasonable for the state to act.’’ The suggestion that there is no ambiguity in a request for certification within a Executive Order directed all federal section 401(d).58 The EPA reasonable period of time, which shall agencies with licenses or permits that acknowledges that interpretations other not exceed one year. By establishing an may trigger section 401 certification to than what were presented in the absolute outer bound of one year update their existing regulations to proposed rule could be permissible following receipt of a certification promote consistency across the federal under the statute, if adequately request, Congress signaled that government upon completion of this supported by a reasoned explanation. certifying authorities have the expertise rulemaking to modernize the EPA’s The EPA considered the specific and ability to evaluate potential water certification regulations. interpretation advanced by this quality impacts from even the most Public commenters provided a variety commenter and is not adopting this complex proposals within a reasonable of perspectives about which entity interpretation in the final rule. As a period of time after receipt of a request, should set the reasonable period of time. practical matter, courts that have and in all cases within one year. Under Some commenters agreed with the considered challenges to certification the final rule, federal agencies proposed rule that federal agencies are conditions have routinely focused their determine the reasonable period of time the appropriate entity to determine the review on those specific conditions, for a certifying authority to act on a reasonable period of time, subject to the rather than the entire certification itself. certification request, and the final rule statutory one-year limit. One commenter See PUD No. 1, 511 U.S. at 713–14; establishes procedures for setting, said the federal agencies should set the Deschutes River All. v. Portland Gen. communicating, and (where time period to maximize efficiency, Elec. Co., 331 F. Supp. 3d 1187, 1192, appropriate) extending the reasonable increase timeliness of decision-making, 1199–1209 (D. Or. 2018); Airport period of time. The EPA is also and reduce uncertainty. Some Communities Coal. v. Graves, 280 F. reaffirming that section 401 does not commenters asserted that the reasonable Supp. 2d 1207, 1214–17 (W.D. Wash. include a tolling provision, and the period of time should be set by the 2003). The EPA’s final rule is consistent period of time to act on a certification certifying authority, because they with these courts’ interpretations. For request does not pause or stop once the believe that federal agencies lack these reasons and to promote clarity and certification request has been received. expertise on State environmental and regulatory certainty, the EPA is The final rule provides additional administrative requirements and declining to adopt this particular clarity on what is a ‘‘reasonable period’’ therefore may set a reasonable period of interpretation. However, based on other and how the period of time is time that is incompatible with those enhancements in the final rule, the established. requirements or too short for complex Agency has decided not to finalize a projects. Other commenters asserted definition for ‘‘condition.’’ Together, the 2. Summary of Final Rule Rationale and Public Comment that federal agencies do not have ‘‘scope of certification’’ and ‘‘water authority under section 401 to quality requirements,’’ as well as the a. Reasonable Period of Time determine the reasonable period of time. rule’s language specifying the elements The EPA is finalizing the proposed One commenter asserted that while required in a certification with rule’s provision that federal licensing federal agencies have the authority to conditions, appropriately limit what can and permitting agencies determine the adopt regulations setting a ‘‘reasonable be properly considered a condition reasonable period of time, either time’’ for decisions, citing Millennium under the final rule, such that defining categorically or on a case-by-case basis. Pipeline Co. v. Seggos, 860 F. 3d 696, the term is not necessary. Moreover, Some federal licensing and permitting 700 (D.C. Cir. 2017), the CWA did not agencies have appropriately exercised give federal agencies unfettered 58 The legislative history of the 1972 amendments discretion to set deadlines that prevent does not provide a clear answer on this issue. See their authority to set the reasonable H.R. Rep. No. 91–911, at 124 (1972) (‘‘the effluent period of time through promulgated States and Tribes from exercising their limitations and other limitations and any regulations, including EPA, FERC and substantive authority under section 401, monitoring requirements will become a condition the Corps. EPA’s regulations at 40 CFR citing City of Tacoma v. FERC, 460 F.3d on any Federal license or permit.’’ But see S. Rep. 53, 67 (D.C. Cir. 2006). One commenter No. 92–414, at 69 (1971) (‘‘such a certification 124.53(c)(3) provide that ‘‘the State will becomes an enforceable condition on the Federal be deemed to have waived its right to noted that it is a conflict of interest for license or permit.’’) certify unless that right is exercised the federal agency to determine the

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‘‘reasonable period of time’’ where that CFR 5.23(b)(1)). From a practical and procedure; State agency workload federal agency is both the project standpoint, federal licensing and and resource constraints; substantive proponent and the agency issuing the permitting agencies have decades of State law requirements for license or permit. Other commenters experience in processing applications in environmental review, type of permit, or believed that the EPA should determine accordance with their license and timing of season-dependent field the reasonable period of time in permit programs, and it is reasonable for studies; time to review a certification coordination with the certifying the EPA to conclude that federal request and any subsequent authority. Finally, some commenters agencies would have the necessary supplemental information; time for all stated that a one-year reasonable period knowledge and expertise to establish a stakeholders to provide input on a of time should be provided without any reasonable period of time that is certification request; time for project additional federal agency discretion, appropriate considering the applicable proponents to provide additional which they asserted would increase federal procedures. information; other federal program regulatory certainty and ensure The Agency disagrees with the requirements; and the extent of sufficient time to meet Tribal commenter’s suggestion that there is a potential impact from a discharge. consultation obligations. conflict of interest when the federal Several commenters noted that under The EPA has considered these agency setting the reasonable period of the process set forth in the proposed comments and concluded that it is time is also the project proponent. This rule, the federal agency could be reasonable and appropriate for federal final rule requires federal agencies to required to set the reasonable period of agencies to set the reasonable period of comply with the same requirements, time based on the three factors, but time. The Agency disagrees that including requirements concerning the without receiving the actual certifying authorities should set the reasonable period of time, as other certification request. reasonable period of time and disagrees project proponents when they require a After considering these public that the EPA should set the reasonable federal permit that triggers the comments, the EPA is finalizing three period of time for all certification certification process. factors that federal agencies must requests. The Agency also disagrees that In setting the reasonable period of consider when setting the reasonable certifying authorities should always time for a certification—either on a period of time. In response to have an entire year to act on a project-by-project basis or comments, the second factor has been certification request, as a year may not categorically—this final rule requires modified to require the federal agency to be ‘‘reasonable’’ in all cases, and section federal agencies to consider: consider the nature of any potential 401 does not guarantee one year but 1. The complexity of the proposed discharge. This modification clarifies rather states the action shall be taken project; that, in establishing the reasonable within a reasonable period of time 2. The nature of any potential period of time, federal agencies should which ‘‘shall not exceed one year.’’ 33 discharge; and consider not only the potential for a U.S.C. 1341(a)(1). The statutory 3. The potential need for additional discharge, but also the nature of any language of section 401 provides that a study or evaluation of water quality potential discharge, including (as certification shall be waived if the effects from the discharge. appropriate) the potential volume, certifying authority fails or refuses to act With one exception discussed further extent, or type of discharge associated within the reasonable period of time, below, the EPA is finalizing these with a particular project or particular but the statute is silent on who should factors as proposed. These factors category of license or permit. Consistent set the reasonable period of time. Id. maintain flexibility for federal agencies with the proposal, these factors may be The Agency is authorized to reasonably to consider project-specific or used to establish a reasonable period of interpret the statute (see Chevron, 467 categorical information that should be time on a project-by-project basis or U.S. at 843–44) and concludes that readily available. If certifying categorically. federal licensing and permitting authorities believe more time is Many of the factors that commenters agencies should continue to fill this role necessary than what is established by recommended would be subsumed by as they have done for the past several the federal agency, they may request an one of the factors that the EPA is decades. This interpretation is extension to the reasonable period of finalizing, such as project complexity. consistent with judicial and time as described below. Many of the concerns that commenters administrative precedent 59 and with A federal agency may decide that it is raised about the proposal—for example, federal regulations that were more efficient to establish the that the reasonable period of time does promulgated decades ago through reasonable period of time based on not account for State public notice public notice and comment rulemaking common attributes of a category of procedures—would also be a concern (see, e.g., 33 CFR 325.1(b)(ii) and 18 licenses, permits, or potential under the status quo 1971 certification discharges—rather than on a case-by- regulations. However, over the past few 59 Hoopa Valley Tribe v. FERC, 913 F.3d 1099, case basis. This type of categorical decades, certifying authorities and 1104 (D.C. Cir. 2019) (‘‘Thus, while a full year is approach may be set out through federal agencies have formulated joint the absolute maximum, it does not preclude a rulemaking or other procedures in applications, memoranda of agreement, finding of waiver prior to the passage of a full year. accordance with law. Establishing and other mechanisms to ensure that Indeed, the [EPA]—the agency charged with administering the CWA—generally finds a state’s categorical reasonable periods of time public participation requirements are waiver after only six months. See 40 CFR 121.16.’’); may be more efficient, conserve met within the reasonable period of Constitution Pipeline Company, LLC, 164 FERC P resources, and increase regulatory time. The EPA expects certifying 61029 (F.E.R.C.), 2018 WL 3498274 (2018) (‘‘[T]o transparency. authorities and federal agencies to the extent that Congress left it to federal licensing and permitting agencies, here the Commission, to Some commenters supported the continue these cooperative approaches determine the reasonable period of time for action proposed three factors for determining to facilitate implementation of the final by a state certifying agency, bounded on the outside the reasonable period of time. Other rule. at one year, we have concluded that a period up to commenters recommended that a The EPA received a variety of one year is reasonable.’’). See the Economic Analysis for further discussion on the litigation variety of additional factors be added, comments regarding a potential default posture of the Constitution Pipeline Company, LLC including but not limited to State law reasonable period of time of six months, case. requirements for public participation including conflicting views on whether

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six months is too long or too short, and procedure for adjudicating public website to view categorically- whether a default reasonable period of circumstances where the certifying established reasonable periods of time time would increase or decrease clarity authority disagrees with the reasonable in federal agency regulations), the EPA and regulatory certainty. Some period of time set by the federal agency. supports the development of such commenters asserted that a default One commenter noted there is no procedures so long as they comply with reasonable period of time of six months requirement that the federal agency the requirements in this rule. The EPA would be too short in cases in which explain the chosen time period, making disagrees with the suggestion that a certifying authorities have not received it more difficult to challenge the federal separate appeal process is necessary for all necessary information from project agency’s decision or to petition for more certifying authorities to adjudicate the proponents, or for project proponents time. One commenter said that federal federal agency’s reasonable period of requiring FERC licenses. Another agencies should be required to time, as this final rule provides a commenter stated that without a default communicate the reasonable period of process for the certifying authority to period of time, the rule would introduce time even when agencies have request an extension to the established regulatory uncertainty and result in promulgated time periods categorically reasonable period of time and describes inefficiencies and delays. The Agency by project type in their section 401 clear factors for federal agencies to has considered these comments and is implementing regulations. consider when setting the reasonable finalizing the rule as proposed with no The EPA has considered these period of time in the first instance. default or minimum reasonable period comments and is finalizing as proposed The EPA is clarifying that section 401 does not prohibit a federal agency from of time. The final rule thus provides the process for federal agencies to extending an established reasonable federal licensing and permitting communicate the reasonable period of period of time, provided that the agencies the maximum flexibility to time. The EPA understands that this extended time period is reasonable and develop appropriate procedures for their process may create additional does not exceed one year from receipt. permitting programs as they update administrative burdens on federal Some commenters stated that it would their certification regulations in agencies, given the number of section increase regulatory uncertainty for accordance with the Executive Order. 401 certification requests that are The final rule also clarifies the project proponents if the reasonable submitted each year. However, the process by which federal agencies and period of time could be modified. Agency expects that the benefit of certifying authorities communicate However, most commenters on this clarity and transparency that this regarding the reasonable period of time. issue agreed that the rule should allow A clear understanding of the reasonable additional process will provide for all the flexibility to modify timeframes, and period of time will prevent certifying parties involved in a section 401 many of these commenters agreed that authorities from inadvertently waiving certification process will outweigh any the rule should mirror the statute and their opportunity to certify a request additional burden on federal agencies. maintain the maximum timeframe of and will provide regulatory certainty to The EPA also expects the federal one year. A few commenters suggested the project proponent. As explained in agencies will quickly routinize this that the Agency clarify the process for section III.C of this notice, the Agency process by developing and using forms, modifying the time period, for instance has modified the proposed rule to electronic notifications, or other tools to by requiring specific information to be respond to commenter concerns and is minimize the potential administrative included in an extension request, or by finalizing a requirement that the project burden associated with providing providing federal agencies with a proponent provide the certification written notice of the reasonable period deadline to respond to extension request to the federal agency of time. The EPA does not anticipate requests. Another commenter said the concurrently when it submits the that federal agencies will fail to set, or rule should provide a dispute resolution certification request to the certifying fail to notify certifying authorities of, process in the event the federal agency authority. Under the final rule and the reasonable period of time under this denies the State’s request for an consistent with the proposal, within 15 final rule. The EPA expects federal extension. A few commenters stated that days of receiving the certification agencies to communicate and act in federal agencies should be prohibited request from the project proponent, the good faith and in accordance with this from shortening the reasonable period of federal agency must provide, in writing, final rule regarding the establishment of time, and other commenters asserted the following information to the a reasonable period of time. Consistent that federal agencies, in the spirit of certifying authority: The date of receipt, with the proposal, the final rule cooperative federalism, should consult the applicable reasonable period of time authorizes federal agencies to establish with certifying authorities about when to act on the certification request, and categorical reasonable periods of time shorter timelines may be appropriate. the date upon which waiver will occur for types of licenses or permits, thereby The EPA does not expect reasonable if the certifying authority fails or refuses increasing efficiency and transparency. periods of time to be extended to act. This provision is substantively To provide additional certainty to frequently, but the final rule is intended identical to the one proposed, with certifying authorities and project to provide federal agencies with minor modifications to increase clarity. proponents, the EPA recommends that additional flexibility to account for Public commenters expressed federal agencies promulgate in their unique circumstances that may implementation concerns regarding the updated certification regulations a reasonably require a longer period of process for federal agencies to minimum reasonable period of time that time than was originally established. communicate the reasonable period of may be extended on a case-by-case For such cases, the EPA is finalizing as time to the certifying authority. One basis, so long as it does not exceed one proposed the process by which the commenter believed that the 15-day year from receipt of the certification extended time period should be turnaround time may not be practical, request. To the extent that federal communicated in writing to the and a few commenters suggested that agencies are considering establishing certifying authority and the project there is no accountability for federal additional procedures for proponent to ensure that all parties are agencies that fail to provide the required communicating the reasonable period of aware of the change. This provision is information within 15 days. A few time to certifying authorities (e.g., substantively identical to the proposed commenters recommended adding a directing all project proponents to a provision, with minor modifications to

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increase clarity. The EPA finds it the period of time to act on a the certification process.’’ Letter from unnecessary to include additional certification request does not pause or National Tribal Water Council to David timelines and procedures in the stop for any reason once the P. Ross, Assistant Administrator of the regulatory text because, as many certification request has been received. Office of Water, EPA (Mar. 1, 2019). commenters on the proposed rule One recent court decision held that Given the Hoopa Valley court’s plain pointed out, many certifying authorities withdrawing and resubmitting the same language analysis of the statute and the and federal agencies already have certification request for the purpose of potential water quality impacts from established procedures in place through circumventing the one-year statutory allowing certification decisions to be cooperative agreements or memoranda deadline does not restart the reasonable delayed, and the Agency’s agreement of agreement. The Agency intends to period of time. Hoopa Valley Tribe v. with that analysis, section 121.6(e) of maintain flexibility in the final rule for FERC, 913 F.3d 1099 (D.C. Cir. 2019) the final rule provides: federal agencies and certifying (Hoopa Valley). The EPA agrees with The certifying authority is not authorized authorities to coordinate in this manner the Hoopa Valley court that ‘‘Section to request the project proponent to withdraw and to routinize these processes to 401’s text is clear’’ that one year is the a certification request and is not authorized increase efficiencies. Under the final absolute maximum time permitted for a to take any action to extend the reasonable rule, the reasonable period of time could certification, and that the statute ‘‘does period of time other than specified in section be extended, as there may be project- not preclude a finding of waiver prior to 121.6(d). specific cases when this is appropriate, the passage of a full year.’’ Id. at 1103– This clear statement reflects the plain so long as the period of time remains 04. The court of appeals noted that ‘‘[b]y language of section 401 and, as ‘‘reasonable.’’ Consistent with the shelving water quality certifications, the described above, is supported by proposal, the final rule does not states usurp FERC’s control over legislative history. The Agency expects authorize a reasonable period of time to whether and when a federal license will this clarification to reduce delays and to be shortened once it is established. The issue. Thus, if allowed, the withdrawal- help ensure that certification requests Agency has made edits in final rule and-resubmittal scheme could be used are processed within the reasonable section 121.6 to clarify that the to indefinitely delay federal licensing period of time established by the federal proceedings and undermine FERC’s reasonable period of time can be agency, and at most, within one year extended, but not shortened, once it is jurisdiction to regulate such matters.’’ from receipt of the request. established. This change provides Id. at 1104. The court further observed Some commenters agreed that section flexibility in circumstances where that the legislative history supports its 401 establishes an outer bound of one unique or complex issues may arise, but interpretation of the statute’s plain year for the reasonable period of time. maintains certainty for the certifying language, because ‘‘Congress intended However, other commenters argued that authority that the reasonable period of Section 401 to curb a state’s ‘dalliance the rule should allow flexibility on the time, once established, cannot be made or unreasonable delay.’’’ Id. at 1104–05 timeline beyond one year. Many of these shorter. (emphasis in original). The EPA is reaffirming in this final The Hoopa Valley case raised another commenters argued States should not be rule that the federal agency also important issue: Perpetual delay of limited to one year if they have received determines whether waiver has relicensing efforts (in that case for more inadequate information and if projects occurred. Some commenters asserted than a decade) delays the are complex. One commenter asserted that federal agencies do not have implementation and enforcement of that section 401 allows for a State to authority to determine that waiver has water quality requirements that have ‘‘act on’’ a request within one year occurred. The EPA has considered these been updated and made more stringent without reaching a final decision in that comments and disagrees with them. in the years or decades since the last one year, and the commenter asserted that this interpretation provides a legal Relevant court decisions and the EPA’s relicensing process. See id. at 1101.60 basis to allow extensions exceeding one 1971 certification regulations This concern was also raised in year. recognized the role of the federal agency stakeholder recommendations received Some commenters supported the to determine whether a waiver has during pre-proposal outreach. One proposed provision to the effect that the occurred. See Millennium Pipeline stakeholder specifically cited the delays certifying authority is not authorized to Company, L.L.C., 860 F.3d at 700–01 in the Hoopa Valley case as a ‘‘concrete request the project proponent to (acknowledging that a project proponent example of how the § 401 certification withdraw a request or take other action can ask the federal agency to determine process was being manipulated by a to modify or restart the time period. whether a waiver has occurred). state certification agency to delay Most of these commenters stated that Consistent with the proposal, this final implementation of effective water the proposed rule makes clear the rule clarifies the procedures for a federal quality controls and enhancement allowable time may not exceed the agency to notify a certifying authority measures’’ and that ‘‘allowing the § 401 maximum of one year, and some of and project proponent that a waiver has certification process to be used to these commenters agreed that no tolling occurred. As discussed in section achieve further delays in the re- should be allowed. Some of these III.G.2.d of this notice below and licensing process is in turn an abuse of pursuant to section 121.9 of the final commenters cited the Hoopa Valley rule, if the certifying authority fails or 60 This is a concern shared by the EPA. The case, and one commenter cited the CWA refuses to act before the date specified Agency has taken steps to promote its own legislative history. However, some by the federal agency, the federal agency compliance with CWA deadlines, including acting commenters disagreed with the on State and Tribal water quality standard suggestion that certifying authorities is required to communicate in writing to submittals, because prior delays have created a the certifying authority and the project significant backlog of state submittals awaiting an should be prohibited from coordinating proponent that waiver has occurred. Agency action. Memorandum from David P. Ross, with project proponents to modify or Assistant Administrator of the Office of Water, to restart the reasonable period of time, as b. Tolling Regional Administrators (June 3, 2019). These they asserted this would be contrary to delays and backlogs prevent States and Tribes from Section 401 does not include a tolling timely implementing and enforcing updated well-established practice. Some provision. Consistent with the proposal, programs and standards that could otherwise be commenters stated that a reasonable the EPA concludes in this final rule that improving water quality. period of time longer than one year may

