[Federal Register Volume 86, Number 104 (Wednesday, June 2, 2021)]
[Proposed Rules]
[Pages 29541-29544]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11513]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 121
[EPA-HQ-OW-2021-0302; FRL-10023-97-OW]
Notice of Intention To Reconsider and Revise the Clean Water Act
Section 401 Certification Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of intent.
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SUMMARY: In accordance with Protecting Public Health and the
Environment and Restoring Science to Tackle the Climate Crisis
(Executive Order 13990), the U.S. Environmental Protection Agency (EPA)
announces its intention to reconsider and revise the Clean Water Act
Section 401 Certification Rule. In addition, EPA will initiate a series
of stakeholder outreach sessions and invite written feedback on how to
revise the requirements for water quality certifications under the
Clean Water Act. EPA intends to revise the Clean Water Act Section 401
Certification Rule in a manner that is well informed by stakeholder
input on the rule's substantive and procedural components; is better
aligned with the cooperative federalism principles that have been
central to the effective implementation of the Clean Water Act; and is
responsive to the national objectives outlined in President Biden's
Executive Order 13990.
DATES: Written feedback must be received on or before August 2, 2021.
ADDRESSES: You may send written feedback, identified by Docket ID No.
EPA-HQ-OW-2021-0302, by any of the following methods:
Federal eRulemaking Portal: https://www.regulations.gov/
(our preferred method). Follow the online instructions for submitting
written feedback.
Email: [email protected]. Include Docket ID No. EPA-HQ-OW-
2021-0302 in the subject line of the message.
Instructions: All submissions received must include the Docket ID
Number. Written feedback received may be posted without change to
https://www.regulations.gov/, including any personal information
provided. Out of an abundance of caution for members of the public and
our staff, the EPA Docket Center and Reading Room are closed to the
public, with limited exceptions, to reduce the risk of transmitting
COVID-19. Our Docket Center staff will continue to provide remote
customer service via email, phone, and webform.
[[Page 29542]]
We encourage the public to submit written feedback via https://www.regulations.gov/ or email, as there may be a delay in processing
mail and faxes. Hand deliveries and couriers may be received by
scheduled appointment only. For further information on EPA Docket
Center services and the current status, please visit us online at
https://www.epa.gov/dockets.
FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Oceans, Wetlands and
Communities Division, Office of Water (4502-T), U.S. Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number: (202) 564-3351; email address: [email protected].
SUPPLEMENTARY INFORMATION: Clean Water Act (CWA) Section 401 provides
states \1\ and tribes \2\ with a powerful tool to protect the quality
of their waters from adverse impacts resulting from federally licensed
or permitted projects. Under CWA Section 401, a federal agency may not
issue a license or permit to conduct any activity that may result in
any discharge into navigable waters, unless the state or tribe where
the discharge would originate either issues a CWA Section 401 water
quality certification finding ``that any such discharge will comply
with the applicable provisions of Sections 301, 302, 303, 306, and
307'' of the CWA, or certification is waived. 33 U.S.C. 1341(a)(1).
When granting a CWA Section 401 certification, states and tribes are
directed by CWA Section 401(d) to include conditions, including
``effluent limitations and other limitations, and monitoring
requirements'' that are necessary to assure that the applicant for a
federal license or permit will comply with applicable provisions of CWA
Sections 301, 302, 306, and 307, and with ``any other appropriate
requirement of State law.'' Id. at 1341(d).
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\1\ The CWA defines ``state'' as ``a State, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands,
and the Trust Territory of the Pacific Islands.'' 33 U.S.C. 1362(3).
\2\ Tribes refers to tribes that have been approved for
``treatment in a manner similar to a State'' status for CWA Section
401. See 33 U.S.C. 1377(e).
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EPA promulgated implementing regulations for water quality
certification (1971 regulation) \3\ prior to the 1972 amendments to the
Federal Water Pollution Control Act (commonly known as the Clean Water
Act or CWA), which created Section 401. In 2020, EPA revised these
regulations found at 40 CFR part 121. Clean Water Act Section 401
Certification Rule (``401 Certification Rule''), 85 FR 42210 (July 13,
2020).
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\3\ 36 FR 22487, November 25, 1971, redesignated at 37 FR 21441,
October 11, 1972, further redesignated at 44 FR 32899, June 7, 1979.
