[Federal Register Volume 86, Number 58 (Monday, March 29, 2021)]
[Rules and Regulations]
[Pages 16298-16302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06102]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 153 and 157

[Docket No. RM20-18-000]


Waiver of the Water Quality Certification Requirements of Section 
401(a)(1) of the Clean Water Act

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: Final rule.

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SUMMARY: In this final rule, the Federal Energy Regulatory Commission 
(Commission) is amending its regulations pursuant to section 401(a)(1) 
of the Clean Water Act to establish a categorial reasonable period of 
time for a state or tribal certifying authority to act on a water 
quality certification request for proposed natural gas and liquified 
natural gas projects. The Commission is allowing certifying authorities 
up to one year after receipt of a request for water quality

[[Page 16299]]

certification, filed in connection with a requested Commission-issued 
section 7 certificate of public convenience and necessity or section 3 
authorization under the Natural Gas Act, to grant or deny the request.

DATES: The rule will become effective June 28, 2021.

FOR FURTHER INFORMATION CONTACT: 

David Swearingen (Technical Information), Office of Energy Projects, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-6173, [email protected]
Karin Larson (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8236, [email protected]
Rachael Warden (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8717, [email protected]

SUPPLEMENTARY INFORMATION: 

Table of Contents

 
                                                         Paragraph Nos.
 
I. Background........................................                  1
II. Notice of Proposed Rulemaking....................                  4
III. Discussion......................................                  5
    A. Setting Case-by-Case Periods of Time for                        8
     Certifying Authorities To Act...................
    B. Flexibility for Certifying Authorities To Act.                 10
    C. Binding Effect on Other Agencies..............                 12
    D. Clarification of Notification in the Case of                   14
     Waiver..........................................
IV. Regulatory Requirements..........................                 16
    A. Information Collection Statement..............                 16
    B. Environmental Analysis........................                 17
    C. Regulatory Flexibility Act....................                 18
    D. Document Availability.........................                 20
    E. Effective Date and Congressional Notification.                 23
 

I. Background

    1. Section 401 of the Clean Water Act (CWA) \1\ is a direct grant 
of authority to states \2\ to review for compliance with appropriate 
federal, state, and tribal water quality requirements any discharge 
into a water of the United States that may result from a proposed 
activity that requires a federal license or permit. Section 401(a)(1) 
of the CWA requires that an applicant for a federal license or permit 
to conduct activities that may result in a discharge into the navigable 
waters of the United States, such as a Federal Energy Regulatory 
Commission (Commission) hydroelectric project license, or a Natural Gas 
Act (NGA) certificate of public convenience and necessity for a natural 
gas pipeline, or an authorization for an LNG terminal, must provide the 
federal permitting agency a water quality certification from the state 
in which the discharge originates or evidence of waiver thereof.\3\ 
Pursuant to the CWA, if the state ``fails or refuses to act on a 
request for certification, within a reasonable period of time (which 
shall not exceed one year) after receipt of such request,'' then 
certification is waived.\4\
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    \1\ 33 U.S.C. 1341(a)(1).
    \2\ Indian tribes that have been approved for ``treatment as a 
state'' status may also have the authority under section 401 to 
issue water quality certifications.
    \3\ 33 U.S.C. 1341(a)(1).
    \4\ Id.
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    2. The Commission's practice has been to deem the one-year waiver 
period to commence when the certifying agency receives the request. In 
1987, the Commission promulgated subsections 4.34(b)(5)(iii) and 
5.23(b)(2) \5\ of its regulations governing hydropower licensing 
proceedings to provide that a certifying agency is deemed to have 
waived certification if it has not denied or granted certification by 
one year after the date it received a written certification request.\6\ 
Accordingly, subsections 4.34(b)(5)(iii) and 5.23(b)(2) \7\ of the 
Commission's regulations establish for hydroelectric projects a 
categorical ``reasonable period of time'' of one year.
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    \5\ 18 CFR 4.34(b)(5)(iii) and 5.23(b)(2). Part 4 of the 
Commission's regulations governs applicants using the traditional 
licensing process and part 5 governs applicants using the integrated 
license application process.
    \6\ Waiver of the Water Quality Certification Requirements of 
Section 401(a)(1) of the Clean Water Act, Order No. 464, FERC Stats. 
& Regs. ] 30,730 (1987) (cross-referenced at 38 FERC ] 61,146).
    \7\ 18 CFR 4.34(b)(5)(iii) and 5.23(b)(2).
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    3. While no comparable regulation exists for NGA infrastructure 
proceedings, the Commission's practice is to also categorically apply a 
one-year waiver period for water quality certification applications 
filed in connection to a proposed natural gas or liquefied natural gas 
infrastructure project application.\8\
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    \8\ Constitution Pipeline Co., LLC, 162 FERC ] 61,014, at P 16 
(explaining that since 1987 the Commission has consistently 
determined, both by regulation and in our orders on proposed 
projects, that the reasonable period of time for action under 
section 401 is one year after the date the certifying agency 
receives a request for certification), reh'g denied, 164 FERC ] 
61,029 (2018).
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II. Notice of Proposed Rulemaking