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be warranted for complete information regulatory text section 121.6(e) was also of time begins when a certifying to be submitted and for accommodating edited from the proposal so as to authority receives a certification request adequate State review and certification increase clarity and to remove the term as defined in the final rule, and it ends of projects. Most of these commenters ‘‘restarting.’’ when the certifying authority takes asserted that withdrawal and Many commenters asked for action to grant, grant with conditions, resubmittal to toll the timeline is the clarification on a project proponent’s deny, or waive. The Agency is clarifying best way to manage unforeseen issues or ability to withdraw and resubmit a that the reasonable period of time does information gaps. A few of these request, noting that project proponents not continue to run after a certification commenters stated that the words ‘‘for often voluntarily withdraw and decision is issued regardless of whether the purpose of’’ in proposed rule section resubmit applications. Some there is time remaining in the 121.4(f) (‘‘[t]he certifying authority is commenters requested that the Agency ‘‘reasonable period of time.’’ As not authorized to request the project clarify what action a certifying authority explained in section III.L of this notice, proponent to withdraw a certification should take when a project proponent a certifying authority cannot modify the request or to take any other action for withdraws a request. In response, the certification after issuing a decision to the purpose of modifying or restarting Agency notes that nothing in the final the federal agency. the established reasonable period of rule precludes project proponents from The EPA recognizes that there may be time’’ (emphasis added)) creates a voluntarily withdrawing requests of project-specific situations when the subjective element depending on the their own accord. However, to prevent reasonable period of time may be certifying authority’s intent, and would scenarios like the Hoopa Valley case, extended (not to exceed one year) to create ambiguity in the rule if finalized and to address the EPA’s policy concern account for project complexities or the as proposed. about section 401 delays, the Agency need to gather additional information. expects that project proponents will Procedures for extending the reasonable The Agency understands that in cases rarely voluntarily withdraw requests for period of time are explained above and where the certifying authority and certification. The EPA expects that such included in the final rule. As discussed project proponent are working withdrawals will take place only if the above, the EPA expects voluntary collaboratively and in good faith, it may project plans have been modified such withdrawals of certification requests to be desirable to allow the certification that a new certification request is occur only when the project has process to extend beyond the reasonable required, or if the project is no longer materially changed, as described above, period of time and beyond the one-year planned. If a project proponent or is no longer planned. In such a case, statutory deadline. However, the final withdraws a certification request a new request would initiate a new rule reflects the statutory language that because the project is no longer being reasonable period of time and would not the reasonable period of time may not planned or if the project materially ‘‘restart’’ the clock from a prior exceed one year, 33 U.S.C. 1341(a)(1), changes from what was originally withdrawn request for certification. The and the Hoopa Valley holding that proposed, as described above, the EPA would not expect such a new certifying authorities and project certifying authority no longer has an request to be identical to a previously proponents lack discretion under the obligation to act on that request within withdrawn request for certification. CWA to engage in a coordinated effort the reasonable period of time. In all Many commenters noted that given to extend the reasonable period of time. cases, project proponent withdrawals the proposed rule’s shortened Additionally, the Agency disagrees with would not result in tolling or pausing timeframes, limitations on States and the commenter’s assertion that the term the clock, but rather any resubmitted Tribes collecting additional information, ‘‘act on’’ provides a legal basis to extend request would be subject to the pre- and provisions allowing the reasonable the reasonable period of time beyond filing meeting request requirement. period of time to begin prior to ‘‘an one year. As discussed in section III.D After receipt by the certifying authority, application being complete,’’ States may of this notice, a certifying authority may the new request would initiate a new decide to deny certification rather than take one of four actions on a reasonable period of time as determined risking the possibility that a federal certification request: Grant certification, by the federal agency. agency would determine that the State grant certification with conditions, deny Some commenters supported stopping waived certification. These commenters certification, or expressly waive the clock when project proponents are noted that the process of successive certification. If a certifying authority not responsive to requests for additional State denials of certification and the fails or refuses to take one of these information, or do not provide adequate resulting litigation could result in actions within the reasonable period of information to the certifying authority. delaying projects and defeating the time, the CWA provides that the Some commenters requested intent of the proposed rule to promote certifying authority will be deemed to clarification on whether withdrawn efficiency and certainty. have waived the certification requests that are resubmitted would The Agency disagrees with these requirement. 33 U.S.C. 1341(a)(1). The restart a paused clock, or completely commenters. Neither the proposal nor Agency agrees with public commenters restart the reasonable period of time. the final rule shortened the timeframe that it would increase clarity to remove Commenters also asked for clarification for certification. The statute requires the words ‘‘for the purpose of’’ in on whether the contents of the request, action on a certification request within proposed rule section 121.4(f), and the i.e., whether it is substantially the same a reasonable period of time not to final rule has been modified or a different request, would affect the exceed one year. The proposed rule and accordingly. The Agency has also restarting of the clock. this final rule provide exactly the same clarified in final rule section 121.6(e) The Agency is reaffirming in this final timeframe as the statute provides. To that the certifying authority may take rule that the clock does not toll for any the extent commenters view the action to extend the reasonable period reason. The Agency disagrees that the clarifications in the rule that the statute of time only in accordance with section clock should toll while project does not authorize tolling or a 121.6(d). Because the final rule does not proponents gather additional ‘‘withdrawal and resubmit’’ scheme as contemplate that the reasonable period information or for any other reason, as ‘‘shortening the timeframe,’’ the Agency of time can be tolled or ‘‘restarted,’’ as there is no statutory basis for tolling. As disagrees because these mechanisms described below in this section, final described above, the reasonable period that have previously been used to

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extend the reasonable period of time are the reasonable period of time, and must Likewise, if a certification condition is not authorized by the statute. Similarly, otherwise be in accordance with section not supported by the required neither the proposal nor this final rule 401 of the CWA. Alternatively, a information, the condition will be limits the ability of a certifying certifying authority may waive the considered waived under the final rule. authority to collect additional certification requirement, whether Under the final rule, a waived condition information from a project proponent. expressly or by failing to act. The does not result in waiver of the entire The final rule provides an objective list Agency is finalizing the requirement certification. of information that a project proponent that any action on a certification request Additionally, if a certifying authority must provide to a certifying authority to must be in writing and must clearly fails to follow the procedural start the reasonable period of time. As state whether the certifying authority requirements of section 401, such as the described above, this is intended to has chosen to grant, grant with public notice provisions, or fails to provide transparency and predictability conditions, or deny certification. This complete its review within the so all parties understand what final rule also requires that any express reasonable period of time, the information is necessary to start the waiver of the certification requirement certification will be deemed waived. reasonable period of time. The Agency by the certifying authority be in writing. 2. Summary of Final Rule Rationale and Under the final rule, a certification encourages the parties to engage Public Comments throughout the certification process to must include certain supporting help ensure the certifying authority has information for each condition, The CWA does not define the term the information needed to act on the including, at a minimum, a statement ‘‘certification’’ or offer a definitive list of certification request. explaining why the condition is its contents or elements. Section 304(h) Additionally, the final rule includes a necessary to assure that the discharge of the CWA requires the EPA to number of provisions that should from the proposed project will comply promulgate factors which must be reduce the need for certifying with water quality requirements, and a provided in any section 401 authorities to deny certification based citation to the federal, State, or Tribal certification, and under section 501(a) on insufficient information. Section III.B law that authorizes the condition. The the EPA may reasonably interpret the of this notice describes a mandatory pre- final rule also includes slightly different statute to add content to those terms. filing meeting request, which will allow information requirements to support See 33 U.S.C. 1251(d); 33 U.S.C. project proponents and certifying conditions in a certification for issuance 1361(a); Chevron, 467 U.S. at 843–44. authorities to begin early conversations of a general license or permit. These The EPA’s 1971 certification regulations about proposed projects prior to the requirements are described in section included certification requirements. In start of the reasonable period of time. III.M below. The EPA had proposed also this final rule, EPA is updating those Additionally, section III.C of this notice to require a statement of whether and to requirements for each type of discusses factors that a project what extent a less stringent condition certification action and is more fully proponent should consider in could satisfy applicable water quality addressing the effects of those actions. requirements. The EPA is not including determining when to submit a a. Grant certification request, as the timing of that provision in the final rule. Granting a section 401 certification request submission affects the In circumstances where certification demonstrates that the certifying information that may be available for is denied, the EPA is finalizing the authority has concluded that the certifying authorities to make timely requirement that the written notification of denial state the reasons for denial, potential discharge into waters of the decisions. Section III.C identifies including the specific water quality United States from the proposed activity opportunities for federal licensing and requirements with which the discharge will be consistent with water quality permitting agencies to establish by rule will not comply; a statement explaining requirements. Granting certification an appropriate point in the federal why the discharge will not comply with allows the federal agency to proceed licensing or permitting process when a the identified water quality with issuing the license or permit. project proponent should request requirements; and if the denial is due to Consistent with the proposal, the final certification. Finally, this final rule insufficient information, the denial rule requires all certification grants, establishes certain criteria that the EPA must describe the specific water quality with or without conditions, to be in as a certifying authority must follow data or information, if any, that would writing and to include a written when making additional information be needed to assure that the discharge statement that the discharge from the requests (e.g., only requesting from the proposed project will comply proposed federally licensed or information that is related to the with water quality requirements. The permitted project will comply with discharge; only requesting information Agency has made minor editorial water quality requirements, as defined that can be collected within the changes to these provisions in the final at section 121.1(n) of the final rule. The reasonable period of time). The Agency rule to increase clarity, but the final rule Agency has concluded that this is a encourages all certifying authorities to provisions retain the same meaning as straightforward requirement and one consider whether similar criteria would the proposed rule provisions. The final that promotes transparency for the help clarify expectations when rule also includes slightly different public. certifying authorities seek additional information requirements to support a information during the certification denial of a certification for issuance of b. Grant With Conditions process. a general license or permit. These If the certifying authority determines G. Contents and Effects of Certification requirements are described in section that the potential discharge from a III.M below. proposed activity would be consistent 1. What is the Agency finalizing? Under the final rule, if a certification with water quality requirements only if Under the final rule, any action by the or denial does not include the certain conditions are met, the authority certifying authority to grant, grant with information requirements described may include such conditions in its conditions, or deny a certification further below, the certification or the certification. The EPA proposed that request must be within the scope of denial will be considered waived by the three elements be included in a certification, must be completed within federal licensing or permitting agency. certification to support each condition.

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The Agency is finalizing two of those quality requirements. The EPA has conditions must be included in a federal elements. considered these comments. Under the license or permit. Several appellate Some commenters supported the final rule, certifying authorities will not courts have analyzed the plain language proposed requirement for certifying have to identify whether and to what of the CWA and concluded that the Act authorities to cite applicable State or extent a less stringent condition could ‘‘leaves no room for interpretation’’ and Tribal law and to provide an satisfy applicable water quality that ‘‘state conditions must be’’ explanation of the necessity for each requirements. As described in the included in the federal license or condition. Some commenters agreed preamble for the proposed rule, this permit. Sierra Club v. U.S. Army Corps that these requirements would provide provision is included in the EPA’s of Engineers, 909 F.3d 635, 645 (4th Cir. transparency, and assist the federal existing certification regulations for the 2018) (emphasis in original); see also license or permitting agency with NPDES permit program (see 40 CFR U.S. Dep’t of Interior v. FERC, 952 F.2d implementation and enforcement. Other 124.53(e)(3)), but the EPA agrees with 538, 548 (D.C. Cir. 1992) (‘‘FERC may commenters asserted that these the commenters that asserted that it may not alter or reject conditions imposed by requirements would be overly be difficult to provide an explanation as the states through section 401 burdensome for certifying authorities. to why a condition is necessary and to certificates.’’); Am. Rivers, Inc. v. FERC, Some commenters asserted that also identify a less stringent condition 129 F.3d 99, 107 (2d Cir. 1997) certifying authorities already generally that could satisfy water quality (recognizing the ‘‘unequivocal’’ and cite the applicable State laws and requirements. ‘‘mandatory’’ language of section regulations on which they base their The EPA disagrees with the 1341(d)); Snoqualmie Indian Tribe v. conditions, and other commenters said suggestion that the information FERC, 545 F.3d 1207, 1218 (9th Cir. that these requirements would create requirements for conditions in section 2008) (collecting cases). The EPA new obligations for certifying 121.5(d)(1) and (2) of the final rule acknowledges commenters who asserted authorities. Other commenters would be burdensome for certifying that federal agencies may not confirmed that the value of including authorities. Certifying authorities consistently enforce certification this information in every certification, should already be generating this type of conditions, and also acknowledges that in terms of transparency and regulatory information to build complete and federal agencies can apply discretion in certainty, will far outweigh the minimal legally defensible administrative records enforcement decisions. However, additional administrative burden of to support their certification actions. As providing a citation to the legal including this information in a a general matter, if a certifying authority authority underpinning a certification certification. The EPA agrees that determines that one or more conditions condition is one way to make it easier requiring an explanation for the are necessary for a section 401 for federal agencies to enforce these necessity of the condition and a citation certification, the certifying authority conditions. Federal agencies during pre- to the underlying State, Tribal, or should clearly understand and articulate and post-proposal engagement federal laws, as appropriate, will why it is necessary and should identify acknowledged that this information will promote transparency and consistency the legal authority for requiring such help them understand how best to and is finalizing these requirements. conditions. Including this information implement and enforce certification The EPA intends this provision to in the certification itself provides conditions. In addition, including this require citation to the specific State or transparency for the project proponent, information in each certification will Tribal statute or regulation or the the federal licensing and permitting provide transparency for the overall specific CWA provision, e.g., CWA agency, and the public at large. For certification process and allow the section 301(b)(1)(C), that authorizes the these reasons, the EPA has determined project proponent to understand the condition, and that general citations to that these are appropriate requirements, legal basis for each condition and to CWA section 401 or other general and they are included in the final rule. assess whether a condition is within the authorization or policy provisions in During pre-proposal stakeholder statute’s lawful scope and what recourse federal, State, or Tribal law would be engagement, the EPA also heard from may be available to challenge it in an insufficient to satisfy the proposed federal agencies that, because several appropriate court of competent requirement. court decisions have concluded that Some commenters also supported the such agencies do not have authority to jurisdiction. Overall, the EPA concludes proposed requirement for certifying ‘‘review and reject the substance of a that the benefits of providing this authorities to identify whether a less State certification or the conditions information will significantly outweigh stringent condition could satisfy contained therein,’’ Am. Rivers, Inc., any additional administrative burden applicable water quality requirements. 129 F.3d at 106, non-water quality- that certifying authorities may incur However, most commenters asserted related conditions are often included in because of these new requirements. that this requirement would be federal licenses and permits. Once One commenter asserted that the burdensome for certifying authorities, included in the federal license or language in proposed section 121.8(b) suggesting that States and Tribes would permit, federal agencies have found it should be changed from ‘‘[t]he license need to conduct two detailed analyses challenging to implement and enforce or permit must clearly identify any for the certification: One to establish these non-water quality-related conditions that are based on the appropriate conditions, and another to conditions. Additionally, stakeholders certification’’ to ‘‘[t]he license or permit evaluate whether a less stringent in pre-proposal engagement and in must clearly identify any conditions condition would be sufficient. A public comments expressed concern that are from the certification.’’ This commenter suggested that proposed that federal agencies do not always commenter asserted that the conditions section 121.5(d)(1) may conflict with enforce the certification conditions cannot be based on the certification proposed section 121.5(d)(3). This incorporated in their federal licenses or because federal agencies do not have commenter recommended replacing permits. authority to develop their own section 121.5(d)(3) with a requirement EPA agrees that it is important for certification conditions or to modify a that the certifying authority include federal agencies to have a clear condition in a certification prior to only the least stringent conditions understanding of the basis for incorporating it into the federal permit. necessary to satisfy applicable water certification conditions, because The EPA has made this change in

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section 121.10 of the final rule for quality requirements. A few of these from the proposed project will comply clarity and to reaffirm that if a condition commenters recommended that with water quality requirements,’’ the meets the procedural requirements of insufficient information should be a final rule reaffirms and clarifies that section 401 and includes the elements basis for denial. insufficient information about the listed in 121.7(d) of the final rule, the As a general matter, the EPA disagrees proposed project can be a basis for a condition must be incorporated into the with the suggestion that including this certification denial. If the certifying federal license or permit in its entirety, information in a denial would be overly authority determines that there is no as drafted by the certifying authority. burdensome for certifying authorities. specific data or information that would Consistent with the proposal, under the Indeed, a number of States asserted in allow the certifying authority to final rule, deficient certification public comments that the primary determine that the discharge will conditions do not invalidate the entire reason why certifications cannot be comply with water quality certification, nor do they invalidate the issued within the reasonable period of requirements, it should indicate as such remaining conditions in the time is that project proponents have not and provide the basis for the certification. As discussed below, the provided sufficient information or a determination in its written decision to Agency has clarified in the final rule ‘‘complete’’ certification request. If this deny certification. that conditions that do not meet these is the case, certifying authorities should As noted in the preamble to the requirements will be deemed waived. be able to identify what information is proposed rule, the EPA is aware that lacking that precludes a determination some certifying authorities have c. Deny that the project will comply with water requested ‘‘additional information’’ in A certifying authority may choose to quality requirements, as the term is the form of multi-year environmental deny certification if it is unable to defined in the final rule. Clearly investigations and studies, including certify that the discharge from a establishing a record to support the completion of a NEPA review, before proposed project would be consistent basis for a denial should already be the certifying authority would act on a with applicable water quality done as a matter of course to establish certification request. As discussed in requirements. If a certification is denied, a complete defensible administrative section III.H of this notice, the final rule the federal agency may not issue a record for the certifying authority’s explicitly prohibits the EPA from license or permit for the proposed action. Further, any denial should be requesting additional information that project. Id. at 1341(a). Consistent with informed by the record before the cannot be generated within the the proposal, the final rule requires certifying authority and should be reasonable period of time. The rationale certification denials to be made in issued with information sufficient to for this prohibition applies to all writing and to include three elements to allow the project proponent to certifying authorities; the Agency support certification denials. The understand the basis for denial and have believes that such requests for Agency has made minor editorial an opportunity to modify the project or additional information, regardless of changes to these provisions in the final to provide new or additional which certifying authority generates rule to increase clarity, but the final rule information in a new certification such requests, would be contrary to the provisions retain the same meaning as request. plain language of the statute, which the proposed rule provisions. The EPA is finalizing the requirement requires certifying authorities to act on Some commenters agreed with the that a certification denial be in writing a request within a reasonable period of proposal to require certain information and include three elements to support time that does not exceed one year. in a certification denial. One commenter the denial. The required elements will While additional information requests asserted that when preparing denials, it lead to more transparent decision- may be a necessary part of the would be helpful for certifying making and a more complete record of certification process, such requests may authorities to specify water quality the administrative action. The final not result in extending the period of requirements with which the proposed rule’s requirements may also facilitate time beyond which the CWA requires project will not comply, as this would discussions between certifying certifying authorities to act. assist federal agencies with their duty to authorities and project proponents determine whether a section 401 about what may be necessary to obtain d. Waiver certification facially satisfies the a certification should the project When a certifying authority waives requirements of section 401. Another proponent submit a new certification the requirement for a certification, commenter recommended that the final request in the future. A certifying under this final rule the federal agency rule also require a statement that there authority’s explanation of why a may proceed to issue the license or is no certification condition which discharge from a proposed project will permit in accordance with its would prevent noncompliance with not comply with relevant water quality implementing regulations. A certifying water quality requirements. requirements will also assist reviewing authority may waive expressly by Other commenters opposed the courts in understanding whether the issuing a written statement that it is proposed requirement that certification denial is appropriately based on the waiving certification, or implicitly denials include ‘‘the specific water scope of certification discussed in waive by failing or refusing to act. quality data or information, if any, that section III.E of this notice. Waiver may occur due to a failure or would be needed to assure that the Some commenters asserted that the refusal to act in accordance with the discharge from the proposed project proposed rule would prohibit certifying procedural requirements of section 401 complies with water quality authorities from denying certification or within the reasonable period of time requirements.’’ These commenters based on a lack of information sufficient (see section III.F of this notice), or by asserted that this requirement was to grant certification. The EPA disagrees failing or refusing to provide vague, unnecessary, and burdensome with these commenters. Indeed, by information required to support and further asserted that it would requiring that ‘‘if the denial is due to certifications (section 121.7(c) of the improperly place a new burden on insufficient information, the denial final rule) or denials (section 121.7(e) of certifying authorities that should be must describe the specific water quality the final rule). A condition may also be borne by project proponents to show data or information, if any, that would waived by failing or refusing to provide why their project complies with water be needed to assure that the discharge information required to support