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On January 20, 2021, President Biden signed Executive Order 13990
directing federal agencies to review rules issued in the prior four
years that are, or may be, inconsistent with the policy stated in the
order. Protecting Public Health and the Environment and Restoring
Science to Tackle the Climate Crisis, Executive Order 13990, 86 FR 7037
(published January 25, 2021, signed January 20, 2021). The order
provides that ``[i]t is, therefore, the policy of my Administration to
listen to the science; to improve public health and protect our
environment; to ensure access to clean air and water; to limit exposure
to dangerous chemicals and pesticides; to hold polluters accountable,
including those who disproportionately harm communities of color and
low-income communities; to reduce greenhouse gas emissions; to bolster
resilience to the impacts of climate change; to restore and expand our
national treasures and monuments; and to prioritize both environmental
justice and the creation of the well-paying union jobs necessary to
deliver on these goals.'' Id. at 7037, Section 1. The order ``directs
all executive departments and agencies (agencies) to immediately review
and, as appropriate and consistent with applicable law, take action to
address the promulgation of Federal regulations and other actions
during the last 4 years that conflict with these important national
objectives, and to immediately commence work to confront the climate
crisis.'' Id. ``For any such actions identified by the agencies, the
heads of agencies shall, as appropriate and consistent with applicable
law, consider suspending, revising, or rescinding the agency actions.''
Id. at 7037, Section 2(a). The 401 Certification Rule was identified
for review under the Executive Order. See Fact Sheet: List of Agency
Actions for Review, available at https://www.whitehouse.gov/briefing-room/statements-releases/2021/01/20/fact-sheet-list-of-agency-actions-for-review/ (last visited on April 26, 2021).
EPA has completed its initial review of the 401 Certification Rule
and determined that it will propose revisions to the rule through a new
rulemaking effort. The agency has considered the following factors in
making this determination, including but not limited to: The text of
CWA Section 401; Congressional intent and the cooperative federalism
framework of CWA Section 401; concerns raised by stakeholders about the
401 Certification Rule, including implementation related feedback; the
principles outlined in the Executive Order; and issues raised in
ongoing litigation challenges to the 401 Certification Rule. As
described below, the agency has identified substantial concerns with a
number of provisions of the 401 Certification Rule that relate to
cooperative federalism principles and CWA Section 401's goal of
ensuring that states are empowered to protect their water quality.
Agencies have inherent authority to reconsider past decisions and
to revise, replace, or repeal a decision to the extent permitted by law
and supported by a reasoned explanation. FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009) (``Fox''); Motor Vehicle
Manufacturers Ass'n of the United States, Inc. v. State Farm Mutual
Automobile Insurance Co., 463 U.S. 29, 42 (1983) (``State Farm'').
Importantly, such a revised decision need not be based upon a change of
facts or circumstances. A revised decision based ``on a reevaluation of
which policy would be better in light of the facts'' is ``well within
an agency's discretion'' National Ass'n of Home Builders v. EPA, 682
F.3d 1032, 1038 (D.C. Cir. 2012) (citing Fox, 556 U.S. at 514-15).
EPA does not intend to replace the 401 Certification Rule with the
1971 regulation. Instead, EPA plans to reconsider and revise the 401
Certification Rule consistent with the principles outlined in the
Executive Order and the agency's legal authority. Additionally, EPA
seeks to revise the rule in a manner that promotes efficiency and
certainty in the certification process, that is well-informed by
stakeholder input on the 401 Certification Rule's substantive and
procedural components, and that is consistent with the cooperative
federalism principles central to CWA Section 401.
Questions for Consideration
The issues EPA intends to reconsider include, but are not limited
to, whether the rule appropriately considers cooperative federalism
principles central to CWA Section 401. EPA has substantial concerns
about whether portions of the rule impinge on those principles. EPA
also intends to reconsider whether certain procedural components of the
rule improve, or impede, the certification and licensing/permitting
processes. To assist in its development of a proposed revision, EPA is
considering specific provisions of the rule for potential revision. EPA
welcomes feedback related to key issues identified during
implementation of the 401 Certification Rule, including but not limited
to, the following:
[[Page 29543]]
1. Pre-filing meeting requests. The rule requires project
proponents to submit a ``pre-filing meeting request'' to certifying
authorities at least 30 days prior to submitting a certification
request. 40 CFR 121.4. EPA is interested in the utility of the pre-
filing meeting process to date, including but not limited to, whether
the pre-filing meetings have improved or increased early stakeholder
engagement, whether the minimum 30 day timeframe should be shortened in
certain instances (e.g., where a certifying authority declines to hold
a pre-filing meeting), and how certifying authorities have approached
pre-filing meeting requests and meetings to date.
