[Federal Register Volume 89, Number 110 (Thursday, June 6, 2024)]
[Proposed Rules]
[Pages 48351-48356]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11896]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 4, 5, 6, 7
[Docket No. RM24-5-000]
Establishment of Categorical Reasonable Period of Time for Action
on Requests for Water Quality Certification Under Section 401(a)(1) of
the Clean Water Act and Clarifying Types of Hydroelectric Project
Proceedings That May Require Water Quality Certification
AGENCY: Federal Energy Regulatory Commission, Department of Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: In this proposed rule, the Federal Energy Regulatory
Commission (Commission) amends its regulations to clarify that for all
proceedings before the Commission that require a water quality
certification pursuant to section 401(a)(1) of the Federal Water
Pollution Control Act (Clean Water Act), the reasonable period of time
during which the certifying authority may act on the water quality
certification request is one year from the certifying authority's
receipt of the request. The proposed rule also clarifies that all
Commission authorizations that have the potential to discharge into
waters of the United States require a section 401 water quality
certification or waiver, including hydropower exemptions, amendments,
and surrenders. Finally, the proposed rule provides updated terminology
in the Commission's hydropower regulations and updates the timing of
the filing requirements for the Commission's expedited hydropower
licensing process.
DATES: Comments are due July 8, 2024.
ADDRESSES: You may send comments, identified by RM24-5-000, by either
of the following methods:
Agency website: Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format.
Mail: Those unable to file electronically may mail
comments to: Federal Energy Regulatory Commission, Secretary of the
Commission, 888 First Street NE, Washington, DC 20426. Hand-delivered
comments should be delivered to Health and Human Services, 12225
Wilkins Avenue, Rockville, Maryland 20852.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Comment
Procedures section of this document.
FOR FURTHER INFORMATION CONTACT:
Amber Leasure-Earnhardt (Legal Information), Office of the General
Counsel, Federal Energy Regulatory Commission, 888 First Street NE,
Washington, DC 20426, (202) 502-6891, [email protected]
Miranda Millerick (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8781, [email protected]
Michael Tust (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-6522
Jody Callihan (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8278
Andrea Claros (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8171
SUPPLEMENTARY INFORMATION:
Table of Contents
Paragraph Numbers
I. Background--2
II. Proposed Revisions--6
III. Regulatory Requirements--9
A. Information Collection Statement--9
B. Environmental Analysis--10
C. Regulatory Flexibility Act--11
D. Comment Procedures--13
E. Document Availability--14
I. Background
A. Clean Water Act Section 401
1. Section 401 of the Clean Water Act (CWA) is a direct grant of
authority to states and authorized Tribes \1\ (i.e., certifying
authorities) to review for compliance with appropriate federal, state,
and Tribal water quality requirements any discharge into waters of the
United States that may result from a proposed activity that requires a
federal license or permit.\2\ Section 401(a)(1) of the CWA prohibits a
federal agency from issuing a federal license, permit, or other
authorization for a project or activity that may result in a discharge
into waters of the United States, such as a Federal Energy Regulatory
Commission (Commission) order issuing a license for a hydroelectric
project or order authorizing an amendment or surrender of a license,
unless the appropriate certifying authority either grants certification
or waives its certification authority.\3\ Under the Clean Water Act, 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.\4\
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\1\ ``Authorized Tribes'' refers to Indian Tribes that have been
approved for ``treatment as a state'' status under the CWA.
Authorized Tribes may also have the authority under section 401 to
issue water quality certifications.
\2\ 33 U.S.C. 1341(a)(1).
\3\ Id.
\4\ Id.
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2. The January 2021 Executive Order 13990 entitled Protecting
Public Health and the Environment and Restoring Science to Tackle the
Climate Crisis,
[[Page 48352]]
among other things directed the Environmental Protection Agency (EPA)
to review the water quality certification rule EPA promulgated in 2020
under section 401 of the CWA.\5\ In compliance with the Executive
Order, on September 14, 2023, the EPA issued a final 2023 Clean Water
Act Section 401 Water Quality Certification Improvement Rule
(Certification Improvement Rule),\6\ which revised its regulations
under 40 CFR part 121.\7\ The Certification Improvement Rule applies
prospectively to all actions after the effective date of the rule.
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\5\ Exec. Order No. 13990, 86 FR 7037 (Jan. 25, 2021). EPA
issued the Clean Water Act Section 401 Certification Rule on June 1,
2020. 85 FR 42210 (July 13, 2020).
\6\ 88 FR 66558 (Sept. 27, 2023).
\7\ The rule was published in the Federal Register on September
27, 2023, and became effective 60 days after publication on November
27, 2023.