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certification conditions (section 121.7(d) ii. Implicit Waiver stated that allowing the federal agency of the final rule). The plain language of section to review a certification denial as a failure to act is unreasonable and i. Explicit Waiver 401(a)(1) provides that the certification requirement is waived when a certifying essentially grants the federal Under the final rule, a certifying authority ‘‘fails or refuses to act on a government veto power over State authority may waive expressly by request for certification, within a action. issuing a written statement that it is reasonable period of time (which shall The EPA disagrees with commenters waiving the requirement for not exceed one year).’’ 33 U.S.C. who asserted that federal agencies certification. Some commenters 1341(a)(1). The Agency proposed to cannot review certifications. As supported allowing certifying define ‘‘fails or refuses to act’’ with the discussed below, some courts have authorities to explicitly waive intention of providing greater clarity for concluded that federal agencies have an certification. One commenter observed project proponents, certifying affirmative obligation to determine that doing so could allow the federal authorities, and federal agencies about whether a certifying authority has permitting authority to proceed more when an implicit or constructive waiver complied with requirements related to a quickly with issuing a license or permit could occur. The Agency is not section 401 certification. See City of if it need not wait until the end of the finalizing the proposed definition of Tacoma v. FERC, 460 F.3d 53, 67–68 reasonable period of time. Several ‘‘fails or refuses to act’’ and is instead (D.C. Cir. 2006); Keating v. FERC, 927 commenters asserted that the statute providing additional clarification in the F.2d 616, 622–623, 625 (D.C. Cir. 1991). does not provide for express waiver. A final rule about specific procedural The final rule affirms that it is the few other commenters stated that failures that could trigger a federal responsibility of the federal agency to certifying authorities should be required agency to determine that waiver has facially review certifications to ensure to provide a detailed statement occurred. that certifying authorities have explaining their reasoning for waiving Under the proposed rule, waiver complied with the procedural certification. would occur if the certifying authority requirements of section 401. If a federal The EPA has determined that, actually or constructively failed or agency, in its review, determines that a although the statute does not explicitly refused to act within the scope of certifying authority failed or refused to provide for express or affirmative certification or within the reasonable comply with the procedural waiver, providing this opportunity in period of time. The proposed rule requirements of the Act, including the the final rule is not inconsistent with a preamble explained that the phrase procedural requirements of this final certifying authority’s ability to waive ‘‘fails or refuses to act’’ lends itself to at rule, the certification action, whether it through failure or refusal. See EDF v. least two interpretations. Under one is a grant, grant with conditions, or Alexander, 501 F. Supp. 742, 771 (N.D. interpretation, a certifying authority that denial, will be waived. Miss. 1980) (‘‘We do not interpret [the takes no action, or refuses to take action, After considering public comments Act] to mean that affirmative waivers has waived certification. Under an and other enhancements in this final are not allowed. Such a construction alternative interpretation, a certifying rule, the Agency is not finalizing the would be illogical and inconsistent with authority that takes action beyond the definition of ‘‘fail or refuse to act.’’ The the purpose of this legislation.’’). The scope of section 401 has failed or Agency concludes that the key EPA also agrees with the commenters refused to act in a way Congress ambiguous term in this statutory phrase who stated that allowing explicit intended and has waived certification. is ‘‘to act’’ and reasonably interprets this waivers may create efficiencies in The proposed definition was intended term to mean not just any act or action, circumstances where the certifying to resolve this ambiguity in the statute. but an act or action that is ‘‘in authority knows early in the process Some commenters supported the conformance with applicable statutes that it will waive. The EPA is not proposed definition of ‘‘fail or refuse to and regulations.’’ The final rule requiring certifying authorities to act,’’ including the implicit or provides a clear and unambiguous list of provide a detailed statement explaining constructive waiver provision. A few actions that are not in conformance with their reasoning for waiving, as the commenters cited City of Tacoma v. section 401 and that therefore amount to Agency recognizes certifying authorities FERC, 460 F.3d 53 (D.C. Cir. 2006), in waiver. The clarity in the final rule may waive for a variety of reasons. support of the proposed rule, and these provides certifying authorities with Consistent with the proposal, the final commenters agreed that it would be sufficient notice that all actions on rule provides that a certifying authority appropriate for federal agencies to certification requests must be taken in may expressly waive by providing facially review certifications. Some of accordance with the procedural written notification of waiver to the these commenters said that this requirements of the statute and this final project proponent and federal agency. approach is not supported by the text of the statute or by congressional intent. An express or affirmative waiver does of congressional intent. The history quoted by these Many commenters asserted that the commenters (H.R. Rep. No. 92–911, at 121–22 not reflect a determination that the legislative history of the waiver (1972)) says both that a failure or refusal amounts discharge will comply with water to waiver and that a refusal must be addressed in provision makes clear that it was quality requirements. Instead, an a State court challenge brought by the project intended only to prevent a State’s sheer express or affirmative waiver indicates proponent. ‘‘In such situations, where there is inactivity. One of these commenters conflicting legislative history and ‘the statute is that the certifying authority has chosen noted that the legislative history silent or ambiguous with respect to the specific not to act on a certification request. The issue,’ our [the court’s] role is to determine acknowledges that the waiver provision EPA agrees with the commenter who ‘whether the agency’s answer is based on a cannot protect against arbitrary State noted that express or affirmative waiver permissible construction of the statute.’’’ Smriko v. agency action and that the courts are the Ashcroft, 387 F.3d 279, 288 (3d Cir. 2004) (quoting enables the federal agency to proceed forum to challenge a State’s refusal to Chevron); United States v. Deardorff, 343 F. Supp. with issuing a license or permit where 1033, 1037–38 (S.D.N.Y 1971) (the canon of give a certification.61 Some commenters the certifying authority has stated it statutory interpretation that ‘‘legislative history not be used to interpret a statute that is clear and does not intend to act, thereby avoiding 61 The EPA observes that some legislative history unambiguous on its face . . . is particularly apposite the need to wait for the reasonable related to section 401 is internally inconsistent and where the legislative history is itself somewhat period of time to lapse. should not be relied upon as a definitive statement ambiguous.’’).

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rule. Accordingly, the Agency has comments and relevant court decisions commenters stated that allowing federal decided that a separate definition of and is retaining in the final rule the agencies to review and reject ‘‘fail or refuse to act’’ is not necessary. requirement that federal agencies review certifications, conditions, and denials Treatment of procedural deficiencies as certification actions for compliance with would violate the rights of States and waivers is consistent with the EPA’s the procedural requirements of section Tribes. Some commenters stated that existing regulations for the NPDES 401, including procedural requirements section 401(a)(1), which provides that program. See 40 CFR 124.53(e)(2) in this final rule. However, the final rule ‘‘[n]o license or permit shall be granted (providing that for certification on a does not require federal agencies to if certification has been denied,’’ draft permit, ‘‘[f]ailure to provide such substantively evaluate or determine prohibits the federal government from citation waives the right to certify with whether a certification action was taken vetoing denials. Some commenters respect to that condition’’). within the scope of certification. As a stated that the EPA did not provide any The waiver provision in section 121.9 general matter, federal agencies may not legal support from the CWA or case law of the final rule has been expanded to readily possess the expertise or detailed for its proposed approach of allowing provide additional clarity on the knowledge concerning water quality federal review of certifications, circumstances that amount to a failure and State or Tribal law matters that conditions, and denials. or refusal to act. As discussed in section would be necessary to make such The Agency has made modifications III.G.2.e of this notice, a federal agency substantive determinations. The EPA in the final rule text to clarify that must determine whether waiver has has determined that other provisions of federal agency review of certifications, occurred, either expressly or implicitly this final rule, such as the definitions of conditions, and denials is procedural in through a failure or refusal to act. ‘‘water quality requirements,’’ nature and does not extend to Section 401 provides that certifying ‘‘discharge,’’ and ‘‘certification,’’ and substantive evaluations. The EPA’s final authorities may take one of four possible the information requirements for regulatory text at sections 121.8 (Effect actions on a certification request: Grant, certification conditions and denials of denial of certification), 121.9 grant with conditions, deny, or waive. listed in section 121.7(d) and section (Waiver), and 121.10 (Incorporation of As long as a certifying authority takes 121.7(e), will help ensure that certifying certification conditions into the license one of these four actions within the authorities have the information and or permit) contemplate that the federal reasonable period of time and in necessary tools to act on a certification licensing or permitting agency will accordance with the procedural request within the scope of certification review certifications only to ensure that requirements of the Act and this final as provided in this rule. The Agency is certifying authorities have included rule, the certifying authority will have not finalizing the provisions in section certain required elements and acted on the certification request. 121.6(c) and section 121.8(a)(1)–(2) of completed certain procedural aspects of However, section 401 provides that the proposed rule. a section 401 certification. Under the where a certifying authority ‘‘fails or final rule, federal agencies are required refuses’’ to act on a certification request, i. Federal Agency Procedural Review to determine whether certification certification shall be waived. 33 U.S.C. The final rule requires federal denials include the three elements listed 1341(a)(1). Under the final rule, a agencies to determine whether a in section 121.7(e). If certification certifying authority waives certification certifying authority’s certification, denials do not include these three if it fails or refuses to act on a certification condition, or denial elements, the certifying authority has certification request in accordance with includes the information requirements ‘‘fail[ed] or refuse[d] to act’’ (as the procedural requirements of section in sections 121.7(c), 121.7(d), or 121.7(e) explained in section III.G.2.d of this 401 and this final rule, including but of the final rule. This federal agency notice) and therefore has waived not limited to issuing public notice, review is entirely procedural in nature certification. Similarly, federal agencies acting within the reasonable period of and does not require any specific are required to determine whether time, providing certification for projects expertise or knowledge in water quality certification conditions include the two that are within their jurisdiction, or State or Tribal law. Under the final elements listed in section 121.7(d) of the providing certification decisions in rule, the federal agency’s review is final rule. If the certification conditions writing, and including the information limited to determining whether the do not satisfy the requirements by required to support a certification or certification action was taken in listing these two elements, the certifying denial. The final rule also provides that accordance with procedural authority has ‘‘fail[ed] or refuse[d] to a certification condition may be waived requirements and whether the act’’ and will waive that deficient if the certifying authority fails or refuses certification, condition, or denial certification condition. to provide information required in includes all of the required information. In delineating such a role for federal section 121.7(d). Under the final rule, Federal agency review under the final licensing or permitting agencies, the deficient conditions are severable from rule does not include a substantive EPA has interpreted the statute the certification. In other words, waiver evaluation of the sufficiency of that reasonably and appropriately. In City of of a specific certification condition does information. Tacoma, Washington v. FERC, the Court not waive the entire certification. A few commenters supported the of Appeals for the D.C. Circuit noted proposed requirement that federal that ‘‘[i]f the question regarding the e. Federal Agency Review of agencies substantively review water state’s section 401 certification is not Certifications quality certifications and asserted that the application of state water quality The proposed rule would have such reviews would bring clarity and standards but compliance with the required federal agencies to review a certainty to the water quality terms of section 401, then [the federal certification action to determine certification process. These commenters agency] must address it. This whether it was issued in accordance also supported the proposed authority conclusion is evident from the plain with the procedural requirements of the for federal agencies to determine that language of section 401: ‘No license or Act and determine whether the action constructive waiver occurred for permit shall be granted until the was taken within the ‘‘scope of certifications, conditions, and denials certification required by this section has certification’’ as provided in the rule. that failed to comply with procedural been obtained or has been waived.’ ’’ The EPA has considered public requirements of the rule. Some 460 F.3d at 67–68 (citing 33 U.S.C.

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1341(a)(1)) (emphasis in original). The determine whether certifications, procedural requirements set forth in court went on to explain that even conditions, and denials are within the section 401, citing City of Tacoma, though the federal agency did not need ‘‘scope of certification,’’ as articulated in Wash. v. FERC, 460 F.3d 53 (D.C. Cir. to ‘‘inquire into every nuance of the this final rule. The final rule does not 2006); Alcoa Power Generating Inc. v. state law proceeding . . . it [did] require include this additional substantive FERC, 643 F.3d 963 (D.C. Cir. 2011); [the federal agency] at least to confirm federal agency review requirement. Keating v. FERC, 927 F.2d 616 (D.C. Cir. that the state has facially satisfied the A number of commenters supported 1991). A few commenters stated that a express requirements of section 401.’’ the proposed language that would allow federal agency’s scope of review would Id. at 68; see also Hoopa Valley Tribe v. a federal agency to set aside certification lead to more confusion and litigation FERC, 913 F.3d 1099, 1105 (D.C. Cir. conditions or denials that are not within and would make the certification 2019) (‘‘had FERC properly interpreted the ‘‘scope of certification.’’ Some of process more time consuming. Section 401 and found waiver when it these commenters agreed that The Agency has considered this first manifested more than a decade ago, conditions should not be included in diverse range of opinions. For the decommissioning of the Project might licenses or permits if they do not meet reasons explained above, the Agency very well be underway’’); Airport the definition of ‘‘water quality has concluded that under the final rule, Communities Coalition v. Graves, 280 F. requirements’’ under the final rule. One federal agencies have an affirmative Supp.2d 1207, 1217 (W.D. Wash. 2003) of these commenters stated that federal obligation to review certifications to (holding that the Army Corps had agency review of certifications would ensure that certifying authorities have discretion not to incorporate untimely allow issues of scope to be resolved complied with procedural requirements certification conditions). expeditiously by the federal agency and have included the required Some commenters stated that through the federal licensing or information for certifications, allowing federal review of water quality permitting process, rather than by conditions, and denials. But the final certifications would ignore the fact that forcing the applicant to challenge the rule does not authorize federal agencies the States and Tribes are the experts on certification decision through a separate to substantively review certifications or their water resources and know what is administrative or judicial appeal conditions to determine whether they necessary to assure that the water process, which could take months or are within the scope of certification. The quality standards passed under State years to resolve. The commenter also EPA disagrees with commenters who and Tribal law are met. Another asserted that the proposal would allow assert that section 401(d) commenter requested clarification about the federal agency to protect the unambiguously requires one approach whether the EPA would provide any integrity of its licensing or permitting or another. As described throughout the assistance or guidance to federal process by rejecting conditions that proposed and final rule preambles, there agencies as they review certification exceed the scope of section 401 even if are widely varying views and denials and asked for clarification about the applicant chooses not to challenge interpretations of section 401, and how the EPA would ensure consistency the conditions. Another commenter relevant court decisions reflect these and reliability across such decisions. asserted that the federal agency has an disparate views and interpretations. The As discussed below, the final rule obligation to determine that a final rule provides a framework for does not require the federal agency to certification decision ‘‘complies with section 401 water quality certifications make a substantive inquiry into the the terms of section 401,’’ and that this that is reasonable, is supported by the sufficiency of the information provided obligation is supported by case law. The language of the CWA, and will provide in support of a certification, condition, commenter maintained that this greater clarity and regulatory certainty. or a denial. Rather, the final rule obligation logically also includes the One commenter stated that none of requires only that the federal agency obligation to confirm that certification the cases cited by the EPA in the confirm that the certifying authority has conditions are within the scope of proposed rule suggested that federal complied with procedural requirements section 401. agencies have authority to review the of the Act and these regulations and has Other commenters asserted that the substance of State-imposed section 401 included the required information in a proposed approach would conflict with conditions to determine whether they certification, condition, or denial. sections 401(a) and (d) because, they comply with the EPA’s view of the Although this limited review function assert, that under section 401(a) a appropriate scope of the statute. The may be new to some federal agencies, it federal license or permit may not issue same commenter stated that the is consistent with the EPA’s own if certification is denied, and under proposal’s rationale that federal longstanding practice under its NPDES section 401(d), federal agencies have no agencies have struggled to enforce State regulations implementing section 401 authority to review or veto State or certification conditions misses the point that allow the EPA to make such Tribal conditions or certifications. and that enforcement of certification determinations under certain These commenters stated that the conditions may also be initiated by the circumstances. See 40 CFR 124.53(e). proposed provision would improperly appropriate States through State law, Under the final rule, if a certification, circumvent judicial review. Some citing Delaware Riverkeeper Network v. condition or denial meets the commenters stated that the proposed Secretary of Penn. Dep’t of Envt’l procedural requirements of section 401 rule’s federal agency review provision is Protection, 833 F.3d 360 (3d Cir. 2016). and this final rule, the federal agency in contravention of the legislative One commenter stated that EPA Office must implement the certifying intent. Some commenters stated that of General Counsel opinions have authority’s action, irrespective of judicial precedent prohibits the EPA previously ‘‘interpreted [401(d)] broadly whether the federal agency may disagree from authorizing federal agencies to to preclude federal agency review of with aspects of the certifying authority’s review the scope or grounds for State state certifications,’’ citing Roosevelt substantive determination. and Tribal decisions on water quality Campobello Inter. Park v. U.S. EPA, 684 certifications. One commenter stated F.2d 1041, 1056 (1st Cir. 1982) (citing ii. Federal Agency Review of Scope that the authority of federal agencies to opinions of the EPA Office of General The proposed rule would have review State section 401 certifications is Counsel on the issue). Some required federal licensing and narrow and limited to ensuring that the commenters also stated that to review a permitting agencies to review and State complies with the specific condition to determine whether it falls