2. Certification request. The rule defines a certification request
as ``a written, signed, and dated communication that satisfies the
requirements of [section] 121.5(b) or (c).'' Id. at 121.1(c). Among
other issues, EPA is concerned that the rule constrains what states and
tribes can require in certification requests, potentially limiting
state and tribal ability to get information they may need before the
CWA Section 401 review process begins. EPA is interested in stakeholder
input on this definition and the elements of a certification request
contained at 40 CFR 121.5, including but not limited to, the
sufficiency of the elements described in 40 CFR 121.5(b) and (c), and
whether stakeholders have experienced any process improvements or
deficiencies by having a single defined list of required certification
request components applicable to all certification actions.
3. Reasonable period of time. CWA Section 401 requires a certifying
authority to act on a certification request within a defined time
period known as the ``reasonable period of time.'' The rule requires
the federal licensing or permitting agency to determine the reasonable
period of time using a series of factors, provided that the time does
not exceed one year from the date a certifying authority receives a
certification request. Id. at 121.6. Additionally, the rule allows
federal agencies to extend the reasonable period of time within that
one year time period at a certifying authority or project proponent's
request, but does not allow certifying authorities to take any other
action to extend or modify the reasonable period of time. Id. Among
other issues, EPA is concerned that the rule does not allow state and
tribal authorities a sufficient role in setting the timeline for
reviewing certification requests and limits the factors that federal
agencies may use to determine the reasonable period of time. EPA is
seeking stakeholder input on the process for determining and modifying
the reasonable period of time, including but not limited to, whether
additional factors should be considered by federal agencies when
setting the reasonable period of time, whether other stakeholders
besides federal agencies have a role in defining and extending the
reasonable period of time, and any implementation challenges or
improvements identified through application of the rule's requirements
for the reasonable period of time.
4. Scope of certification. The rule limits the scope of
certification, which includes both the scope of certification review
under CWA Section 401(a) and the scope of certification conditions
under CWA Section 401(d), to ``assuring that a discharge from a
Federally licensed or permitted activity will comply with water quality
requirements.'' Id. at 121.3. The rule defines ``water quality
requirements,'' as the ``applicable provisions of [sections] 301, 302,
303, 306, and 307 of the Clean Water Act, and state or tribal
regulatory requirements for point source discharges into waters of the
United States.'' Id. at 121.1(n). Among other issues, EPA is concerned
that the rule's narrow scope of certification and conditions may
prevent state and tribal authorities from adequately protecting their
water quality. EPA is seeking stakeholder input on the rule's
interpretation of the scope of certification and certification
conditions, and the definition of ``water quality requirements'' as it
relates to the statutory phrase ``other appropriate requirements of
state law,'' including but not limited to, whether the agency should
revise its interpretation of scope to include potential impacts to
water quality not only from the ``discharge'' but also from the
``activity as a whole'' consistent with Supreme Court case law, whether
the agency should revise its interpretation of ``other appropriate
requirements of State law,'' and whether the agency should revise its
interpretation of scope of certification based on implementation
challenges or improvements identified through the application of the
newly defined scope of certification.
5. Certification actions and federal agency review. The rule
provides that certifying authorities may take one of four actions on a
certification request, including granting certification, granting
certification with conditions, denying certification, or waiving
certification. See id. at 121.7, 121.9. The rule requires that
certifying authorities include specific information when granting
certification, granting certification with conditions or denying
certification. Id. at 121.7(c)-(e). Additionally, the rule requires
federal agencies to review certifying authority actions to determine
whether they comply with the procedural requirements of CWA Section 401
and the 401 Certification Rule. Id. at 121.9. Among other issues, EPA
is concerned that a federal agency's review may result in a state or
tribe's certification or conditions being permanently waived as a
result of nonsubstantive and easily fixed procedural concerns
identified by the federal agency. EPA is seeking stakeholder input on
the certification action process steps, including but not limited to,
whether there is any utility in requiring specific components and
information for certifications with conditions and denials, whether it
is appropriate for federal agencies to review certifying authority
actions for consistency with procedural requirements or any other
purpose, and if so, whether there should be greater certifying
authority engagement in the federal agency review process including an
opportunity to respond to and cure any deficiencies, whether federal
agencies should be able to deem a certification or conditions as
``waived,'' and whether, and under what circumstances, federal agencies
may reject state conditions.
6. Enforcement. The rule provides that federal agencies are
responsible for enforcing certification conditions that are
incorporated into a federal license or permit. Id. at 121.11(c). The
rule does not provide a role for certifying authorities to enforce
certification conditions under federal law. Additionally, the rule
restates the statutory provision that provides certifying authorities
with the ability to inspect certified projects prior to their initial
operation. Id. at 121.11(a). EPA is interested in stakeholder feedback
on enforcement of CWA Section 401, including but not limited to, the
roles of federal agencies and certifying authorities in enforcing
certification conditions, whether the statutory language in CWA Section
401 supports certifying authority enforcement of certification
conditions under federal law, whether the CWA citizen suit provision
applies to Section 401, and the rule's interpretation of a certifying
authority's inspection opportunities.