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B. Reasonable Period of Time
3. Regarding the statutory reasonable period of time in which a
certifying authority must act on a request for certification, section
121.6(b) of the Certification Improvement Rule contemplates that the
federal agency and certifying authority will establish a reasonable
period of time on a case-by-case basis. If the federal agency and
certifying authority do not agree, the rule sets a six-month default
reasonable period of time.\8\ The rule, however, also provides that if
a federal agency establishes a one-year reasonable period of time by
regulation, the maximum time allowed under the CWA, the federal agency
may use that one year as the reasonable period of time without
negotiating with certifying authorities.\9\
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\8\ 88 FR 66663.
\9\ Id. at 66588.
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4. With respect to licensing proceedings, the Commission
promulgated regulations providing for a categorical one-year reasonable
period of time for action by a certifying authority, as reflected in
subsection 4.34(b)(5)(iii) of its regulations in 1987,\10\ subsection
5.23(b)(2) of its regulations in 2003,\11\ and subsection 7.2(b)(3)(ii)
of its regulations in 2019.\12\ Although it is the Commission's
practice to apply a one-year reasonable period of time for water
quality certification applications in all hydropower proceedings where
they are required,\13\ the current regulations are silent as to certain
FPA proceedings, including those regarding hydropower exemptions (a
subcategory of licensing proceedings), amendments to hydropower
licenses, or surrenders of hydropower licenses, some of which may
trigger CWA section 401.
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\10\ 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); 18
CFR 4.34(b)(5)(iii). Part 4 of the Commission's regulations governs
applicants using the traditional licensing process and the
alternative licensing process.
\11\ Hydroelectric Licensing Under the Fed. Power Act, Order No.
2002, 68 FR 51070 (Aug. 25, 2003), Order No. 2002-A, 69 FR 5268
(Feb. 4, 2004), 104 FERC ] 61,109 (2003), order on reh'g, 106 FERC ]
61,037 (2004); 18 CFR 5.23(b)(2). Part 5 governs applicants using
the integrated licensing process.
\12\ Hydroelectric Licensing Reguls. Under the Am.'s Water
Infrastructure Act of 2018, Order No. 858, 84 FR 17064 (Apr. 24,
2019), 167 FERC ] 61,050 (2019); 18 CFR 7.2(b)(3)(ii). Part 7
governs applicants using the expedited licensing process for
qualifying non-federal hydropower projects at existing nonpowered
dams and for closed-loop pumped storage projects.
\13\ In 2021, the Commission also promulgated subsections 153.4
and 157.22(b) of its regulations governing Liquified Natural Gas
(LNG) facilities and natural gas pipelines, respectively, to
establish a categorical ``reasonable period of time'' of one year
for a certifying authority to act on a certification request. 18 CFR
153.4, 157.22(b); Waiver of the Water Quality Certification
Requirements of Section 401(a)(1) of the Clean Water Act, 174 FERC ]
61,196 (2021).
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C. Hydropower Exemptions
5. Currently, the Commission's regulations do not specify that
hydropower exemption applicants must obtain a water quality
certification or waiver if the proposed project may result in a
discharge into waters of the United States. The Commission stated in
its preamble to the 1980 rule establishing the 5-MW exemption that
there is no applicable section 401 requirement where there is no
license.\14\ This unsupported statement implied, incorrectly, that an
exemption is not a federal license or permit subject to CWA section
401.\15\ Subsequently, in 1987, the Commission explained in its
response to comments for its final rule promulgating the Commission's
part 4 regulations for waiver of water quality certification
requirements that, although the Commission had not required applicants
for exemptions to obtain water quality certification, it would consider
changing its practice in a later rulemaking.\16\ As matter of practice,
the Commission incorporates water quality certification conditions into
final exemption orders when a certification is issued by the relevant
certifying authority.\17\
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\14\ Exemption from All of Part of Part 1 of the Fed. Power Act
of Small Hydroelectric Power Projects with an Installed Capacity of
5 Megawatts of Less, Order No. 106, FERC Stats. & Regs. ] 30,204, at
31,368 (1980) (cross-referenced at 13 FERC ] 61,116). The
Commission's hydropower exemption regulations were revised in 2014
to increase the maximum installed capacity for eligible small
hydroelectric power projects from 5 MW to 10 MW. Revisions & Tech.
Corrections To Conform the Commission's Reguls. to the Hydropower
Regul. Efficiency Act of 2013, Order No. 800, 148 FERC ] 61,197
(2014); see also 18 CFR 4.101-4.108. The Commission also issues
exemptions for qualifying conduit hydroelectric projects, pursuant
to section 30 of the FPA, as amended. See 18 CFR 4.90-4.96.
\15\ The Commission's prior statement in a preamble does not
supersede the statutory mandate under Section 401(a) of the CWA.