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substantively within the scope of water evaluation of certification conditions clarifications should provide certifying quality requirements would create a and denials. authorities with the information and substantial burden on federal agencies tools necessary to act on certification iii. Remedying Deficient Conditions and making these types of determinations. requests consistent with section 401 and Denials Some commenters stated that the within the scope of certification proper place for water quality The proposed rule would have provided in this final rule, reducing the certifications and their conditions to be allowed federal agencies to provide need to remedy deficient conditions or challenged is in court, particularly State certifying authorities with the denials. The EPA has concluded in the court. Some commenters stated that opportunity to remedy deficient final rule that if a federal licensing or State courts are the appropriate venue to conditions and denials. However, in permitting agency wishes to create challenge water quality certifications response to public comments and to procedures whereby certifying because those certifications are issued increase clarity in the final rule, the authorities may remedy deficient under State law and State courts know Agency is not finalizing these conditions or denials, it may do so in its how best to interpret State law. Some provisions. own water quality certification Commenters expressed a variety of commenters stated that the legislative regulations. Such procedures may not viewpoints about whether federal history for the 1972 amendments to the be used to exceed the one-year statutory agencies can or should provide CWA repeatedly shows that Congress limit on the reasonable period of time. certifying authorities with the intended conflicts regarding the scope The approach in the final rule provides opportunity to remedy deficient of section 401 to be resolved by State sufficient flexibility to those federal conditions and denials. One commenter courts, not federal agencies. agencies should they wish to update did not support providing certifying For the reasons articulated in the their water quality certification authorities with the opportunity to regulations to provide additional proposed and final rule preambles, the remedy conditions that are not related procedures for remedying deficient EPA disagrees with the proposition that to water quality, while other certification conditions or denials. relevant case law precludes any federal commenters asserted that the ability to review of certification conditions. The remedy deficient conditions should be H. Certification by the Administrator EPA also disagrees with one mandatory rather than discretionary. 1. What is the Agency finalizing? commenter’s assertion that, as a general Some commenters expressed concern matter, States may independently regarding timeframes for federal review, In the final rule, the Agency is enforce certification conditions through notification to States and Tribes, and establishing specific procedures State law. See section III.K.2.a of this opportunity for States and Tribes to regarding public notice and requests for notice for further discussion on the remedy water quality certifications and additional information that apply only enforcement of certification conditions suggested that the opportunity to cure a when the EPA is the certifying within federal licenses or permits. deficient condition could effectively authority. As discussed in section III.B Although the proposed requirement was shorten the reasonable period of time. of this notice, the Agency proposed to consistent with the principle that Commenters also requested that require pre-filing meeting procedures federal agencies have the authority to certifying authorities should be able to only when the EPA is the certifying reject certifications or conditions that remedy deficient conditions regardless authority, but the final rule expands the are inconsistent with the requirements of whether the reasonable period of time requirement for pre-filing meeting and limitations of section 401 itself (see has expired, or at least up until the one- requests to all project proponents, City of Tacoma, Wash. v. FERC), the year maximum reasonable period of including federal agencies when they final rule reflects the EPA’s conclusion time specified in the CWA. Some seek certification for general licenses or that courts of competent jurisdiction are commenters expressed concern that the permits, regardless of the certifying better suited to evaluate the underlying proposal did not provide an authority. The rationale for expanding State or Tribal law to determine whether administrative appeal process for a this practice to all section 401 certifying a specific certification condition or the certifying authority to dispute that authorities as a best practice for all basis for a denial is within the scope of conditions and denials are in fact certification actions is more fully certification. The EPA also ‘‘deficient.’’ explained in section III.B of this notice. acknowledges that existing lower court The Agency has considered these case law on this topic is mixed, and that comments and determined not to 2. Summary of Final Rule Rationale and requiring federal agencies to conduct a include in the final rule an express Public Comments substantive review to determine allowance for certifying authorities to Section 401(a)(1) of the CWA provides whether conditions or denials are remedy deficient conditions after the that ‘‘[i]n any case where a State or within the scope of certification could certification action is taken. The Agency interstate agency has no authority to create new litigation risk (including recognizes and agrees with many of the give such a certification, such litigation-related staffing and cost implementation and process-related certification shall be from the burdens) for those federal agencies and concerns raised by commenters, Administrator.’’ 33 U.S.C. 1341(a)(1). further complexity and uncertainty including concerns that there may not Currently, all States have authority to concerning the appropriate path for be sufficient time to remedy deficient implement section 401 certification remedying a substantively unlawful conditions during the established programs. However, the EPA acts as the certification condition or denial. The reasonable period of time. The EPA certifying authority in two scenarios: (1) final rule’s scope of certification, disagrees with the commenters who On behalf of federally recognized Indian requiring that ‘‘conditions’’ be within asserted that the certifying authority Tribes that have not received TAS for that scope, and requiring certifying must be given an opportunity to remedy section 401, and (2) on lands of authorities to provide specific deficient conditions even after the exclusive federal jurisdiction, such as information in support of a condition or reasonable period of time has expired. Denali National Park. When acting as a a denial, will help provide reviewing The final rule contains additional certifying authority, the EPA is subject courts with the information and tools clarification on procedural and to the same timeframes and section 401 necessary to conduct a proper substantive requirements. These certification requirements as other

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certifying authorities. This section In circumstances where the EPA is the discharge from the proposed project, the outlines additional procedures that certifying authority and the water body EPA will grant certification. The Agency apply only when the EPA is the impacted by the proposed discharge will continue to comply with the EPA certifying authority. does not have any applicable water Policy on Consultation and The first scenario arises when Tribes quality standards, the EPA’s 1971 Coordination with Indian Tribes when do not obtain TAS authorization for certification regulations provided the certifying on behalf of Tribes and section 401 certifications. As discussed EPA with an advisory role. 40 CFR disagrees with commenters who in section II.F.1 of this notice, Tribes 121.24. The statute does not explicitly suggested that this rule would preclude may obtain TAS authorization for provide for this advisory role, and Tribes from contributing meaningful purposes of issuing CWA section 401 therefore, this final rule does not input. certifications. If a Tribe does not obtain include a similar provision. However, The EPA does not maintain a national TAS for section 401 certifications, the the Agency believes that the technical map of lands for which the Agency EPA is responsible to act as the advisory role provided in section 401(b) serves as the certifying authority, as certifying authority for projects resulting and discussed in section III.J of this such borders may on occasion change as in a potential discharge into waters of notice is sufficient to authorize the EPA Tribes continue to annex and cede the United States on Tribal land. to play an advisory role in such lands. Rather, it is the duty of the The second scenario arises when the circumstances. As a result, omitting this project proponent to determine the federal government has exclusive text in the final rule is unlikely to appropriate certifying authority when federal jurisdiction over land. The change the Agency’s existing practice. seeking a section 401 certification. The federal government may obtain 33 U.S.C. 1341(b). EPA acknowledges that there may be exclusive federal jurisdiction in Commenters provided feedback on a potential for jurisdictional overlap multiple ways, including where the few general aspects of this topic. Several between certifying authorities at certain federal government purchases land with commenters expressed the importance project sites (e.g., at the boundaries of State consent to jurisdiction, consistent of the Administrator’s certification Tribal lands), and the Agency believes with article 1, section 8, clause 17 of the authority where a Tribe or interstate that the requirement for project U.S. Constitution; where a State chooses authority lacks such authority. Some of proponents to request a pre-filing to cede jurisdiction to the federal these commenters stressed that the EPA meeting with certifying authorities will government; and where the federal has a trust obligation to protect water provide an opportunity for clarifying government reserved jurisdiction upon quality for those Tribes that lack TAS discussions about which agency or granting statehood. See Collins v. and a responsibility to provide Tribes organization is the proper certifying Yosemite Park Co., 304 U.S. 518, 529– with an opportunity for meaningful authority. 30 (1938); James v. Dravo Contracting input. One commenter stated that the Some commenters expressed Co., 302 U.S. 134, 141–42 (1937); EPA had not provided a list or map of confusion about whether the ‘‘EPA as Surplus Trading Company v. Cook, 281 the geographic areas in which it intends the certifying authority requirements’’ U.S. 647, 650–52 (1930); Fort to assert certification authority and in the proposed rule applied to just the Leavenworth Railroad Company v. requested that the EPA explicitly EPA, or to all certifying authorities, and Lowe, 114 U.S. 525, 527 (1895). For identify all lands within its jurisdiction one commenter asserted that subpart D example, the federal government and the basis for EPA’s jurisdictional of the proposed regulatory text should retained exclusive jurisdiction over assertion. not use the term ‘‘certifying authority’’ Denali National Park in Alaska’s The EPA has a statutory obligation to to define those instances in which the Statehood Act. Alaska Statehood Act, act as a certifying authority, pursuant to EPA is taking action. The Agency Public Law 85–508, 72 Stat. 339 (1958). CWA section 401(a)(1). Separately, disagrees that using the term ‘‘certifying The EPA’s 1971 certification pursuant to the Agency’s 1984 Indian authority’’ in subpart D of the proposed regulations identified circumstances Policy (EPA Policy for the regulatory text is unclear, as subpart D where the Administrator certifies Administration of Environmental of the proposed rule is titled instead of a State, Tribe, or interstate Programs on Indian Reservations, see ‘‘Certification by the Administrator’’ authority, and limited the https://www.epa.gov/tribal/epa-policy- and section 121.11(c) of the proposed Administrator’s certification to administration-environmental- rule explained that for purposes of this certifying that a potential discharge programs-indian-reservations-1984- subpart the Administrator is the ‘‘will not violate applicable water indian-policy), the EPA has a certifying authority. However, to avoid quality standards.’’ 40 CFR 121.21. responsibility to coordinate with Tribes any potential for confusion, the EPA has However, this language reflects the when making decisions and managing replaced the word ‘‘certifying authority’’ language of section 21(b) of the FWPCA environmental programs that affect with ‘‘the Administrator’’ throughout (1970) and is not consistent with the reservation lands. The EPA takes these subpart D of the final rule. As noted statutory language of section 401(a), obligations and responsibilities above, when the EPA is the certifying which requires authorities to certify that seriously. Consistent with the CWA, the authority, it must comply with all of the the potential discharge will comply final rule directs the EPA to act as the requirements in the final rule, not just with the applicable provisions of CWA certifying authority on behalf of Tribes subpart D. sections 301, 302, 303, 306, and 307. In that do not have TAS for CWA section This final rule includes two sets of this final rule, the Agency is 401. Under the final rule, the EPA does procedural requirements that would modernizing and clarifying its this by determining whether the apply only when the Administrator is regulations by finalizing the following potential discharge from a proposed the certifying authority: (1) Clarified text in section 121.13(a): project will comply with water quality public notice procedures, and (2) requirements, as defined and explained specific timelines and requirements for Certification by the Administrator that the in section III.E.2.b of this notice. As the EPA to request additional discharge from a proposed project will comply with water quality requirements is provided in section 401(a)(1) and in information to support a certification required where no state, tribe, or interstate section 121.7(f) of the final rule, if there request. These requirements are agency has authority to give such a are no water quality requirements discussed below and are included in certification. applicable to the waters receiving the final rule sections 121.15 and 121.14.

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The EPA also proposed a third set of section 401 certification review process (through telephone, online, or other procedural requirements that would should be expanded, which they virtual platforms), as deemed have applied only when the maintained would lead to better appropriate by the Agency. Administrator is the certifying identification of projects that should be b. Requests for Additional Information authority: Pre-filing meeting request denied certification because of adverse requirements. As explained in section effects on water quality. A few The definition of a certification III.B of this notice, the EPA is finalizing commenters disagreed with the request in this final rule identifies the a requirement that all project proposition that public notice should be information that project proponents are proponents, including federal agencies limited to parties known to be interested required to provide to certifying when they seek certification for general and asserted that notice should be authorities when they submit a licenses or permits, submit a pre-filing provided to the general public. One certification request. However, in some meeting request to the certifying commenter suggested that the public cases, the EPA may conclude that authority, regardless of whether the should receive a minimum of 30-days’ additional information is necessary to Administrator is the certifying notice prior to a hearing, or another determine that the potential discharge authority. This requirement is now in timeframe tied to the date when will comply with water quality section 121.4 of final rule subpart B, information is made available for public requirements (as defined at section rather than in subpart D. review. 121.1(n) of the final rule). Section 401 Some commenters recommended does not expressly address the issue of The EPA appreciates the public whether and under what circumstances extending all three of these sets of commenters who provided feedback on proposed requirements to all certifying a certifying authority may request the public notice process for when the authorities. Other commenters additional information to review and act EPA is the certifying authority. The recommended that none of the proposed on a certification request. The EPA public notice and hearing process in the requirements should apply to all concluded that it is reasonable and final rule will ensure that the Agency certifying authorities. The EPA has consistent with the CWA’s statutory keeps the public informed about the considered the conflicting perspectives framework that when the Administrator section 401 certification process and in these comments and has concluded is the certifying authority, the Agency proposed project plans. The proposed in this final rule that only the pre-filing be afforded the opportunity to seek rule included a list of potentially meeting request requirements will apply additional information necessary to do interested parties, such as Tribal, State, to all certifying authorities, as described its job. However, consistent with the in section III.B of this notice. county, and municipal authorities, statute’s firm timeline to act on a heads of State agencies responsible for certification request, it is also a. Public Notice Procedure water quality, adjacent property owners, reasonable to assume that Congress Section 401 requires a certifying and conservation organizations. To intended some appropriate limits be authority to provide procedures for avoid artificially or unintentionally placed on the timing and nature of such public notice, and a public hearing narrowing the universe of potentially requests. This final rule fills the where necessary, on a certification interested parties, this list is not statutory gap and provides a structure request. Some courts have held that this included in the final rule. The for the Administrator as the certifying includes a requirement for public notice procedures in the final rule, including authority to request additional itself. City of Tacoma, 460 F.3d at 68. providing notice to interested parties, information and for project proponents The 1971 certification regulations at 40 will provide sufficient public notice, as to timely respond. Consistent with the CFR part 121.23 described the EPA’s required in section 401, and will proposal, this final rule includes procedures for public notice after provide the public with an opportunity procedural requirements and receiving a request for certification. The to inform the EPA’s certification timeframes for action that will provide EPA is updating its regulations to decision through public comments. transparency and regulatory certainty provide greater clarity to project Under the final rule, the Agency may for the Agency and project proponents. proponents, federal agencies, and other also, at its discretion, determine However, in response to public interested parties concerning the EPA’s whether a public hearing is appropriate comments and to increase clarity, the procedures for public notice when the and necessary. In such cases, all Agency has provided enhancements to Administrator is the certifying interested and affected parties would be the final rule text. authority. given the opportunity to present Some commenters stated that the Under the final rule, when the evidence or testimony at a public procedures proposed for when the EPA Administrator is the certifying hearing. The Agency is not prescribing is the certifying authority would inhibit authority, the Agency will provide a single timeframe for the length of the EPA from seeking additional appropriate public notice, within 20 public notice under the final rule. The information on water quality effects days of receipt of a certification request, appropriate timeframe for notice and relevant to making a certification to parties known to be interested. If the comment is more appropriately decision. Some of these commenters EPA in its discretion determines that a determined on a case-by-case basis, stated that this would lead to public hearing is appropriate or considering project-specific unnecessary denials of certification necessary, the Agency will, to the extent characteristics as well as the length of where, had better information been practicable, give all interested and the established reasonable period of developed, a certification may have affected parties the opportunity to time. In general, the EPA anticipates been granted. The Agency disagrees present evidence or testimony at a that public notices will provide for a 30- with the suggestion that the procedures public hearing. day comment period; however, proposed for when the EPA is the One commenter stated that the public comment periods as short as 15 days or certifying authority would lead to should be kept informed of the section as long as 60 days may be warranted in certification decisions based on 401 process and proposed project plans, some cases, based on the nature of the incomplete information. Consistent with especially for large projects. Another project and the reasonable period of the proposal, the EPA must request commenter suggested that public time. The public hearing may be information within 30 days of receipt. participation requirements in the conducted in-person, or remotely The final rule includes additional

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clarifications that if the EPA finds it project, such as a 30- or 50-year FERC the project proponent to resolve the necessary to request additional license, would not be the same as that dispute. information, then the EPA must make needed for a shorter-term or simpler This final rule is also intended to an initial request within 30 days of project. The EPA agrees with address issues that have caused delays receipt. Nothing in the regulation commenters that information needs may in certifications and project precludes the EPA from making differ depending on the complexity of development and that have resulted in additional information requests at a the proposed project and other project- protracted litigation. Although these later point in the process after an initial specific factors. The final rule provides provisions apply only when the EPA is request is made, so long as that sufficient flexibility for the the certifying authority, they may serve information can be developed by the Administrator to request project-specific as models for other certifying project proponent and considered by the information to help inform the authorities. For example, the Agency is EPA within the reasonable period of certification decision. To ensure that the aware that some certifying authorities time. This final rule acknowledges that Agency’s action remains within the have requested ‘‘additional certifying authorities like the EPA need scope of certification, the EPA has information’’ in the form of multi-year relevant information as early as possible determined that any additional environmental investigations and to review and act on section 401 information requested must be within studies, including completion of a certification requests within the the scope of certification and must be NEPA review, before the authority reasonable period of time. As discussed directly related to the discharge from would even begin review of the in section III.B of this notice, the pre- the proposed project and its potential certification request.62 Consistent with filing meeting request requirement effect on receiving waters. In addition to the plain language of section 401, under under this final rule is intended to ensuring that the Agency acts within the this final rule, when the Administrator ensure that the EPA has an opportunity scope of certification, limiting the type is acting as the certifying authority, such to engage with the project proponent of information that the EPA may request requests from the EPA would not be early, learn about the proposed project, as the certifying authority eliminates authorized because they would extend and consider what, if any, additional unnecessary and burdensome requests. the statutory reasonable period of time, information might be needed from the Doing so also limits EPA review of which is not to exceed one year. This project proponent. information irrelevant to the Agency’s final rule provides clarity that, while Under the final rule, if the Agency decision-making process. additional information requests may be needs additional information, an initial The EPA is also finalizing a provision a necessary part of the certification request for information must be made to that when the Administrator is serving process, such requests may not result in the project proponent within 30 days as the certifying authority, the Agency extending the period of time beyond after the receipt of a certification can request only additional information which the CWA requires the Agency to request. Additional information may that can be collected or generated act. include, for example, more detail about within the established reasonable period Under this final rule, when the the contents of the potential discharge of time. Some commenters disagreed Administrator is acting as the certifying from the proposed project or specific with this provision, and one commenter authority, in any request for additional information about treatment or waste asserted that this provision would information, the EPA must include a management plans or additional details contravene the CWA and the statute’s deadline for the project proponent to about discharges associated with the emphasis on protecting human health respond. The deadline must allow operation of the facility. The final rule sufficient time for the Agency to review does not preclude the Agency from and the environment. Several commenters stated that the proposal making additional requests for 62 defers to a project proponent to Some stakeholders have suggested that it may information, but such requests for be challenging for a state to act on a certification information must still comply with the determine what information may request without the benefit of review under NEPA requirements outlined below in this reasonably be developed during the or a similar state authority. See, e.g., Cal. Pub. Res. section of the final rule preamble. ‘‘reasonable period of time,’’ because the Code Section 21000 et seq.; Wash. Rev. Code project proponent could claim that it Section 43.21C.150. Consistent with the EPA’s 2019 The EPA is finalizing a provision that Guidance, the EPA recommends that certifying when the Administrator is the certifying would take too long to collect or authorities do not need to delay action on a authority, the Agency can request only generate the information. certification request until a NEPA review is additional information that is within the The Agency disagrees with complete. The environmental review required by NEPA has a broader scope than that required by scope of certification and is directly commenters that suggested that this section 401. For example, the NEPA review related to a potential discharge from the provision defers to project proponents evaluates potential impacts to all environmental proposed project and its potential effect to determine what information may be media, as well as potential impacts from alternative on the receiving waters. Some developed during the reasonable period proposals that may not be the subject of a federal license or permit application. By comparison, a commenters supported the proposal to of time. In most cases, it should be section 401 certification review is far more narrow limit additional information requests to objectively known whether certain and is focused on assessing potential water quality information within the scope of the information can be generated or impacts from the proposed federally licensed or section 401 certification, while other collected within the reasonable period permitted project. Additionally, many NEPA reviews have taken more than one year to complete. commenters disagreed with the of time. For example, a multi-year study Waiting for a NEPA process to conclude may result limitation. The Agency considered these cannot be conducted within a 12-month in waiver of the certification requirement for failure and other comments and is finalizing reasonable period of time. Similarly, a to act within a reasonable period of time. To the this provision with minor modifications 180-day study cannot be conducted extent that State or Tribal implementing regulations within a 60-day reasonable period of may have required a NEPA review to be completed to provide clarity and certainty when as part of a section 401 certification review, the EPA the EPA is the certifying authority. time. In the event of disputes between encourages certifying authorities to update those Several commenters stated that the the EPA and the project proponent regulations to incorporate deadlines consistent with proposal would not distinguish between about whether certain new information the reasonable period of time established under the can be collected or generated within the CWA, or to decouple the NEPA review from the complex and simple projects and noted section 401 process, so as to ensure timely action that the type of information needed to reasonable period of time, the EPA will on section 401 certification requests and to avoid develop a certification for a complex engage directly and in good faith with waiver by the certifying authority.