7. Modifications. The rule removed the 1971 regulation's provision
that allowed for modifications where agreed upon by the certifying
authority, federal agency, and EPA. See 85 FR 42220 (July 13, 2020).
Additionally, the rule prevents certifying authorities from extending
the reasonable period time
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unilaterally, including but not limited to, the use of conditions
intended to reopen a certification (``reopeners''). Among other issues,
EPA is concerned that the rule's prohibition of modifications may limit
the flexibility of certifications and permits to adapt to changing
circumstances. EPA is interested in stakeholder feedback on
modifications and ``reopeners,'' including but not limited to, whether
the statutory language in CWA Section 401 supports modification of
certifications or ``reopeners,'' the utility of modifications (e.g.,
specific circumstances that may warrant modifications or
``reopeners''), and whether there are alternate solutions to the issues
that could be addressed by certification modifications or ``reopeners''
that can be accomplished through the federal licensing or permitting
process.
8. Neighboring jurisdictions. The rule addresses the so-called
``neighboring jurisdiction'' process in CWA Section 401(a)(2),
including interpreting the timeframe in which a federal agency must
notify EPA for purposes of Section 401(a)(2) and providing process
requirements for the agency's analysis and the neighboring
jurisdictions' review and response. EPA is interested in stakeholder
feedback on the neighboring jurisdiction process, including but not
limited to, whether the agency should elaborate in regulatory text or
preamble on considerations informing its analysis under CWA Section
401(a)(2), whether the agency's decision whether to make a
determination under CWA Section 401(a)(2) is wholly discretionary, and
whether the agency should provide further guidance on the Section
401(a)(2) process that occurs after EPA makes a ``may affect''
determination.
9. Data and other information. EPA is interested in receiving any
data or information from stakeholders about the application of the 401
Certification Rule, including but not limited to, impacts of the rule
on processing certification requests, impacts of the rule on
certification decisions, and whether any major projects are anticipated
in the next few years that could benefit from or be encumbered by the
401 Certification Rule's proceedural requirements. Additionally, EPA is
interested in stakeholder feedback about existing state CWA Section 401
procedures, including whether the agency should consider the extent to
which any revised rule might conflict with existing state CWA Section
401 procedures and place a burden on those states to revise rules in
the future.
10. Implementation coordination. EPA is interested in hearing from
stakeholders about facilitiating implementation of any rule revisions.
For example, given the relationship between federal provisions and
state processes for water quality certification, should EPA consider
specific implementation timeframes or effective dates to allow for
adoption and integration of water quality provisions at the state
level. Similarly, EPA is interested in receiving feedback on whether
concomitant regulatory changes should be proposed and finalized
simultaneously by relevant federal agencies (e.g., the Army Corps of
Engineers, Federal Energy Regulatory Commission) so that implementation
of revised water certification provisions would be more effectively
coordinated and would avoid circumstances where regulations could be
interpreted as inconsistent with one another.
Outreach
EPA is aware that CWA Section 401 and the 401 Certification Rule
are of interest to many states, tribes, federal agencies, project
proponents, and the public because of the relationship between water
quality certifications and federal licensing and permitting processes.
As a result, EPA wants to ensure that it has the opportunity to
consider stakeholder input prior to revising the 401 Certification
Rule. EPA intends to have multiple webinar-based listening sessions to
solicit feedback on potential approaches to revise the 401
Certification Rule. During these listening sessions, EPA will provide
background information on the prior rulemaking effort. Stakeholders
will have the opportunity to provide input to EPA on the topics
provided above and any other relevant information on the 401
Certification Rule for the agency's consideration. Information on the
listening session dates, times, and registration instructions will be
made available on EPA's website, located at https://www.epa.gov/cwa-401. Persons or organizations wishing to provide verbal input during a
listening session will be selected on a first-come, first-served basis,
with consideration given to hearing from different stakeholder groups.
Due to the expected number of participants, individuals will be asked
to limit their oral presentation to three minutes. Further instructions
on signing up and participating in listening sessions will be made
available on EPA's website above at a later date. Supporting materials
and written feedback from those who do not have an opportunity to speak
can be submitted to the docket as described above.
Michael S. Regan,
Administrator.
[FR Doc. 2021-11513 Filed 6-1-21; 8:45 am]
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