[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

[[Page 29544]]

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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