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the additional information once it is the reasonable period of time does not ‘‘immediately’’ notify the EPA of such received, and to act on the certification begin. application and certification. To aid in request within the established clarity and implementation, the Agency I. Determination of Effect on reasonable period of time. reasonably interprets ‘‘immediately’’ to Neighboring Jurisdictions Many commenters asserted that the mean within five days of the Federal proposed rule would not require project 1. What is the Agency finalizing? agency’s receiving notice of the proponents to timely respond to Consistent with the proposal, under certification. 33 U.S.C. 1341(a)(2). The requests for additional information. the final rule, if the EPA in its discretion EPA believes that, in the context of Some commenters requested that the determines that a neighboring section 401(a)(2), five days is a EPA clearly state that failure by the jurisdiction may be affected by a reasonable interpretation of the project proponent to complete a section discharge from a federally licensed or statutory term ‘‘immediately.’’ The 401 certification request or provide permitted project, the EPA must notify federal agency needs some amount of requested additional information within the affected jurisdiction, the certifying time to process receipt of the license a specified time period should be authority, and the federal agency within application and certification from the grounds for denial of certification. 30 days of receiving the notice of the project proponent or certifying The Agency disagrees with the certification from the federal agency. authority, review the received materials suggestion that the project proponent The final rule includes certain (which might be substantial), and then would not be required to timely respond enhancements to the proposed rule to transmit notice to the appropriate EPA to requests for additional information. increase clarity and regulatory certainty, office. Allowing for five days is a Under the final rule, when the as explained below in this section of the prompt yet reasonable period of time to Administrator is the certifying final rule preamble. complete this process. Moreover, unlike authority, project proponents must emergency response or notifications submit requested information by the 2. Summary of Final Rule Rationale and provisions in environmental statutes, EPA’s deadline. The Agency has Public Comment the provisions in CWA 401 governing clarified in section 121.14(e) that a Section 401(a)(2) requires federal certifications do not appear to require project proponent’s failure to provide agencies to immediately notify the EPA an emergency response that might—in additional information does not prevent when a certification is issued by a other contexts—justify interpreting the Administrator from taking action on certifying authority for a federal ‘‘immediately’’ to require a shorter a certification request. If the project licensing or permitting application. period of time to act. As provided in proponent fails to submit the requested Section 401(a)(2) also provides a section 121.9(c) of the final rule, the information, the Agency may conclude mechanism for the EPA to notify States federal agency must provide a separate that it does not have sufficient and authorized Tribes where the EPA written notification of any waiver information to certify that a potential has determined the discharge from a determination; this notification need not discharge will comply with applicable proposed federally licensed or occur prior to transmitting the water quality requirements and may permitted project subject to section 401 certification to EPA under section therefore deny the certification request. may affect the quality of their waters. 121.12(a) of the final rule. The EPA may also use its expertise to The EPA’s 1971 certification regulations This final rule affirms the EPA’s evaluate the potential risk associated established procedural requirements for interpretation that section 401(a)(2) with the remaining information or data this process but required updating to establishes authority for the Agency to gap and to consider granting align with CWA section 401 and to determine in its discretion whether the certification within the reasonable establish additional clarity. The EPA discharge from a certified project may period of time with conditions to recognizes that federal agencies may affect the water quality in a neighboring address those potential risks. The EPA have different processes to satisfy this jurisdiction. One public commenter expects that when the Administrator is requirement and will continue to work agreed with the EPA’s interpretation the certifying authority, these with these agencies to ensure that the and discretion concerning the procedures will provide clarity and Agency is notified of all certifications. determination whether a project may regulatory certainty to the EPA and The final rule does not contain a affect downstream States under CWA project proponents. The EPA notes that standardized process for federal section 401(a)(2). Other commenters States and Tribes may choose to adopt agencies to immediately notify the EPA stated that even if the EPA’s discretion similar provisions to ensure that all when certifications are issued. The EPA is supported by the language of the certifying authorities are working expects federal agencies to develop CWA, the unbounded scope of the effectively and in good faith to act on notification processes as they update discretion is not consistent with the certification requests within the their certification regulations in statute and would not provide reasonable period of time, and that accordance with the Executive Order. accountability to neighboring States, the denials based on a lack of information The final rule provides flexibility for project proponent, or the public without are not done simply for administrative federal agencies to develop processes additional clarification. Some purposes but because additional and procedures that work best within commenters stated that the EPA should information is needed to assure that the their licensing or permitting programs. provide notice to neighboring discharge from the proposed project will Additionally, the Agency has made jurisdictions in every instance, thereby comply with water quality requirements minor, non-substantive modifications to allowing neighboring jurisdictions who and the lack of information cannot be the regulatory text at section 121.12(a) are best situated to understand their addressed by appropriate certification to clarify that the federal agency’s own water quality concerns to make a conditions. The EPA further notes that statutory obligation to notify the EPA is determination as to whether there under the proposal and this final rule, triggered when the federal agency would be an effect on water quality. certifying authorities are not obligated receives a federal license or permit Some commenters stated that the rule to act on incomplete certification application and the related certification. should set forth specific factors that the requests. If a certification request is not The text of section 401(a)(2) provides EPA would consider in making a complete as required by this final rule, that the federal agency must determination or that the EPA’s

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determination should be made in project proponent within 30 days of jurisdiction’s water quality consultation with neighboring receiving the notice that certification requirements, the federal agency cannot jurisdictions. Other commenters was issued for a proposed project. If the issue the license or permit. The final requested that the EPA develop Agency does not provide the required rule further clarifies that the federal regulations or guidance that would notification within 30 days of receiving agency may not issue the license or explain when the EPA would exercise notification from a federal agency, the permit pending the conclusion of the its authority to notify downstream federal agency may resume processing determination of effects on a jurisdictions. the federal license or permit. The EPA neighboring jurisdiction. The EPA appreciates these comments need not wait the full 30 days, but may One commenter asserted that the EPA and recognizes the desire for more notify the federal agency at any time so should consider all Tribes as prescriptive and specific provisions that it may continue processing the neighboring jurisdictions for purposes concerning the determination of license or permit. of section 401(a)(2), irrespective of potential effects on neighboring Some public commenters requested whether they have TAS. The commenter jurisdictions. As a general matter, the changes to the proposed procedures, argued that limiting the application of EPA intends to use its technical such as different timelines for the neighboring jurisdiction provision to expertise from administering the CWA neighboring jurisdictions to make a those Tribes with TAS would subject over nearly fifty years to evaluate decision. One commenter requested that Tribes without TAS to a lesser standard whether a certified project may affect a timelines be flexible and incorporate the of review and ultimately resource neighboring jurisdiction. At this time, same factors that the federal agencies protection. The Agency has determined the EPA is not establishing specific would consider for determining the that only States or authorized Tribes are provisions in the final rule, but the EPA reasonable period of time. Other considered to be ‘‘neighboring may in the future take action to further commenters stated that neighboring jurisdictions’’ under the final rule. As clarify this provision via either jurisdictions should be able to request explained in section II.F.1 of this notice, additional rulemaking or guidance. additional information to make a section 518 of the CWA authorizes the The final rule modifies the EPA’s determination. The EPA is finalizing EPA to treat eligible Tribes with 1971 certification regulations to mirror notification procedures substantively as reservations ‘‘as a State’’ within the the CWA in describing the EPA’s proposed, because they are consistent meaning of that provision, but the CWA procedural duties regarding neighboring with the text of section 401(a)(2). does not authorize the EPA to treat all jurisdictions. The statute provides that, The final rule also provides a Tribes in that manner. 33 U.S.C. following notice of a section 401 predictable framework for 1377(e).63 certification, the Administrator shall determinations by neighboring within 30 days notify a potentially jurisdictions. The final rule requires that J. The EPA’s Role in Review and Advice affected downstream State or authorized the EPA’s notification to neighboring The final rule reaffirms the EPA’s Tribe ‘‘[w]henever such a discharge may jurisdictions be in writing, dated, and important role in providing advice and affect, as determined by the state that the neighboring jurisdiction technical assistance as requested Administrator, the quality of the waters has 60 days to notify the EPA and the through the certification process. The of any other State.’’ 33 U.S.C. 1341(a)(2) federal agency, in writing, whether or final rule provision in section 121.16 (emphasis added). Because the EPA’s not the discharge will violate any of its has been modified from the proposal to duty to notify is triggered only when the water quality requirements (as defined better align with the text of section 401 EPA has made a determination that a at section 121.1(n) of the final rule) and and the scope of certification in this discharge ‘‘may affect’’ a downstream whether the jurisdiction will object to final rule. State or Tribe, the section 401(a)(2) the issuance of the federal license or As described in the proposal, the notification requirement is contingent. It permit and request a public hearing EPA’s 1971 regulations limited the is not a duty that applies to the EPA from the federal agency. The final rule provision of technical assistance to with respect to all certifications, rather also requires that, if the neighboring concerns regarding ‘‘water quality it applies where—exercising its jurisdiction requests a hearing, the standards.’’ To be consistent with the discretion—the EPA has determined federal agency must forward the hearing 1972 amendments, the final rule that the certified discharge ‘‘may affect’’ notice to the EPA at least 30 days before replaces this term with the broader a neighboring jurisdiction’s waters. This the hearing takes place. The public ‘‘water quality requirements’’ which, as provision is being finalized with minor hearing may be conducted in-person or defined in the final rule, includes water modifications to increase clarity remotely through telephone, online, or quality standards. The proposed rule regarding the EPA’s discretionary other virtual platforms, as deemed included a provision specifically determination. The Agency has made appropriate by the Agency. Under the authorizing a certifying authority, minor, non-substantive modifications to final rule, the EPA must provide its federal agency, or project proponent to the regulatory text at section 121.12(b) recommendations on the federal license request assistance from EPA to evaluate to clarify that the 30-day review period or permit at the hearing. After whether a certification condition was is triggered after the Administrator considering the EPA’s and the intended to address water quality effects receives notice from the federal agency. neighboring jurisdiction’s input, the The EPA is also clarifying the section federal agency is required to condition 63 This final rule does not change the regulations 401(a)(2) notification process in this the license or permit as necessary to under which federally recognized Indian Tribes final rule, as such procedures were not assure that the discharge from the obtain authorization to be treated in the same described in sufficient detail in the 1971 certified project will comply with the manner as states. 40 CFR 131.4(c) expressly states that where the EPA determines that a Tribe is certification regulations. If, as described neighboring jurisdiction’s water quality eligible for TAS for purposes of water quality above, the EPA determines that a requirements, as the term is defined in standards, the Tribe is likewise eligible to the same neighboring jurisdiction may be affected the final rule. Consistent with section extent as a State for purposes of section 401 by a certified discharge from a federally 401(a)(2), under the final rule, if certifications. The regulations also establish criteria, application requirements, and application licensed or permitted project, the EPA additional conditions cannot assure that processing procedures for Tribes to obtain TAS must notify the affected jurisdiction, the discharge from the certified project authorization for purposes of CWA water quality certifying authority, federal agency, and will comply with the neighboring standards. See 40 CFR 131.8.

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from the discharge. The Agency is not proponents, certifying authorities, or enforcement. See 40 CFR 121.25. The finalizing that provision because it federal agencies is not a final agency EPA finds no support for that provision concluded that the final rule section action, and it does not render the EPA in CWA section 401, and such a 121.16 is broad enough to capture all a decision maker for purposes of the provision is not included in the final technical advice that may be requested certification action or subsequent action rule. by certifying authorities, federal of the federal agency. a. Federal Agency Enforcement of agencies, and project proponents. Some commenters expressed concern K. Enforcement Certification Conditions that the proposed rule’s description of 1. What is the Agency finalizing? The CWA does not provide an the EPA’s review and advice role goes independent regulatory enforcement Under the final rule, the federal beyond the authority provided in role for certifying authorities. The role agency issuing the applicable federal section 401(b). Other commenters of the certifying authority is to review license or permit is responsible for supported the EPA’s providing the proposed project and to either grant assistance upon request. Other enforcing certification conditions that certification, grant certification with commenters asked whether the EPA are incorporated into a federal license or conditions, deny certification, or waive would be the ‘‘decision maker’’ or a permit. Once the certifying authority certification. Once the certifying party to litigation challenging a acts on a certification request, the CWA authority acts on a certification request, certification if a project proponent, does not provide independent authority section 401 does not provide an certifying authority, or federal agency for certifying authorities to enforce the additional or ongoing role for certifying relied on the EPA’s technical advice at conditions that are included in a authorities to enforce certification any point during the certification certification under federal law. Under conditions under federal law. Rather, process. the final rule, the EPA is interpreting federal agencies typically have Under the final rule, federal agencies, the CWA to clarify that this enforcement enforcement authority in accordance certifying authorities, and project role is reserved to the federal agency with the enabling statutes that provide proponents may seek the EPA’s issuing the federal license or permit. such agencies with permitting and technical expertise at any point during Consistent with section 401, the final licensing authority. the section 401 water quality rule also expands the post-certification Many commenters agreed with the certification process. The Agency inspection function from the 1971 proposal that the enforcement of section disagrees with commenters who certification regulations to all certifying 401 conditions in a federal license or asserted that the proposed regulation authorities. Under the final rule, permit is the sole responsibility of the exceeded the authority provided in certifying authorities are provided the federal agency that issues the license or section 401(b). The Agency is not opportunity to inspect the facility or permit. A few commenters asserted that asserting independent or expanded activity prior to initial operations, in nothing in the CWA provides States authority in this role, but rather will order to determine whether the with the authority to enforce or provide assistance upon request. The discharge from the certified project will implement conditions of a section 401 legislative history for the Act provides violate the certification. After an certification. Another commenter stated further support for the Agency’s inspection, the certifying authority is that if certification conditions were technical role under section 401(b). See required to notify the project proponent enforceable independent of the federal H.R. Rep. No. 92–911, at 124 (1972) and federal agency in writing if it license or permit, there would have (‘‘The Administrator may perform determines that the discharge from the been no need for Congress to require services of a technical nature, such as certified project will violate the conditions to become part of the federal furnishing information or commenting certification. The certifying authority is license or permit under section 401(d). on methods to comply with limitations, also required to specify Another commenter requested that the standards, regulations, requirements or recommendations concerning measures final rule unequivocally provide that criteria, but only upon request of a that may be necessary to bring the section 401 certification conditions may State, interstate agency or Federal certified project into compliance with be enforced only after they are agency.’’). Under the final rule section the certification. incorporated into the federal license or 121.16, a certifying authority, federal permit and only in the same manner as 2. Summary of Final Rule Rationale and the other conditions of the federal agency, or project proponent may Public Comment request assistance from the license or permit, and that such Administrator to provide relevant The CWA expressly notes that all conditions may not be independently information and assistance regarding the certification conditions ‘‘shall become a enforced pursuant to the CWA. As meaning of, content of, application of, condition on any Federal license or reflected in the final rule regulatory text, and methods to comply with water permit’’ subject to section 401.33 U.S.C. the EPA generally agrees with these quality requirements. This provision of 1341(d). The EPA’s 1971 certification commenters. the final rule is not intended to give the regulations did not discuss the federal Other commenters asserted that the EPA authority to make certification agency’s responsibility to enforce rule should allow States and Tribes to decisions, or to independently review certification conditions after they are independently enforce their section 401 certifications or certification requests. incorporated into the permit. Under the certification conditions. Some Nor does this provision authorize the final rule and consistent with the Act, commenters asserted that providing EPA to interpret a State or Tribal water the federal agency is responsible for federal agencies with exclusive quality standard or designated use in a enforcing certification conditions that authority to enforce section 401 manner that is inconsistent with the are incorporated into a federal license or certification conditions, and limiting State or Tribe’s interpretation or permit. In limited circumstances, the State enforcement, is contrary to the implementation of that standard. This EPA’s 1971 certification regulations language of the CWA, legislative history, provision is merely intended to required the Agency to provide notice of and case law, citing Deschutes River implement a provision of the statute a violation and to allow six months for Alliance v. PGE Co., 249 F.Supp.3d that has been in effect since 1972. The a project proponent to return to 1182 (D. Or. 2017); S.D. Warren, 547 provision of technical advice to project compliance before pursuing further U.S. at 386. Another commenter

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asserted that the Agency failed to cite legislative history is either silent or enforcement authority for all provisions any legal authority for prohibiting States lacks a definitive statement of of the federally issued license or permit, from enforcing their own certifications. congressional intent.65 The Agency including any conditions incorporated One commenter asserted that section agrees with the commenter who noted from a certification. The Agency also 401 does not override State enforcement that if certification conditions were disagrees with commenters who authority under State law, in those enforceable independent of the federal requested that the EPA include States that have provided for it. A few license or permit, there would have authority in the final rule for States and commenters referenced the savings been no need for Congress to require Tribes to independently enforce or to clause in section 510 as explicitly conditions to be included in the federal jointly enforce certification conditions. preserving State authority to enforce license or permit under section 401(d). The EPA cannot create via rulemaking State laws and requirements and A few commenters asserted that federal or state enforcement authority suggested that reservation includes without State enforcement, project that is not expressly authorized in the enforcement of section 401 proponents will be less likely to comply statute. However, the EPA always certifications. with the State conditions, to the encourages coordination and The EPA has considered these detriment of the environment. Some cooperation between certifying comments and has concluded that some commenters asserted that the certifying authorities and federal agencies, of them reflect a misunderstanding of authority, not the federal agency, often particularly if such coordination can the proposed rule. The Agency has the technical knowledge, result in greater accountability and recognizes that some States have organizational structure, and staffing compliance with certification enacted State laws authorizing State capacity to conduct inspections and to conditions. This final rule is intended to enforcement of certifications or enforce section 401 certification promote efficient permitting processes certification conditions in State court. conditions. One commenter noted that and regulatory certainty by clarifying State enforcement under State the proposal creates regulatory that section 401 does not provide an authorities may be lawful where State uncertainty if States cannot enforce additional or ongoing role for certifying authority is not preempted by federal certifications and conditions. Other authorities to enforce certification 64 law. Nothing in this final rule commenters suggested that enforcement conditions under federal law. This final prohibits States from exercising their of section 401 certifications should be rule provides clarification on who holds enforcement authority under enacted done jointly by federal agencies and project proponents accountable under State laws; however, the legality of such certifying authorities. One commenter federal law and eliminates any enforcement actions may be subject to asserted that the proposed rule should confusion about which entity is review by a court of competent be revised to allow federal agencies and responsible for enforcing specific jurisdiction. Therefore, today’s rule does States to determine their appropriate certification conditions in the federal not implicate, let alone violate, the roles in enforcing water quality license or permit. This final rule also reservation of state authority contained certifications. Another commenter eliminates the possibility of inconsistent in section 510 of the Act. asserted that federal agencies are not interpretation and enforcement of the Rather, the EPA concludes that precluded from consulting with certification conditions in the federal section 401 of the CWA does not certifying authorities if additional license or permit, increasing the authorize States and Tribes to substantive expertise is needed, but likelihood that project proponents will independently enforce section 401 argued that it was important for project be able to comply with the certification certification conditions under federal proponents to know to whom they are conditions. Additionally, as discussed law. The CWA expressly authorizes the accountable and to eliminate the above, the final rule does not preclude certifying authority to review the potential for any conflicting obligations. States from pursuing enforcement proposed project and to either grant The Agency disagrees with certification, grant certification with actions where authorized under State commenters’ suggestion that water law and not preempted by other federal conditions, deny certification, or waive quality will be compromised if States certification. Once the certifying statutory provisions. Importantly, the cannot independently enforce Agency agrees that federal agencies are authority acts on a certification request, certifications under federal law. The the CWA does not authorize certifying not precluded from consulting with federal licensing or permitting agency certifying authorities or the EPA when authorities to enforce certification remains responsible for exercising its conditions under federal law; rather, a exercising their enforcement authority under CWA section 401. federal agency may enforce its license or 65 Most of the legislative history simply repeats permit, including section 401 the language from section 401 that certification The Agency received feedback during certification conditions. The EPA has conditions ‘‘will become a condition on any Federal stakeholder outreach, both pre-proposal reviewed and considered legislative license or permit’’ (H.R. Rep. No. 92–911, at 124 and post-proposal, expressing concern (1972) or that the certification becomes an history from the 1972 amendments and ‘‘enforceable condition on the Federal license or that federal agencies may not concludes that, on this point, the permit’’ (S. Rep. No. 92–414, at 69 (1971)). consistently or sufficiently enforce However, the Senate’s consideration of the certification conditions incorporated 64 Examples of situations where State authority Conference report states that ‘‘If a State establishes into their federal licenses or permits. would be preempted by federal law include FERC’s more stringent limitations and/or time schedules The Agency has also received feedback sole authority to approve the construction of pursuant to Section 303, they should be set forth interstate natural gas pipelines and to regulate the in a certification under Section 401. Of course, any from other federal agencies noting the transportation of natural gas for resale on these more stringent requirements imposed by a State potential challenge with enforcing interstate pipelines under the Natural Gas Act (5 pursuant to this section shall be enforced by the certain certification conditions, U.S.C. 717 et seq.; see also Schneidewind v. ANR Administrator.’’ Sen. Consideration of Conf. Rep. particularly those that are ill-defined, Pipeline Co., 485 U.S. 293 (1988); Dominion No. 92–1236 (Exhibit 1), at 171 (1972) (emphasis Transmission, Inc. v. Summers, 723 F.3d 238 (D.C. added) As discussed in sections III.H, III.I, and III.J that lack clarity, or that are beyond the Cir. 2013)) and FERC’s exclusive authority to of this notice, the text of section 401 provides scope of certification as outlined in license nonfederal hydropower projects under the specific roles for EPA as a certifying authority, section III.E of this notice. The Agency Federal Power Act (16 U.S.C. 797(e), 817(1); see protecting waters in neighboring jurisdictions, and anticipates the clarity provided in this also California v. Federal Energy Regulatory providing technical assistance, but section 401 does Comm’n, 495 U.S. 490 (1990); First Iowa Hydro- not provide an enforcement role for EPA when it final rule with respect to the scope of a Electric Cooperative v. FPC, 328 U.S. 152 (1946)). is not the federal licensing or permitting agency. certification, the scope of the conditions