    4. On September 9, 2020, the Commission issued a Notice of Proposed 
Rulemaking (NOPR) proposing to codify the Commission's practice and 
establish a categorical waiver period of one year for water quality 
certification applications filed in connection with a proposed natural 
gas or liquefied natural gas infrastructure project application.\9\ In 
response to the NOPR, the Commission received five comments. The 
Interstate Natural Gas Association of America (INGAA),\10\ U.S. 
Department of the Interior (Interior), National Fuel Gas Supply 
Corporation and Empire Pipeline, Inc. (collectively,

[[Page 16300]]

National Fuel),\11\ the Natural Gas Supply Association and the Center 
for LNG (collectively, NGSA),\12\ and a group of state Attorneys 
General (States) \13\ and California regulatory agencies (California 
Water Boards) \14\ filed comments. The proposal set forth in the NOPR, 
the comments received in response to the NOPR, and the Commission's 
determinations are discussed below.
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    \9\ Waiver of the Water Quality Certification Requirements of 
Section 401(a)(1) of the Clean Water Act, 85 FR 66287, 172 FERC ] 
61,213 (Oct. 19, 2020) (NOPR). As explained in the NOPR, part of the 
impetus for establishing a categorical waiver period was the 
executive order entitled Promoting Energy Infrastructure and 
Economic Growth. Exec. Order 13868 of Apr. 10, 2019, 84 FR 15495 
(Apr. 15, 2019). Executive Order 13868 directed the Environmental 
Protection Agency (EPA) to update its regulations governing water 
quality certification under CWA section 401 and mandated that 
section 401 implementing agencies, such as the Commission, initiate 
a rulemaking to ensure their respective agencies' regulations are 
consistent with the EPA's final rule and with the policies set forth 
in the executive order. 84 FR at 15496. Executive Order 13868 was 
revoked on January 20, 2021, by the executive order entitled 
Protecting Public Health and the Environment and Restoring Science 
to Tackle the Climate Crisis. Exec. Order 13990 of Jan. 20, 2021, 86 
FR 7037, 7041 (Jan. 25, 2021). Because this final rule will simply 
codify the Commission's existing, long-standing practice, described 
above, and is not premised on the EPA's final rule, this rule is not 
affected by E.O. 13868.
    \10\ INGAA is a trade association representing 26 interstate 
natural gas transmission pipeline systems.
    \11\ National Fuel Gas Supply Corporation and Empire Pipeline, 
Inc., are interstate pipeline companies that own and operate 
Commission-regulated pipeline facilities in New York and 
Pennsylvania.
    \12\ The Natural Gas Supply Association is a trade association 
focusing on the downstream natural gas industry, and the Center for 
LNG is a committee of the organization that advocates for public 
policies that advance the use of LNG.
    \13\ The Attorneys General of Maryland, Connecticut, Illinois, 
Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New 
Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and 
the District of Columbia are represented in the comments.
    \14\ The California State Water Resources Control Board and the 
nine California Regional Water Quality Control Boards are 
represented in the comments.
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III. Discussion