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of a certification (see section III.E.2.c of Section 401(a)(4) and the EPA’s 1971 inspect the project both before and this notice), and the requirements for a certification regulations at 40 CFR part during operation in order to ensure the certification with conditions (see 121.26 through 121.28 describe project is compliant with any section III.G.2.b of this notice) will circumstances in which the certifying certification conditions. One commenter provide federal agencies with sufficient authority may inspect a facility that has explained that the certifying authority information to enable them to received certification prior to would not always be able to determine effectively enforce certification operation 66 and may notify the federal compliance with all conditions of the conditions. agency so that the agency may certification prior to operation. Another Enforcement plays an essential role in determine whether the facility will commenter asserted that it would be maintaining robust compliance with the violate applicable water quality unacceptable for the State (rather than CWA, and a critical part of any strong requirements. 33 U.S.C. 1341(a)(4). The the project proponent) to identify the enforcement program is the appropriate Agency is updating these regulations to measures necessary to correct identified use of enforcement discretion. See, e.g., reflect the scope of certification review violations of certification conditions. Heckler v. Chaney, 470 U.S. 821, 831 under the modern CWA. See section Another commenter stated that it is (1985). Enforcement programs exercise 121.11 of the final rule and section III.E unclear whether States have jurisdiction discretion and make careful and of this notice. The Agency has made over post-license maintenance and informed choices about where to minor, non-substantive modifications to repair projects that have an impact on conduct investigations, identifying the section 121.11(a) from proposal to water quality. most serious violations and reserving match the language of section 121.11(b) The EPA disagrees with commenters limited enforcement resources for the and section 401(a)(4). Additionally, who suggested that the final rule should cases that can make the most difference. consistent with section 401, the EPA is expand the inspection and enforcement See Sierra Club v. Whitman, 268 F.3d expanding this inspection function to authority provided in section 401. As 898, 902–03 (9th Cir. 2001). It is all certifying authorities and is finalized, this rule is consistent with the important for enforcement programs to clarifying the process by which breadth of inspection and enforcement retain their enforcement discretion certifying authorities should notify the authority provided in section 401. This because federal agencies are in the best federal agency and project proponent of provision in the final rule is intended to position to (1) determine whether a any concerns arising from inspections. allow the certifying authority the particular action is likely to succeed, (2) Consistent with section 401, this final opportunity to inspect the facility or assess whether the action fits agency rule provides certifying authorities the activity to determine whether the policies, and (3) determine whether opportunity to inspect the facility or discharge will violate the certification there are enough agency resources to activity prior to initial operation in issued. This final rule clarifies that after undertake and effectively prosecute the order to determine whether the commencement of operations, action, taking account of all other discharge from the certified project will enforcement of certification conditions agency constraints and priorities. See violate the certification. The EPA notes incorporated into the federal license or Heckler, 470 U.S. at 831. that section 401(a)(4) authorizes permit is reserved to the federal agency A couple of commenters asserted that certifying authorities to ‘‘review the that issued the federal license or permit section 401 is not included in the CWA manner in which the facility or activity under federal law. Accordingly, after enforcement provision, CWA section shall be operated . . . ’’ for purposes of commencement of operations, all 309, and that the CWA citizen suit assuring that water quality requirements inspections and enforcement will be provision, CWA section 505, does not will not be violated. 33 U.S.C. conducted by the federal agencies. As authorize a citizen suit to enforce 1341(a)(4). The final rule uses the terms discussed above, federal agencies are certification conditions. One commenter ‘‘inspect’’ and ‘‘inspection’’ because not precluded from consulting with noted that although Dombeck held that these are well understood terms that certifying authorities or the EPA when a citizen suit could be used to challenge provide additional clarity in the final exercising their enforcement authority the issuance of a permit without a rule. The Agency does not expect these under section 401. certification, the court did not make terms to change the meaning of section reference to the enforcement of b. Reasonable Assurance vs. Will 401(a)(4), as implemented through Comply certification conditions. A few other section 121.11 of the final rule. After an commenters asserted that enforcement inspection, the certifying authority is The proposed rule replaced the of section 401 certification conditions is required to notify the project proponent language from the existing regulations authorized under the CWA citizen suit and the federal agency responsible for requiring a ‘‘reasonable assurance that provision, citing CWA section 505, issuing the federal license or permit in the proposed activity will not result in Oregon Natural Desert Ass’n v. writing if the discharge from the a violation of applicable water quality Dombeck, 172 F.3d 1092 (9th Cir. 1998), certified project will violate the standards’’ with language requiring and Deschutes River Alliance v. PGE certification. The certifying authority is ‘‘that a discharge from a Federally Co., 249 F.Supp.3d 1182 (D. Or. 2017). also required to specify licensed or permitted activity will The EPA considered these public recommendations concerning measures comply with water quality comments and the varying that may be necessary to bring the requirements.’’ The Agency received interpretations described above and is certified project into compliance with comments expressing concerns about declining to adopt a particular the certification. this proposed change. According to interpretation in this final rule. The EPA Some commenters asserted that a these commenters, the ‘‘will comply’’ did not propose an interpretation of the certifying authority’s compliance language could result in States’ CWA section 505 citizen suit provision assurance and enforcement role should including certification conditions that and did not solicit comment on its not be limited to one pre-operational are difficult or impossible to comply applicability to section 401 inspection and asserted that the with, resulting in greater non- certifications or certification conditions, certifying authority must be allowed to compliance by project proponents. A and EPA is therefore declining to few commenters expressed concern that finalize an interpretation of these 66 The Agency notes that operation may include ‘‘will comply’’ would impose a stricter provisions in this final rule. implementation of a certified project. standard on States than ‘‘reasonable

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assurance,’’ such that they would be (d), which require certifying authorities 2. Summary of Final Rule Rationale and unable to develop conditions that to conclude that a discharge ‘‘will Public Comment include adaptive management comply’’ with water quality a. The EPA’s Role in Modifications provisions. These commenters requirements (as defined in section maintained that the ‘‘reasonable 121.1(n) of this final rule). Section 401 does not provide an express oversight role for the EPA with assurance’’ standard currently allows for The Agency disagrees with the adaptive future decision-making despite respect to the issuance or modification suggestion that using ‘‘will comply’’ of section 401 certifications. The EPA’s present uncertainties. Other will place an impossible standard on commenters stated that, in some cases, role under section 401 consists of certifying authorities. The Agency does providing a common framework for the certifying authorities may be unable to not intend or believe that the statutory demonstrate that a proposed project will program through rulemaking, providing language requires States to ensure that technical assistance under section be in compliance with water quality a project will maintain strict requirements at all times in the future, 401(b), ensuring the protection of other compliance, in every respect, States’ waters under section 401(a)(2), potentially resulting in more denials. throughout its entire existence. The Another commenter stated that the and acting as the certifying authority in inclusion of the statutory language ‘‘will language in the final rule should some circumstances. However, the comply’’ does not require certifying include a ‘‘reasonable assurance’’ EPA’s 1971 certification regulations authorities to provide absolute certainty standard that a discharge would meet provided the Agency an oversight role that applicants for a federal license or water quality requirements, rather than in the unique context of modifications permit will never violate water quality the ‘‘will comply’’ standard in the to existing water quality certifications. requirements. Indeed, future proposal. Several commenters noted 40 CFR 121.2(b). The final rule removes compliance depends on many factors that sections 401(a)(3) and (a)(4) this oversight role from the regulatory besides just facility design and retained the ‘‘reasonable assurance’’ text, as it is inconsistent with the operation, and it would not be language and asserted that Congress statute. inadvertently changed the language in reasonable for an authority to certify The Agency solicited comment (a)(1) and (d). Another commenter that no unknown future event could generally on the appropriate scope of argued that the ambiguity throughout ever result in a violation of the the EPA’s oversight role under section 401(a) and (d) suggests that the certification. The use of the language 401, and specifically whether the EPA competing provisions cannot be comparable to ‘‘will comply’’ is not should play any role in oversight of harmonized based on a plain language uncommon in CWA regulatory State or Tribal certifications or reading of the statute alone. programs. For example, CWA section modifications, and, if so, what that role The Agency disagrees with the 402 contemplates that an NPDES should be. The Agency received a suggestion that the ‘‘reasonable permits may issue only upon a showing considerable number of public assurance’’ language should be retained that discharge ‘‘will meet’’ various comments on this issue, most of which in the final rule. The ‘‘reasonable enumerated provisions. 33 U.S.C. supported removing the EPA’s oversight assurance’’ language in the EPA’s 1971 1342(a). This standard has not role for modifications to certifications. certification regulations was an artifact precluded States, Tribes, or the EPA Some commenters agreed with the from the pre-1972 version of section from routinely issuing NPDES permits proposal that there is no statutory basis 21(b), which provided that the certifying for a variety of discharges; nor has it for section 121.2(b) of the 1971 authority would certify ‘‘that there is resulted in NPDES permits that are certification regulations, nor is there any reasonable assurance . . . that such impossible for permittees to comply indication that Congress intended for activity will be conducted in a manner with. The Agency concludes that use of the EPA to have an oversight role for which will not violate applicable water the statutory language ‘‘will comply’’ in modifications to certifications. Another quality standards.’’ Public Law 91–224, the final rule remains loyal to the words commenter suggested that the EPA 21(b)(1), 84 Stat. 91 (1970). The Agency that Congress chose when it enacted could follow the process described in acknowledges that the inclusion of the section 401. The Agency has no the proposed rule section 121.10 to meet phrase ‘‘reasonable assurance’’ in theoretical or empirical basis to its obligation under section 401(a)(2) section 401(a)(3) and (a)(4) creates some conclude that the language in the final regarding neighboring States with ambiguity. The legislative history does rule will materially change the way in respect to a modification to a section not explain why Congress retained the which certifying authorities, including 401 certification. term in sections 401(a)(3) and (a)(4) but the EPA, process certification requests, The EPA agrees with commenters that not in sections 401(a) and (d). so long as certifying authorities act in there is no statutory basis in section 401 Under basic canons of statutory good faith and in accordance with CWA for the Agency to have an oversight role construction, the EPA begins with the section 401. for modifications to certifications. The presumption that Congress chose its Agency disagrees with the commenter words intentionally. See, e.g., Stone v. L. Modifications who asserted that it would be INS, 514 U.S. 386, 397 (1995) (‘‘When 1. What is the Agency finalizing? appropriate to expand the EPA’s Congress acts to amend a statute, we authority provided under section presume it intends its amendment to The EPA is finalizing the rule as 401(a)(2) to grant the Agency a more have real and substantial effect.’’). The proposed and is removing EPA’s formal oversight role. The EPA’s role Agency presumes that Congress chose to oversight role for modifications to an under section 401(a)(2) is plainly use the phrase ‘‘will comply’’ in existing certification. Additionally, the limited to (1) notifying a State or sections 401(a)(1) and (d), while final rule does not authorize or include authorized Tribe if the Agency makes a retaining the phrase ‘‘reasonable any procedure for certifying authorities discretionary determination that a assurance’’ in 401(a)(3) and (a)(4). As to modify certifications after issuance. discharge from a certified project may such, the scope under this final rule and As discussed below, there are other affect the waters of that jurisdiction, and the ‘‘will comply’’ language are established procedures that certifying (2) subsequently providing consistent with the 1972 CWA authorities may rely on to address recommendations to the federal agency amendments to section 401(a)(1) and modifications, should the need arise. if the affected neighboring jurisdiction

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requests a hearing. See section III.I of Some commenters encouraged the court vacates or remands a certification this notice. EPA to provide clarity on the process by or condition thereof, the certifying which a certification can be modified authority may need to modify the b. Modifications by Certifying and the timeframe for that modification, certification, depending on the specifics Authorities so as to help avoid future regulatory of the court’s decision, and the federal In light of the statute’s one-year time uncertainty and litigation. A few agency may need to modify the license limit for a certifying authority to act on commenters asked the EPA to clarify the or permit accordingly. To reduce a section 401 certification, the EPA process by which federal agencies must uncertainty, federal agencies may solicited comment on whether and to respond to any requested revisions to establish procedures in their regulations what extent States or Tribes should be certifications beyond the reasonable to clarify how modifications would be able to modify a previously issued period of time. As discussed in more handled in these specific scenarios. For certification, either before or after the detail below, the final rule does not example, the EPA’s existing regulations reasonable period of time expires, before authorize certifications to be modified regarding certification in the NPDES or after the license or permit is issued, after they have been issued. Section 401 program, located at 40 CFR 124.55(b), or to correct an aspect of a certification does not grant States the authority either provide procedures for modification in or its conditions if remanded or found to unilaterally modify a certification certain circumstances (‘‘If there is a unlawful by a federal or State court or after it is issued or to include change in the State law or regulation administrative body. ‘‘reopener’’ clauses in a certification. upon which a certification is based, or Certain commenters were in favor of However, other established procedures if a court of competent jurisdiction or retaining the ability for States and are available to address situations that appropriate State board or agency stays, Tribes to modify certifications. One necessitate a modification after a vacates, or remands a certification, a commenter asserted that other CWA certification has been issued. State which has issued a certification sections, such as sections 402 and 404, Some commenters distinguished under [section] 124.53 may issue a also do not explicitly allow for between modifications made within the modified certification or notice of modifications, yet the EPA and the reasonable period of time and those waiver and forward it to EPA.’’). Corps assume authority to modify outside of that timeframe. A few of these Additionally, the need to unilaterally permits issued under those sections as commenters suggested various scenarios modify a certification to address a long as they follow their own processes in which a modification should be change in the proposed project should to do so. However, many commenters allowed, including scenarios in which a be unnecessary under this final rule. As suggested that certain parameters court remands a certification or discussed in section III.C of this notice, should be applied to modifications, condition, the project proponent wants if certain elements of the proposed such as restrictions on ‘‘unilateral’’ to correct an error, or the discharge in project change materially after a modifications and ‘‘reopener’’ clauses. the federal license or permit changes. certification is issued, it may be The EPA disagrees with commenters Another commenter asserted that State reasonable for the project proponent to who argued in favor of allowing modification of certification conditions submit a new certification request. The modifications to certifications. As outside of the one-year review period clock stops after a certifying authority described throughout this final rule should not automatically become part of issues a certification decision, and preamble, section 401 certifications are the license or permit, citing Airport therefore the Agency disagrees with the unique in that they are not subject to Communities Coalition v. Graves, 280 F. suggestion that modifications should be ongoing enforcement by certifying Supp. 2d 1207, 1217 (W.D. Wash. 2003). allowed to occur after that point but authorities or oversight by the EPA, as The EPA has determined that section within the reasonable period of time. section 402 and 404 permits may be. 401 does not provide authority for a The EPA requested comment on Indeed, once a certification is issued, certifying authority to unilaterally whether EPA should expressly prohibit the conditions therein are incorporated modify a certification, either through certification conditions that may create into a different document, a federal certification conditions that purport to regulatory uncertainty, including license or permit, for implementation authorize the certifying authority to conditions that extend the effective date and enforcement. Allowing reopen the certification in the future or of a certification beyond the reasonable certifications to be modified after through any other mechanism. The period of time and conditions that issuance could create significant Agency also notes that the ability to authorize certifications to be reopened. confusion and regulatory uncertainty unilaterally modify a certification after Some commenters opposed certification within those federal license and permit issuance is unnecessary, because conditions that enable a State or Tribe programs. circumstances that may necessitate to ‘‘reopen’’ or revisit the certification at Some commenters argued that modifications often will be linked to a specific time or upon certain triggering ‘‘unilateral’’ modifications by the other actions that have established events. A few commenters argued that certifying authority should not be procedures. For example, if a federal reopeners could effectively eliminate allowed, whereas other commenters license or permit is modified or the the one-year time limit in the statute favored a broad ability for States and underlying project is changed such that and transform section 401’s grant of Tribes to modify certifications. The the federal license or permit requires State authority into an ongoing commenters who disfavored unilateral modification, it may trigger the regulatory role. Another commenter, modifications argued that it would requirement for a new certification, stating that reopener clauses allowing a effectively void the maximum depending on the federal agency’s State or Tribe to unilaterally modify a reasonable period of time of one year procedures. See, e.g., 18 CFR 5.23 certification are contrary to law, noted and would lead to economic uncertainty (requiring project proponents to submit that a regulation prohibiting such for the project and possibly lengthy and a new certification request when the clauses would be consistent with expensive litigation. One commenter project proponent submits an judicial precedent, citing Triska v. Dept stated that unilateral modifications application to FERC to amend an of Health & Envtl. Control, 355 SE2d should be allowed in certain existing hydropower license or to 531, 533–34 (S.C. 1987). Other circumstances, such as before the amend a pending application for a commenters maintained that States and reasonable period of time has expired. hydropower license). Similarly, if a Tribes should retain their authority to

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modify certifications whenever provides express statutory language a general license or permit. General circumstances warrant, and that no (e.g., specifying the time period in licenses and permits are vital to the federal agency should have authority which a certifying authority must act on effective operation of several federal over conditions issued by a State or a certification request or waive its right programs such as the CWA section 402 Tribe or future modifications to those to act; requiring certification conditions and section 404 programs, producing conditions. A few commenters noted to be incorporated into a separate efficiencies that save time and money that the broad authority granted in federal permit) that displaces the for project proponents and regulators. section 401(d) of the CWA also provides general principle, and thus Congress has General licenses and permits provide authority for a State or Tribe to include precluded the certifying authority from streamlined procedures for project a ‘‘reopener’’ clause to ensure that their reconsidering or modifying a proponents by authorizing categories of waters are protected, especially given certification. For the reasons explained discharges or simplified review the long timeframes for some projects. above, unilateral modifications, procedures when the discharges comply The EPA has considered these including certification conditions that with specified requirements. Federal comments and concludes that reopener would reopen the certification in the licensing and permitting agencies must clauses are inconsistent with section future, are not authorized in section obtain a section 401 certification when 401. The final rule does not include an 401. issuing general licenses or permits, and explicit prohibition on reopener clauses The Agency also disagrees with the final rule accounts for the potential because the EPA has concluded that commenters that assert that the federal variation of future projects or activities such conditions are already proscribed agency should not have authority over that may be covered under the general by section 121.6(e) of the final rule. By certification conditions or license or permit. The final rule including a reopener condition in a modifications. As discussed in section provides slightly modified requirements certification, the certifying authority III.G.2.b of this notice, consistent with to account for differences between intends to take an action to reconsider section 401(d), certification conditions individual and general licenses and or otherwise modify a previously issued that meet the requirements of final rule permits in the water quality certification certification at some unknown point in section 121.7(d) shall be incorporated context. the future. As described in section III.F into the federal license or permit. a. Certification Request for a General above, the reasonable period of time to Accordingly, the federal agency is the License or Permit act on a certification request begins appropriate party to address any when a certifying authority receives the modifications to the license or permit, The Agency took comment on request, and ends when the certifying including those certification conditions whether federal agencies seeking authority takes action to grant, grant incorporated into the license or permit. certification for a general license or permit should be subject to the same or with conditions, deny, or waive. The M. General Licenses and Permits reasonable period of time does not different ‘‘certification request’’ continue to run after a certification 1. What is the Agency finalizing? submittal requirements as other project decision is issued. A reopener In response to comments received, the proponents seeking certification for an condition, if allowed under this final Agency is finalizing several provisions individual license or permit. A few rule, would effectively extend the specific for certifications for the commenters stated that federal agencies established reasonable period of time issuance of general licenses or permits. should follow the same procedures as into the future, potentially indefinitely. Section 121.5(c) of the final rule other project proponents for submitting The Agency acknowledges that projects specifically defines elements of a certification requests. Another may change after a certification is ‘‘certification request’’ that must be commenter encouraged the EPA to issued; but, as discussed above, there submitted for the issuance of general revise the elements of a certification are other procedures in this final rule licenses or permits. The Agency is also request to provide flexibility for general and in other federal agency regulations including additional provisions in licenses or permits, because the type, that can address project changes that section 121.7 of the final rule to address means, and methods used to monitor would necessitate a new or modified certification conditions and denials for the future discharges that may be certification or federal license or permit. general licenses and permits. authorized in the future may not be Reopener conditions are not authorized This final rule preamble also reaffirms known. The final rule includes specific under this final rule because such that a federal agency seeking requirements for certification requests actions by the certifying authority certification for a general license or for the issuance of general licenses or would modify the reasonable period of permit must comply with all provisions permits. time, contrary to section 121.6(e) of the of this final rule, including the pre-filing Where a federal agency is seeking to final rule. meeting request requirement in section issue a general license or permit, the As discussed above, section 401 does 121.4. This final rule preamble also EPA expects the federal agency to not provide certifying authorities with clarifies a federal agency’s obligation follow the requirements of section the authority to modify certifications under section 401(a)(2) to notify the 121.5(c) of the final rule. Section after they are issued. The Agency EPA when it receives certification for a 121.5(c) of the final rule includes a list disagrees with commenters who assert general license or permit. of documents and information required that section 401(d) provides certifying for ‘‘certification request for issuance of 2. Summary of Final Rule Rationale and a general license or permit,’’ similar to authorities with authority to include Public Comment reopener clauses as a condition on a the list that was included in the federal license or permit. As a general The majority of certifications are proposed rule as an alternative matter, administrative agencies possess issued for projects that require an approach: the inherent authority to reconsider individual federal license or permit. 1. Identify the project proponent(s) and a prior decisions; 67 however, section 401 However, certifications are also required point of contact; prior to the issuance or establishment of 2. identify the proposed categories of 67 See e.g., Motor Vehicle Mfrs. Ass’n v. State activities to be authorized by the general Farm Mut. Auto. Ins. Co., 463 U.S. 29, 42 (1983); 15 (2009); Belville Mining Co. v. United States, 999 license or permit for which certification is FCC v. Fox Television Studios, 556 U.S. 502, 514– F.2d 989, 997 (6th Cir. 1993). requested;

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3. include the draft or proposed general Certifications for issuance of general apply to entities seeking certification for license or permit; permits and licenses must include the a general license or permit. As 4. estimate the number of discharges information requirements in section discussed in section III.I of this notice, expected to be authorized by the proposed 121.7(d)(2) of the final rule. section 401(a)(2) provides a mechanism general license or permit each year; 5. include documentation that a pre-filing For each certification condition on for the EPA to notify a State or an meeting request was submitted to the issuance of a general license or permit, authorized Tribe where the EPA has certifying authority at least 30 days prior to section 121.7(d)(2) of the final rule determined that the discharge from a submitting the certification request; requires: certified project may affect the quality of 6. contain the following statement: ‘The (i) A statement explaining why the that State’s or Tribe’s waters. The Act project proponent hereby certifies that all condition is necessary to assure that any requires federal agencies to notify the information contained herein is true, discharge authorized under the general EPA of certifications and associated accurate, and complete to the best of my license or permit will comply with federal licensing or permitting knowledge and belief’; and water quality requirements; and applications. 33 U.S.C. 1341(a)(2). This 7. contain the following statement: ‘The statutory obligation extends to any project proponent hereby requests that the (ii) A citation to federal, state, or tribal certifying authority review and take action on law that authorizes the condition. circumstance where a federal agency this CWA 401 certification request within the Similarly, section 121.7(e)(1) of the receives a certification, including where applicable reasonable period of time.’ final rule provides the information the federal agency receives certification requirements for certification denials for issuance of a general license or The list in section 121.5(c) is similar that apply when a project proponent has permit. to the list in section 121.5(b) of the final requested certification for an individual The EPA is finalizing a pre-filing rule, including the two new license or permit that may result in a meeting requirement that requires all requirements (a statement that all specific discharge or set of discharges project proponents, including federal information contained in the request is into waters of the United States. See agencies when they seek certification for true, accurate, and complete to the best section III.G.2.c of this notice. The final general licenses or permits, to request a of the project proponent’s knowledge, rule also includes a new section meeting with a certifying authority at and documentation that a pre-filing 121.7(e)(2), which provides slightly least 30 days prior to submitting a meeting request was submitted to the different information requirements for certification request, as discussed in certifying authority at least 30 days denials for general licenses and permits. section III.B of this notice. prior to submitting the certification For each certification denial for request), but with some differences to IV. Economic Analysis issuance of a general license or permit, account for the distinctions between Pursuant to Executive Orders 12866 section 121.7(e)(2) of the final rule issuing a general license or permit and and 13563, the Agency conducted an requires: issuing a license or permit for a specific economic analysis to better understand project, with respect to the available (i) The specific water quality requirements the potential effects of this final rule on information at the time of certification. with which discharges that could be certifying authorities and project The Agency has made these changes authorized by the general license or permit proponents. While the economic regarding how general licenses and will not comply; (ii) A statement explaining why discharges analysis is informative in the permits are handled under this final that could be authorized by the general rulemaking context, the EPA is not rule to improve clarity and for license or permit will not comply with the relying on the analysis as a basis for this consistent administration of section 401 identified water quality requirements; and final rule. See, e.g., Nat’l. Assn. of for all general licenses and permits. (iii) If the denial is due to insufficient Homebuilders v. EPA, 682 F.3d 1032, information, the denial must describe the 1039–40 (D.C. Cir. 2012). The analysis is b. Information Requirements for General types of water quality data or information, if contained and described more fully in License or Permit Certification any, that would be needed to assure that the the document Economic Analysis for the Conditions and Denials range of discharges from potential projects Clean Water Act Section 401 Consistent with commenters and will comply with water quality requirements. Certification Rule (‘‘the Economic other federal agency concerns regarding Although these are both new Analysis’’). A copy of this document is the need to account for the differences provisions in the final rule, the available in the docket for this action. between individual and general license substance of these information Section 401 certification decisions and permits, the final rule contains requirements is very similar to the have varying effects on certifying additional language in sections 121.7(d) information requirements for authorities and project proponents. The and 121.7(e) to ensure that the rule can certification conditions and denials for Agency has limited data regarding the be consistently and appropriately individual licenses and permits that number of certification requests applied to certifications issued for the were included in the proposed rule. The submitted and the outcome of those issuance of general licenses and EPA made only slight changes to these certifications. To make the best use of permits. Section 121.7(d)(1) of the final proposed provisions to facilitate their limited information to assess the rule provides the information application in the general licensing and potential impacts of this final rule on requirements for certification conditions permitting context. Certification denials project proponents and certifying that apply when a project proponent has for a general license or permit must authorities, the Economic Analysis requested certification for an individual contain the information in section provides a qualitative analysis of the license or permit that may result in a 121.7(e)(2) of the final rule. section 401 certification process under specific discharge or set of discharges the 1971 certification regulations and c. Other Provisions of the Final Rule into waters of the United States. See under the final rule. In particular, the Also Apply to Certifications for General section III.C of this notice. The final rule Economic Analysis focuses on the Licenses or Permits includes a new section 121.7(d)(2), revisions to the time period for review, which provides slightly different As mentioned in sections III.B and the scope of review, and the pre-filing information requirements for III.I of this notice, the EPA expects that meeting request requirement. certification conditions for issuance of all of the procedural and substantive This final rule will help certifying general licenses and permits. requirements in this final rule will authorities, federal agencies, and project

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proponents understand what is required The information collected under this rule and a projected decrease in and expected during the section 401 ICR is used by certifying authorities for certifying authority review times certification process, thereby increasing reviewing proposed projects for associated with the clearer scope of transparency and reducing regulatory potential water quality impacts from certification in section 121.3 of the final uncertainty. The EPA concludes that discharges from an activity that requires rule. A full description of the analysis improved clarity concerning the time a federal license or permit, and by the is available in the supporting statement period for review and the scope of EPA to evaluate potential effects on accompanying this information review may make the certification downstream or neighboring collection request. process more efficient for project jurisdictions. Except for when the EPA An agency may not conduct or proponents and certifying authorities. is the certifying authority, information sponsor, and a person is not required to collected under section 401 is not respond to, a collection of information V. Statutory and Executive Order directly collected by or managed by the unless it displays a currently valid OMB Reviews EPA. The primary collection of control number. The OMB control Additional information about these information is performed by States and numbers for the EPA’s regulations in 40 statutes and Executive Orders can be Tribes acting as certifying authorities. CFR are listed in 40 CFR part 9. When found at https://www.epa.gov/laws- Information collected directly by the OMB approves this ICR, the Agency will regulations/laws-and-executive-orders. EPA under section 401 in support of the announce that approval in the Federal Register and publish a technical A. Executive Order 12866: Regulatory section 402 program is already captured amendment to 40 CFR part 9 to display Planning and Review; Executive Order under existing EPA ICR No. 0229.22 (OMB Control No. 2040–0295). the OMB control number for the 13563: Improving Regulation and approved information collection Regulatory Review The final rule clarifies the information that project proponents must provide to activities contained in this final rule. This action is a significant regulatory request a section 401 certification and D. Regulatory Flexibility Act action that was submitted to the Office introduces a pre-filing meeting request of Management and Budget (OMB) for requirement for all project proponents. I certify that this action will not have review. Any changes made in response The final rule also removes information a significant economic impact on a to OMB recommendations have been requirements related to certification substantial number of small entities documented in the docket for this modifications and section 401(a)(2) under the Regulatory Flexibility Act action. In addition, the Agency prepared procedures for neighboring (RFA). In making this determination, the an analysis of potential costs and jurisdictions, and provides additional impact of concern is any significant benefits associated with this action. transparency by identifying, adverse economic impact on small This analysis is contained in the unambiguously, information necessary entities. An agency may certify that a Economic Analysis, which is available to support certification actions. The rule will not have a significant in the docket and is briefly summarized EPA expects this final rule will provide economic impact on a substantial in Section IV of this notice. While greater clarity on section 401 number of small entities if the rule economic analyses are informative in requirements, reduce the overall relieves regulatory burden, has no net the rulemaking context, the Agency is preparation time spent by a project burden, or otherwise has a positive economic effect on the small entities not relying on the economic analysis proponent on certification requests, and subject to the rule. performed pursuant to Executive Orders reduce the review time for certifying 12866 and 13563 and related procedural Under section 401, a federal agency authorities. may not issue a license or permit to requirements as a basis for this final In the interest of transparency and conduct any activity that may result in rule. public understanding, the EPA has any discharge into waters of the United provided here relevant portions of the B. Executive Order 13771: Reducing States, unless the State or authorized burden assessment of the final rule. Regulation and Controlling Regulatory Tribe where the discharge would More information about the burden Costs originate (or the EPA, in certain assessment can be found in the circumstances described above) either Pursuant to Executive Order 13771 supporting statement for the ICR. (1) issues a section 401 water quality (82 FR 9339, February 3, 2017), this Respondents/affected entities: Project certification finding compliance with final rule is a deregulatory action. See proponents, State and Tribal reviewers applicable water quality requirements or the Economic Analysis for further (certifying authorities). discussion about the potential effects of Respondent’s obligation to respond: (2) waives certification. Under section this rule. required to obtain 401 certification (33 401 and this final rule, the applicant for the federal license or permit (the project C. Paperwork Reduction Act U.S.C. 1341(a)(1)). Estimated number of respondents: proponent) is required to request and The information collection activities 97,119 per year. obtain a water quality certification. This in this final rule have been submitted Frequency of response: one per action provides project proponents with for approval to the Office of federal application. greater clarity and regulatory certainty Management and Budget (OMB) under Total estimated burden: 931,000 on the substantive and procedural the Paperwork Reduction Act (PRA). hours (per year). Burden is defined at 5 requirements for obtaining a water The Information Collection Request CFR 1320.3(b). quality certification. This action also (ICR) document that the EPA prepared Total estimated cost: $58 Million (per provides procedural clarity to certifying has been assigned EPA ICR number year), includes $8 Million annualized authorities and Federal licensing and 2603.05 (OMB Control No. 2040–0295). capital or operation & maintenance permitting agencies. The Agency You can find a copy of the ICR in the costs. anticipates this action will result in docket for this rule, and it is briefly The final rule results in an estimated faster, more efficient and more summarized here. The information marginal burden decrease of 136,000 transparent decision-making by collection requirements are not hours. This marginal decrease is certifying authorities. As discussed in enforceable until they are approved by associated with the reduction of the Economic Analysis accompanying OMB. information requirements in the final this final rule, the Agency concludes

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that improved clarity concerning the governments. The kickoff Federalism www.regulations.gov/docket?D=EPA- scope and reasonable period of time for consultation meeting occurred on April HQ-OW-2019-0405. certification review may make the 23, 2019; attendees included During Federalism consultation and certification process more efficient for representatives of intergovernmental engagement efforts and in the State and project proponents, including small associations and other associations local government comments on the entities, and does not expect the cost of representing State and local proposed rule, many States expressed the rule to result in a significant governments. Organizations in concern that the proposed rule would economic impact on a substantial attendance included: National adversely impact State authority and number of small entities. Governors Association, U.S. Conference States’ ability to protect state waters. Commenters raised several concerns, E. Unfunded Mandates Reform Act of Mayors, National Conference of State Legislatures, the Environmental Council including concerns about the federal This action does not contain an of the States, National League of Cities, agency review role in the certification unfunded mandate of $100 million or Council of State Governments, National process; constraints on the certification more as described in the Unfunded Association of Counties, National review process, including the scope, Mandates Reform Act of 1995 (UMRA), Association of Towns and Townships, timeframe, and information to start the 2 U.S.C. 1531–1538, and does not Association of Clean Water statutory review clock; information contain any regulatory requirements Administrators, Western States Water requirements to act on a certification that significantly or uniquely affect Council, Conference of Western request; State enforcement role in small governments. While this action Attorneys General, Association of State certification; and the potential impact creates enforceable duties for the private Wetland Managers, and Western on existing State regulations and law. sector, the cost does not exceed $100 Governors’ Association. Additionally, The Agency acknowledges that the million or more. This action does not one in-person meeting was held with final rule may change how States create enforceable duties for State and the National Governors Association on administer the section 401 program, but Tribal governments. See Section IV of May 7, 2019. The Agency also held an has made adjustments in the final rule this notice for further discussion on the informational webinar for States and to account for many of the concerns Economic Analysis. Tribes on May 8, 2019. At these raised by states. The Agency has made certain changes in response to F. Executive Order 13132: Federalism webinars and meetings, the EPA comments, including comments from Executive Order 13132, titled provided a presentation and sought input on areas of section 401 that may States and local governments. The final ‘‘Federalism’’ (64 FR 43255, August 10, rule preserves the robust State role in 1999), requires federal agencies to require clarification, including timeframe, scope of certification review, the certification process in a manner develop an accountable process to consistent with the CWA. As discussed and coordination among project ensure ‘‘meaningful and timely input by in section III.G of this notice, the final proponents, certifying authorities, and state and local officials in the rule does not provide federal agencies federal licensing or permitting agencies. development of regulatory policies that with a role in substantively reviewing See section II.C of this notice for more have federalism implications.’’ The State certification decisions. information on outreach with States Executive Order defines ‘‘policies that Additionally, the final rule expands the prior to Federalism consultation. have federalism implications’’ to pre-filing meeting requirement to all include regulations that have Letters and webinar attendee feedback project proponents and allows States, in ‘‘substantial direct effects on the states, received by the Agency before and their discretion, to meet with project on the relationship between the national during Federalism consultation may be proponents to discuss information government and the states, or on the found on the pre-proposal needs and concerns prior to starting the distribution of power and recommendations docket (Docket ID No. reasonable period of time. The final rule responsibilities among the various EPA–HQ–OW–2018–0855, available at notice also clarifies that certifying levels of government.’’ The Agency https://www.regulations.gov/docket? authorities may request additional concludes that the final rule may have D=EPA-HQ-OW-2018-0855). These information during the reasonable federalism implications because it may webinars, meetings, and letters provided period of time, and the final rule impact how some States have a wide and diverse range of interests, preserves certifying authorities’ ability historically implemented water quality positions, and recommendations to the to deny certification requests if they certification programs. This final rule Agency. Following publication of the have inadequate information to makes the EPA’s CWA section 401 proposed rule, the Agency held two determine whether a discharge complies regulation consistent with the statutory additional in-person meetings with with water quality requirements. The language, and acknowledges that States State representatives to answer final rule definition of ‘‘water quality may modify their practices to be clarifying questions about the proposal requirements’’ no longer limits other consistent with this regulation. The EPA and to discuss implementation appropriate requirements of State law to provides the following federalism considerations. The Agency has requirements that are EPA-approved; summary impact statement. prepared a report summarizing its rather, the definition captures State or The Agency consulted with State and consultation and additional outreach to Tribal regulatory requirements for point local government officials, or their state and local governments and the source discharges into waters of the representative national organizations, results of this outreach. A copy of the United States. The final rule also during the development of this action as final report is available in the docket removes the requirement for certifying required under the terms of Executive (Docket ID No. EPA–HQ–OW–2019– authorities to provide a statement of Order 13132 to permit them to have 0405) for this final rule. Correspondence whether and to what extent a less meaningful and timely input into the received from State and local stringent condition could satisfy proposed rule’s development. On April governments and their representative applicable water quality requirements. 24, 2019, the Agency initiated a 30-day national associations during the public As required by Section 8(a) of Federalism consultation period prior to comment period can be found in Docket Executive Order 13132, the EPA proposing this rule to allow for ID No. EPA–HQ–OW–2019–0405, included a certification from its meaningful input from State and local available at https:// Federalism Official stating that the EPA