    5. The NOPR explained that the Commission believes that the 
benefits of setting a categorical waiver period of one year, as 
permitted by the CWA, best serves the public interest by avoiding 
uncertainty associated with open-ended and varying certification 
deadlines.\15\ We noted that it would be administratively inefficient 
and a potential source of controversy to establish reasonable time 
periods on a case-by-case basis; that state certifying agencies may 
vary in terms of their procedures for reviewing requests for water 
quality certification; that natural gas projects before the Commission 
include highly complex proposals that may well take a state a 
significant time to review; and that studies of the discharge may at 
times be warranted.\16\
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    \15\ NOPR, 172 FERC ] 61,213 at P 6 (citing Order No. 464, FERC 
Stats. & Regs. ] 30,730; Constitution Pipeline Co., LLC, 162 FERC ] 
61,014 at PP 16-17, 20, reh'g denied, 164 FERC ] 61,029 at P 10).
    \16\ Id.
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    6. Given those factors, we found it reasonable to provide the 
maximum time permitted under the CWA, i.e., a categorical one-year 
waiver period. The Commission proposed to add this categorical one-year 
waiver period to its regulations governing applications for 
authorizations under sections 3 and 7 of the NGA for liquefied natural 
gas and natural gas facilities in parts 153 and 157.
    7. In response to the Commission's request for comments on the 
NOPR, the States and California Water Boards, NGSA, and INGAA filed 
supportive comments.\17\ The States and California Water Boards agree 
that requests for authorization under sections 3 and 7 of the NGA tend 
to involve complex projects and support allowing certifying authorities 
the maximum time permitted under the CWA to act.\18\ NGSA states that 
the Commission's proposed rule will provide regulatory consistency and 
certainty and agrees with the Commission's interpretation that the one-
year period for review begins upon the certifying authority's receipt 
of a request for section 401 water quality certification.\19\ INGAA 
comments that the proposed regulatory revisions are consistent with the 
plain reading of the CWA and agrees that it would be inefficient to set 
the reasonable period of time on a case-by-case basis.\20\
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    \17\ National Fuel also supports INGAA's comments and supports 
the Commission's codification of a certification period into its 
regulations. National Fuel's November 18, 2020 Comments at 1.
    \18\ States and California Water Boards' November 18, 2020 
Comments at 2-3. The States and California Water Boards also note 
their continuing objections to the EPA's revisions under 40 CFR part 
121, id. at 3-4, which are outside the scope of this NOPR and final 
rule.
    \19\ NGSA's November 18, 2020 Comments at 2-9.
    \20\ INGAA's November 18, 2020 Comments at 3-4.
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A. Setting Case-by-Case Periods of Time for Certifying Authorities To 
Act

    8. National Fuel contends that the Commission need not adopt the 
one-year period as its categorical reasonable period of time, arguing 
that simple projects or those that do not raise significant concerns 
under the CWA could merit a shorter reasonable period of time.\21\ 
National Fuel suggests that an applicant could assist the Commission in 
identifying such suitable projects.\22\
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    \21\ National Fuel's November 18, 2020 Comments at 2.
    \22\ Id.
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    9. As the Commission has explained in orders on proposed projects, 
the establishment of the categorical one-year waiver period confers 
substantial benefits to the applicant, the certifying agency, and the 
Commission, including: Avoiding the difficulty of having to construe 
divergent state requirements, including what is a triggering request 
for certification, which provides certainty to all parties; refraining 
from intruding on states' authority to create and apply procedural 
regulations; and best serving the public interest by avoiding the 
uncertainty associated with varying and open-ended certification 
deadlines.\23\ For those reasons, and because setting varied limits 
would require additional time and potentially result in controversy, we 
believe that whatever benefit may be conferred to a particular 
applicant by considering an alternate waiver period on a case-by-case 
basis is outweighed by the benefits described above in continuing to 
adhere to the one-year waiver period. We therefore decline to entertain 
the proposal to consider case-by-case alternate waiver periods.
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    \23\ See Constitution Pipeline Co., LLC, 162 FERC ] 61,014 at PP 
16-17, 20, reh'g denied, 164 FERC ] 61,029 at P 10.
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B. Flexibility for Certifying Authorities To Act

    10. The States and California Water Boards urge the Commission to 
provide certifying authorities with as much flexibility as possible in 
completing their section 401 reviews.\24\
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    \24\ States and California Water Boards' November 18, 2020 
Comments at 4.
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    11. As explained above, under the CWA, if the state ``fails or 
refuses to act on a request for certification, within a reasonable 
period of time (which shall not exceed one year) after receipt of such 
request,'' then certification is waived.\25\ In categorically 
establishing a one-year waiver period for water quality certification 
applications, the Commission is providing states with the maximum time 
allowed under the statute and therefore the broadest amount of 
flexibility allowed under the CWA.\26\
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    \25\ 33 U.S.C. 1341(a)(1).
    \26\ See Placer Cnty. Water Agency, 169 FERC ] 61,046 (2019) 
(explaining that section 401's plain language establishes a 
``bright-line rule'' that ``the timeline for a state's action 
regarding a request for certification `shall not exceed one year' 
after `receipt of such request' '' (quoting New York DEC v. FERC, 
884 F.3d 450, 455 (2d Cir. 2018)).
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C. Binding Effect on Other Agencies