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had met the Executive Order’s sent 15 pre-proposal recommendation significant adverse effect on the supply, requirements in a meaningful and letters to the Agency as part of the distribution, or use of energy. timely manner. A copy of this consultation process. All Tribal and J. National Technology Transfer and certification is included in the official Tribal organization letters and webinar Advancement Act record for this final action. feedback may be found on the pre- This action is not subject to the G. Executive Order 13175: Consultation proposal recommendations docket (Docket ID No. EPA–HQ–OW–2018– National Technology Transfer and and Coordination With Indian Tribal Advancement Act of 1995 because the Governments 0855). The Agency met with four Tribes at the staff-level. rule does not involve technical Executive Order 13175, entitled The Agency continued engagement standards. ‘‘Consultation and Coordination with with Tribes after the end of the formal Indian Tribal Governments’’ (65 FR K. Executive Order 12898: Federal consultation period. Following the Actions To Address Environmental 67249, Nov. 9, 2000), requires agencies publication of the proposed rule, the to develop an accountable process to Justice in Minority Populations and Agency held two in-person meetings Low-Income Populations ensure ‘‘meaningful and timely input by with Tribal representatives to answer tribal officials in the development of clarifying questions about the proposal, This action is not subject to Executive regulatory policies that have tribal and to discuss implementation Order 12898 (59 FR 7629, February 11, implications.’’ This action has Tribal considerations and Tribal interest in the 1994) because there is no significant implications. However, it will neither section 401 water quality certification evidence of disproportionately high and impose substantial direct compliance process. In addition, the Agency adverse human health or environmental costs on federally recognized Tribal continued to meet with individual effects on minority populations, low governments nor preempt Tribal law. income populations, and/or indigenous During Tribal consultation and Tribes requesting consultation or engagement following publication of the populations, as specified in Executive engagement efforts and in Tribal Order 12898. comments on the proposed rule, many proposed rule, holding staff-level Tribes expressed concern that the meetings with 11 Tribes and leader-to- L. Congressional Review Act proposed rule would adversely impact leader level meetings with two Tribes This action is subject to the CRA, and Tribal waters. The final rule may affect post-proposal. In total, the Agency met the EPA will submit a rule report to how Tribes with treatment in a similar with 14 individual Tribes requesting each House of the Congress and to the manner as a state (TAS) for CWA consultation, holding leader-to-leader Comptroller General of the United section 401 administer their section 401 level consultation meetings with two States. This action is not a ‘‘major rule’’ program, but will not have an individual Tribes and staff-level as defined by 5 U.S.C. 804(2). administrative impact on Tribes for meetings with 13 individual Tribes (the whom the EPA certifies on their behalf. Agency met with some Tribes more than List of Subjects in 40 CFR Part 121 The Agency has made changes in the once). The Agency has prepared a report Environmental protection, final rule in response to comments, summarizing the consultation and Administrative practice and procedure, including comments from Tribes. The further engagement with Tribal nations. Intergovernmental relations, Water final rule maintains the ability for This report, Summary Report of Tribal pollution control. Tribes to provide input in the Consultation and Engagement for the Andrew Wheeler, certification process and preserves the Clean Water Act Section 401 robust Tribal role in the certification Certification Rule (Docket ID No. EPA– Administrator. process in a manner consistent with the HQ–OW–2019–0405), is available in the For the reasons set forth in the CWA. docket for this final rule. preamble, EPA is revising 40 CFR part The Agency consulted with Tribal As required by section 7(a), the EPA’s 121 as follows: officials at the beginning of rule Tribal Consultation Official has certified development to permit meaningful and that the requirements of the executive PART 121—STATE CERTIFICATION OF timely input, consistent with the EPA order have been met in a meaningful ACTIVITIES REQUIRING A FEDERAL Policy on Consultation and and timely manner. A copy of the LICENSE OR PERMIT Coordination with Indian Tribes. The certification is included in the docket Sec. EPA initiated a Tribal consultation and for this action. coordination process before proposing Subpart A—General H. Executive Order 13045: Protection of this rule by sending a ‘‘Notification of Children From Environmental Health 121.1 Definitions. Consultation and Coordination’’ letter and Safety Risks Subpart B—Certification Procedures dated April 22, 2019, to all 573 Federally recognized Tribes. The letter This action is not subject to Executive 121.2 When certification is required. invited Tribal leaders and designated Order 13045 (62 FR 19885, April 23, 121.3 Scope of certification. 121.4 Pre-filing meeting request. consultation representatives to 1997) because the environmental health 121.5 Certification request. participate in the Tribal consultation or safety risks addressed by this action 121.6 Establishing the reasonable period of and coordination process. The Agency do not present a disproportionate risk to time. held two identical webinars on this children. 121.7 Action on a certification request. action for Tribal representatives on May 121.8 Effect of denial of certification. I. Executive Order 13211: Actions 7 and May 15, 2019. The Agency also 121.9 Waiver. Concerning Regulations That presented on this action at the Region 9 121.10 Incorporation of certification Significantly Affect Energy Supply, Regional Tribal Operations Committee conditions into the license or permit. Distribution, or Use Spring meeting on May 22, 2019. 121.11 Enforcement and compliance of certification conditions. Additionally, Tribes were invited to two This action is not a ‘‘significant webinars for States, Tribes, and local energy action’’ as defined in Executive Subpart C—Other Jurisdictions governments on April 17, 2019 and May Order 13211 (66 FR 28355, May 22, 121.12 Determination of effects on 8, 2019. Tribes and Tribal organizations 2001), because it is not likely to have a neighboring jurisdictions.

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Subpart D—Certification by the accordance with applicable submission (5) Include a description of any Administrator procedures. methods and means proposed to 121.13 When the Administrator certifies. (n) Water quality requirements means monitor the discharge and the 121.14 Request for additional information. applicable provisions of §§ 301, 302, equipment or measures planned to treat, 121.15 Notice and hearing. 303, 306, and 307 of the Clean Water control, or manage the discharge; Subpart E—Consultations Act, and state or tribal regulatory (6) Include a list of all other federal, interstate, tribal, state, territorial, or 121.16 Review and advice. requirements for point source discharges into waters of the United local agency authorizations required for Authority: 33 U.S.C. 1251 et seq. States. the proposed project, including all approvals or denials already received; Subpart A—General Subpart B—Certification Procedures (7) Include documentation that a pre- § 121.1 Definitions. filing meeting request was submitted to § 121.2 When certification is required. the certifying authority at least 30 days (a) Administrator means the Certification is required for any prior to submitting the certification Administrator of the Environmental license or permit that authorizes an request; Protection Agency or an authorized activity that may result in a discharge. (8) Contain the following statement: representative. ‘The project proponent hereby certifies (b) Certification means a water quality § 121.3 Scope of certification. that all information contained herein is certification issued in accordance with The scope of a Clean Water Act true, accurate, and complete to the best Clean Water Act section 401 and this section 401 certification is limited to of my knowledge and belief’; and part. assuring that a discharge from a (9) Contain the following statement: (c) Certification request means a Federally licensed or permitted activity ‘The project proponent hereby requests written, signed, and dated will comply with water quality that the certifying authority review and communication that satisfies the requirements. take action on this CWA 401 requirements of § 121.5(b) or (c). certification request within the (d) Certified project means a proposed § 121.4 Pre-filing meeting request. applicable reasonable period of time.’ project that has received a certification (a) At least 30 days prior to submitting (c) A certification request for issuance or for which the certification a certification request, the project of a general license or permit shall: requirement has been waived. proponent shall request a pre-filing (1) Identify the project proponent(s) (e) Certifying authority means the meeting with the certifying authority. and a point of contact; agency responsible for certifying (b) The certifying authority is not (2) Identify the proposed categories of compliance with applicable water obligated to grant or respond to the pre- activities to be authorized by the general quality requirements in accordance with filing meeting request. license or permit for which certification Clean Water Act section 401. (c) If the certifying authority grants is requested; (f) Discharge for purposes of this part the pre-filing meeting request, the (3) Include the draft or proposed means a discharge from a point source project proponent and the certifying general license or permit; into a water of the United States. authority are encouraged to discuss the (4) Estimate the number of discharges (g) Federal agency means any agency nature of the proposed project and expected to be authorized by the of the Federal Government to which potential water quality effects. The proposed general license or permit each application is made for a license or project proponent is encouraged to year; permit that is subject to Clean Water Act provide a list of other required state, (5) Include documentation that a pre- section 401. interstate, tribal, territorial, and federal filing meeting request was submitted to (h) License or permit means any authorizations and to describe the the certifying authority at least 30 days prior to submitting the certification license or permit granted by an agency anticipated timeline for construction request; of the Federal Government to conduct and operation. any activity which may result in a (6) Contain the following statement: (d) After receiving the pre-filing ‘The project proponent hereby certifies discharge. meeting request, the certifying authority that all information contained herein is (i) Neighboring jurisdiction means any is encouraged to contact the Federal true, accurate, and complete to the best other state or authorized tribe whose agency and to identify points of contact of my knowledge and belief ’; and water quality the Administrator to facilitate information sharing between (7) Contain the following statement: determines may be affected by a the certifying authority and Federal ‘The project proponent hereby requests discharge for which a certification is agency throughout the certification that the certifying authority review and granted pursuant to Clean Water Act process. take action on this CWA 401 section 401 and this part. certification request within the (j) Project proponent means the § 121.5 Certification request. applicable reasonable period of time.’ applicant for a license or permit or the (a) A certification request shall be entity seeking certification. submitted to the certifying authority and § 121.6 Establishing the reasonable period (k) Proposed project means the to the Federal agency concurrently. of time. activity or facility for which the project (b) A certification request for an (a) The Federal agency shall establish proponent has applied for a license or individual license or permit shall: the reasonable period of time either permit. (1) Identify the project proponent(s) categorically or on a case-by-case basis. (l) Reasonable period of time means and a point of contact; In either event, the reasonable period of the time period during which a (2) Identify the proposed project; time shall not exceed one year from certifying authority may act on a (3) Identify the applicable federal receipt. certification request, established in license or permit; (b) Within 15 days of receiving notice accordance with § 121.6 of this part. (4) Identify the location and nature of of the certification request from the (m) Receipt means the date that a any potential discharge that may result project proponent, the Federal agency certification request is documented as from the proposed project and the shall provide, in writing, the following received by a certifying authority in location of receiving waters; information to the certifying authority:

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(1) The date of receipt; for each condition include, at a (b) Where a Federal agency (2) The applicable reasonable period minimum: determines that a certifying authority’s of time to act on the certification (1) For certification conditions on an denial satisfies the requirements of request; and individual license or permit, § 121.7(e), the Federal agency must (3) The date upon which waiver will (i) A statement explaining why the provide written notice of such occur if the certifying authority fails or condition is necessary to assure that the determination to the certifying authority refuses to act on the certification discharge from the proposed project will and project proponent, and the license request. comply with water quality or permit shall not be granted. (c) In establishing the reasonable requirements; and period of time, the Federal agency shall (ii) A citation to federal, state, or tribal § 121.9 Waiver. consider: law that authorizes the condition. (a) The certification requirement for a (1) The complexity of the proposed (2) For certification conditions on license or permit shall be waived upon: project; issuance of a general license or permit, (1) Written notification from the (2) The nature of any potential (i) A statement explaining why the certifying authority to the project discharge; and condition is necessary to assure that any proponent and the Federal agency that (3) The potential need for additional discharge authorized under the general the certifying authority expressly waives study or evaluation of water quality license or permit will comply with its authority to act on a certification effects from the discharge. water quality requirements; and request; or (d) The Federal agency may extend (ii) A citation to federal, state, or tribal (2) The certifying authority’s failure or the reasonable period of time at the law that authorizes the condition. refusal to act on a certification request, (e) Any denial of certification shall be request of a certifying authority or a including: project proponent, but in no case shall in writing and shall include: (1) For denial of certification for an (i) Failure or refusal to act on a the reasonable period of time exceed individual license or permit, certification request within the one year from receipt. (i) The specific water quality reasonable period of time; (1) Any request by a certifying requirements with which the discharge (ii) Failure or refusal to satisfy the authority or project proponent to the will not comply; requirements of § 121.7(c); Federal agency to extend the reasonable (ii) A statement explaining why the (iii) Failure or refusal to satisfy the period of time shall be in writing. discharge will not comply with the requirements of § 121.7(e); or (2) If the Federal agency agrees to identified water quality requirements; (iv) Failure or refusal to comply with extend the reasonable period of time, and other procedural requirements of the Federal agency shall notify the (iii) If the denial is due to insufficient section 401. certifying authority and project information, the denial must describe (b) A condition for a license or permit proponent in writing. the specific water quality data or shall be waived upon the certifying (e) The certifying authority is not information, if any, that would be authority’s failure or refusal to satisfy authorized to request the project needed to assure that the discharge from the requirements of § 121.7(d). proponent to withdraw a certification the proposed project will comply with (c) If the certifying authority fails or request and is not authorized to take any water quality requirements. refuses to act, as provided in this action to extend the reasonable period (2) For denial of certification for section, the Federal agency shall of time other than specified in issuance of a general license or permit, provide written notice to the § 121.6(d). (i) The specific water quality Administrator, certifying authority, and § 121.7 Action on a certification request. requirements with which discharges project proponent that waiver of the that could be authorized by the general certification requirement or condition (a) Any action by the certifying license or permit will not comply; has occurred. This notice must be in authority to grant, grant with (ii) A statement explaining why writing and include the notice that the conditions, or deny a certification discharges that could be authorized by Federal agency provided to the request must be within the scope of the general license or permit will not certifying authority pursuant to certification, must be completed within comply with the identified water quality § 121.6(b). the reasonable period of time, and must requirements; and (d) A written notice of waiver from otherwise be in accordance with section (iii) If the denial is due to insufficient the Federal agency shall satisfy the 401 of the Clean Water Act. information, the denial must describe project proponent’s requirement to Alternatively, a certifying authority may the types of water quality data or obtain certification. expressly waive certification. information, if any, that would be (e) Upon issuance of a written notice (b) If the certifying authority needed to assure that the range of of waiver, the Federal agency may issue determines that a discharge from a discharges from potential projects will the license or permit. proposed project will comply with comply with water quality water quality requirements, it may issue requirements. § 121.10 Incorporation of certification or waive certification. If the certifying (f) If the certifying authority conditions into the license or permit. authority cannot certify that the determines that no water quality (a) All certification conditions that discharge from a proposed project will requirements are applicable to the satisfy the requirements of § 121.7(d) comply with water quality waters receiving the discharge from the shall be incorporated into the license or requirements, it may deny or waive proposed project, the certifying permit. certification. authority shall grant certification. (b) The license or permit must clearly (c) Any grant of certification shall be identify any certification conditions. in writing and shall include a statement § 121.8 Effect of denial of certification. that the discharge from the proposed (a) A certification denial shall not § 121.11 Enforcement of and compliance project will comply with water quality preclude a project proponent from with certification conditions. requirements. submitting a new certification request, (a) The certifying authority, prior to (d) Any grant of certification with in accordance with the substantive and the initial operation of a certified conditions shall be in writing and shall procedural requirements of this part. project, shall be afforded the

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opportunity to inspect the facility or request a public hearing from the from the project proponent, provided activity for the purpose of determining Federal agency. that the initial request is made within whether the discharge from the certified (2) Notification of objection and 30 days of receipt. project will violate the certification. request for a hearing from the (b) The Administrator shall request (b) If the certifying authority, after an neighboring jurisdiction shall: Be in only additional information that is inspection pursuant to subsection (a), writing; identify the receiving waters it within the scope of certification and is determines that the discharge from the determined will be affected by the directly related to the discharge from certified project will violate the discharge; and identify the specific the proposed project and its potential certification, the certifying authority water quality requirements it effect on receiving waters. determines will be violated by the shall notify the project proponent and (c) The Administrator shall request certified project. the Federal agency in writing, and only information that can be collected recommend remedial measures (3) If the neighboring jurisdiction requests a hearing in accordance with or generated within the reasonable necessary to bring the certified project period of time. into compliance with the certification. § 121.12(c)(2), the Federal agency shall hold a public hearing on the (d) In any request for additional (c) The Federal agency shall be neighboring jurisdiction’s objection to information, the Administrator shall responsible for enforcing certification the license or permit. include a deadline for the project conditions that are incorporated into a (i) The Federal agency shall provide proponent to respond. federal license or permit. the hearing notice to the Administrator (1) The project proponent shall Subpart C—Other Jurisdictions at least 30 days before the hearing takes comply with the deadline established by place. the Administrator. § 121.12 Determination of effects on (ii) At the hearing, the Administrator (2) The deadline must allow sufficient neighboring jurisdictions. shall submit to the Federal agency his time for the Administrator to review the (a) A Federal agency shall within 5 or her evaluation and additional information and to act on the days notify the Administrator when it recommendation(s) concerning the certification request within the receives a license or permit application objection. reasonable period of time. (iii) The Federal agency shall: and the related certification. (e) Failure of a project proponent to Consider recommendations from the (b) Within 30 days after the timely provide the Administrator with neighboring jurisdiction and the Administrator receives notice in additional information does not extend Administrator, and any additional accordance with § 121.12(a), the evidence presented to the Federal the reasonable period of time or prevent Administrator at his or her discretion agency at the hearing; and determine the Administrator from taking action on may determine that the discharge from whether additional certification a certification request. the certified project may affect water conditions are necessary to assure that § 121.15 Notice and hearing. quality in a neighboring jurisdiction. In the discharge from the certified project making this determination and in will comply with the neighboring (a) Within 20 days of receipt, the accordance with applicable law, the jurisdiction’s water quality Administrator shall provide appropriate Administrator may request copies of the requirements. public notice of receipt, including to certification and the federal license or (iv) If additional certification parties known to be interested in the permit application. conditions cannot assure that the proposed project or in the receiving (c) If the Administrator determines discharge from the certified project will waters into which the discharge may that the discharge from the certified comply with the neighboring occur. project may affect water quality in a jurisdiction’s water quality (b) If the Administrator in his or her neighboring jurisdiction, the requirements, the Federal agency shall discretion determines that a public Administrator, within 30 days after not issue the license or permit. hearing is appropriate or necessary, the receiving notice in accordance with EPA shall: Schedule such hearing at an § 121.12(a), shall notify that neighboring Subpart D—Certification by the appropriate time and place; and, to the jurisdiction, the certifying authority, the Administrator extent practicable, give all interested Federal agency, and the project and affected parties the opportunity to § 121.13 When the Administrator certifies. proponent. The federal license or permit present evidence or testimony in person may not be issued pending the (a) Certification by the Administrator or by other means at the hearing. conclusion of the processes in this that the discharge from a proposed paragraph. project will comply with water quality Subpart E—Consultations (1) Notification from the requirements is required where no state, tribe, or interstate agency has authority § 121.16 Review and advice. Administrator shall: Be in writing, be to give such a certification. dated, and identify the materials The Administrator may, and upon (b) In taking action pursuant to this provided by the Federal agency. The request shall, provide Federal agencies, paragraph, the Administrator shall certifying authorities, and project notification shall inform the comply with the requirements of Clean neighboring jurisdiction that it has 60 proponents with relevant information Water Act section 401 and 40 CFR part and assistance regarding the meaning of, days to notify the Administrator and the 121. Federal agency, in writing, whether it content of, application of, and methods has determined that the discharge will § 121.14 Request for additional to comply with water quality violate any of its water quality information. requirements. requirements, to object to the issuance (a) If necessary, the Administrator [FR Doc. 2020–12081 Filed 7–10–20; 8:45 am] of the federal license or permit, and to may request additional information BILLING CODE 6560–50–P

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