    12. INGAA notes that other agencies ``have previously determined 
that a reasonable period of time should generally be less than one 
year'' and notes that the Commission's reasonable period of time cannot 
bind other lead federal permitting agencies.\27\
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    \27\ INGAA's November 18, 2020 Comments at 4-5.
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    13. As relevant to this final rule, the Commission is the lead 
federal agency for authorizations under sections 3 and 7 of the NGA for 
liquefied natural gas and natural gas facilities. We recognize that 
other federal agencies may be lead agency for any number of other types 
of projects requiring a water quality certification under the CWA, and 
we are not attempting to bind any other agency with this final rule.

[[Page 16301]]

D. Clarification of Notification in the Case of Waiver

    14. Interior requests clarification on what action the Commission 
would take to notify or coordinate with federal agencies if the 
categorical one-year waiver period set by the Commission for the 
certifying authority lapses.\28\
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    \28\ Interior's November 17, 2020 Comments at 1 (explaining that 
Interior is concerned it will not have adequate information about 
baseline water quality conditions and that certain statutes require 
its Bureau of Land Management to prevent degradation to waters it 
manages, regardless of whether a certifying authority has waived 
under section 401).
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    15. By statute, waiver is automatic.\29\ However, a state 
certifying agency would be on notice that waiver occurred when the 
applicant files a request for authorization to proceed with 
construction in which the applicant must document that it has received 
all applicable authorizations required under federal law or evidence of 
waiver thereof.\30\ Interested agencies may receive filings in a 
project docket, such as copies of water quality certification 
applications or requests for authorization to proceed with 
construction, by registering and subscribing to the project docket at 
https://ferconline.ferc.gov/eSubscription.aspx. In any case, federal 
agencies should take whatever steps they deem necessary to carry out 
their statutory mandates, regardless of state action or inaction under 
the CWA.
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    \29\ 33 U.S.C. 1341(a)(1). If the certifying authority ``fails 
or refuses to act on a request for certification, within a 
reasonable period of time (which shall not exceed one year) after 
receipt of such request,'' then certification is waived.
    \30\ In addition, pursuant to the EPA's regulations, 40 CFR 
121.9(c), if waiver occurs, the Commission's Office of Energy 
Projects will issue a notice of waiver in the FERC docket for the 
applicable project.
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IV. Regulatory Requirements

A. Information Collection Statement

    16. The Paperwork Reduction Act \31\ requires each federal agency 
to seek and obtain the Office of Management and Budget's (OMB) approval 
before undertaking a collection of information (i.e., reporting, 
recordkeeping, or public disclosure requirements) directed to ten or 
more persons or contained in a rule of general applicability. OMB 
regulations require approval of certain information collection 
requirements contained in final rules published in the Federal 
Register.\32\ This final rule does not contain any information 
collection requirements. The Commission is therefore not required to 
submit this rule to OMB for review.
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    \31\ 44 U.S.C. 3501-3521.
    \32\ See 5 CFR 1320.12.
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B. Environmental Analysis

    17. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant effect on the human environment.\33\ The Commission 
has categorically excluded certain actions from this requirement as not 
having a significant effect on the human environment, including the 
promulgation of rules that are clarifying, corrective, or procedural, 
or that do not substantially change the effect of legislation or the 
regulations being amended.\34\ This final rule proposes to 
categorically establish a reasonable period of time for a certifying 
agency to act on a water quality certification request for natural gas 
and liquified natural gas projects with an application pending with the 
Commission. Because this final rule is procedural in nature, 
preparation of an Environmental Assessment or an Environmental Impact 
Statement is not required.
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    \33\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, FERC Stats. & Regs. ] 30,783 (1987) 
(cross-referenced at 41 FERC ] 61,284).
    \34\ 18 CFR 380.4(a)(2)(ii).
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C. Regulatory Flexibility Act

    18. The Regulatory Flexibility Act of 1980 (RFA) \35\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
The RFA mandates consideration of regulatory alternatives that 
accomplish the stated objectives of a final rule and minimize any 
significant economic impact on a substantial number of small 
entities.\36\ In lieu of preparing a regulatory flexibility analysis, 
an agency may certify that a final rule will not have a significant 
economic impact on a substantial number of small entities.\37\ The 
Small Business Administration's (SBA) Office of Size Standards develops 
the numerical definition of a small business.\38\ The SBA has 
established a size standard for pipelines transporting natural gas, 
stating that a firm is small if its annual receipts (including its 
affiliates) are less than $30 million.\39\
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    \35\ 5 U.S.C. 601-612.
    \36\ Id. 603(c).
    \37\ Id. 605(b).
    \38\ 13 CFR 121.101.
    \39\ 13 CFR 121.201, subsection 486.
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    19. This final rule would apply to entities, a small number of 
which may be small businesses, with an application for a project 
pending with the Commission under section 3 or 7 of the NGA that 
require a water quality certification under section 401(a)(1) of the 
CWA. However, the final rule would have no effect on these entities, 
regardless of their status as a small entity or not, as the rule 
imposes no action or requirement on those entities. Accordingly, 
pursuant to section 605(b) of the RFA, the Commission certifies that 
this final rule will not have a significant economic impact on a 
substantial number of small entities.

D. Document Availability

    20. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
internet through the Commission's Home Page (http://www.ferc.gov). At 
this time, the Commission has suspended access to the Commission's 
Public Reference Room due to the March 13, 2020 proclamation declaring 
a National Emergency concerning the Novel Coronavirus Disease (COVID-
19).
    21. From the Commission's Home Page on the internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    22. User assistance is available for eLibrary and the Commission's 
website during normal business hours from the Commission's Online 
Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

E. Effective Date and Congressional Notification

    23. These regulations are effective June 28, 2021. The Commission 
has determined, with the concurrence of the Administrator of the Office 
of Information and Regulatory Affairs of OMB, that this rule is not a 
major rule as defined in section 251 of the Small Business Regulatory 
Enforcement Fairness Act of 1996.\40\ This rule is being submitted to 
the Senate, House, Government Accountability Office, and Small Business 
Administration.
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    \40\ 5 U.S.C. 804(2).

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[[Page 16302]]

List of Subjects

18 CFR Part 153

    Exports, Natural gas, Reporting and recordkeeping requirements.

18 CFR Part 157

    Administrative practice and procedure, Natural gas, Reporting and 
recordkeeping requirements.

    By the Commission.

    Issued: Issued March 18, 2021.
Nathaniel J. Davis, Sr.,
Deputy Secretary.

    In consideration of the foregoing, the Commission amends parts 153 
and 157, chapter I, title 18, Code of Federal Regulations, as follows:

PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR 
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS

0
1. The authority citation for part 153 continues to read as follows:

    Authority:  15 U.S.C. 717b, 717o; E.O. 10485; 3 CFR, 1949-1953 
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136, 
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).


0
2. Revise Sec.  153.4 to read as follows:


Sec.  153.4  General requirements.

    The procedures in Sec. Sec.  157.5, 157.6, 157.8, 157.9, 157.10, 
157.11, 157.12, 157.22, and 157.23 of this chapter are applicable to 
the applications described in this subpart.

PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND 
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER 
SECTION 7 OF THE NATURAL GAS ACT

0
3. The authority citation for part 157 is revised to read as follows:

    Authority:  15 U.S.C. 717-717w, 3301-3432; 33 U.S.C. 1341(a)(1); 
42 U.S.C. 7101-7352.


0
4. Revise Sec.  157.22 to read as follows:


Sec.  157.22  Schedule for final decisions on a request for a Federal 
authorization.

    (a) For an application under section 3 or 7 of the Natural Gas Act 
that requires a Federal authorization--i.e., a permit, special use 
authorization, certification, opinion, or other approval--from a 
Federal agency or officer, or State agency or officer acting pursuant 
to delegated Federal authority, a final decision on a request for a 
Federal authorization is due no later than 90 days after the Commission 
issues its final environmental document, unless a schedule is otherwise 
established by Federal law.
    (b) For requests for a water quality certification submitted 
pursuant to section 401(a)(1) of the Federal Water Pollution Control 
Act (Clean Water Act) in connection with a project for which 
authorization is sought from the Commission under section 3 or 7 of the 
Natural Gas Act, the reasonable period of time during which the 
certifying agency may act on the water quality certification request is 
one year from the certifying agency's receipt of the request. A 
certifying agency is deemed to have waived the certification 
requirements of section 401(a)(1) of the Clean Water Act if the 
certifying agency has not denied or granted certification by one year 
after the date the certifying agency received a written request for 
certification.

[FR Doc. 2021-06102 Filed 3-26-21; 8:45 am]
BILLING CODE 6717-01-P