\16\ Order No. 464, FERC Stats. & Regs. ] 30,730 at 30,546.
\17\ See, e.g., City of Nashua, New Hampshire, 182 FERC ]
62,009, at PP 12-14 (2023) (stating that ``[u]nder Section 401(a) of
the Clean Water Act (CWA), the Commission may not authorize
construction or operation of a hydroelectric project that may result
in a discharge into the navigable waters of the United States unless
the state water quality certifying agency either has issued water
quality certification for the project or has waived
certification''); New England Hydropower Co., LLC, 155 FERC ]
62,132, at P 13 (2016) (making the water quality certification
conditions mandatory conditions of the exemption); Charlie Hotchkin
& Claire Fay, 132 FERC ] 62,037, at P 7 (2010) (same).
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6. The proposed rule clarifies that because an exemption is a
federal permit, section 401 of the CWA applies where the project has
the potential to discharge into waters of the United States.
II. Proposed Revisions
A. Reasonable Period of Time
7. This proposed rule clarifies that, for all proceedings before
the Commission that require water quality certification, the reasonable
period of time for a certifying authority to act on the certification
request is one year from the certifying authority's receipt of the
request. This proposed rule is consistent with EPA's proviso that
federal agencies may establish a categorical one-year reasonable period
of time in their regulations. The Commission's proposed rule promotes
administrative efficiency because there would be no need to negotiate
with the certifying authority in every case where a section 401 water
quality certification is required. As the Commission has previously
stated, we continue to believe that the benefits of setting a
categorical one-year reasonable period of time for a certifying
authority to act on a request for certification best serves the public
interest by providing certainty and consistency for all Commission
hydropower proceedings in which a section 401 certification is
required.\18\
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\18\ See Waiver of the Water Quality Certification Requirements
of Section 401(a)(1) of the Clean Water Act, 174 FERC ] 61,196;
Order No. 464, FERC Stats. & Regs. ] 30,730.
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8. Thus, by revising the Commission's regulations in parts 4 and 6
to cover all proceedings before the Commission that require a section
401 water quality certification, all proceedings will now be governed
by the same reasonable period of time and be consistent with
[[Page 48353]]
the regulations currently governing applicants for hydropower
licenses.\19\
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\19\ See also supra note 13.
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B. Hydropower Exemptions
9. The proposed rule explicitly incorporates applications for an
exemption from licensing under the water quality certification
requirements in part 4 of the Commission's regulations to remove any
uncertainty as to whether an applicant for an exemption should apply to
a certifying authority for a water quality certification if the
proposed project may result in a discharge into waters of the United
States. This proposed change clarifies that because exemptions are
federal permits, CWA section 401 applies to such projects.
C. Terminology and Part 7 Filing Requirements
10. The Commission's proposed rule updates the term ``certifying
agency'' previously used in the Commission's regulations in parts 4, 5,
and 7 to ``certifying authority,'' which is the defined term EPA uses
in its regulations to describe the entity responsible for certifying
compliance with applicable water quality requirements under CWA section
401.\20\ The proposed rule also incorporates the term ``express''
waiver into the Commission's regulations in parts 4, 5, and 7, to
reflect the four ways that a certifying authority may act on a request
for certification, pursuant to 40 CFR 121.7.\21\ These proposed changes
will align the Commission's regulatory terminology with the EPA's
regulatory terminology for clarity and consistency.
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\20\ 88 FR 66662; 40 CFR 121.1(b). We note that there are other
parts of the Commission's regulations that use the term ``certifying
agency'' in the context of section 401 that this NOPR is not
proposing to update. Therefore, we clarify in this proposed rule
that these two terms will be used interchangeably throughout the
Commission's regulations.
\21\ Section 121.7 of the EPA's regulations stipulates that a
certifying authority may act on a request for certification in one
of four ways: grant certification, grant certification with
conditions, deny certification, or expressly waive certification.
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11. Finally, the proposed rule changes the timing of the filing
requirements under part 7 of the Commission's regulations for the
expedited licensing process. Current section 7.2(3) of the Commission's
regulations requires that an application to the Commission under part 7
must include either a copy of the request for a water quality
certification, the issued certification, or evidence of waiver of the
certification.\22\ That requirement conflicts with the EPA's
Certification Improvement Rule, which requires any request for a water
quality certification to include a copy of the final application for
the federal license or permit.\23\ To avoid this conflict, the
Commission is proposing that an applicant under part 7 must file within
60 days of its application with the Commission a copy of the
certification request, certification, or the certifying authority's
express waiver.
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\22\ 18 CFR 7.2(3).
\23\ 40 CFR 121.5(a)(1)(i).
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III. Regulatory Requirements
A. Information Collection Statement
12. The Paperwork Reduction Act \24\ 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 proposed rules published in the Federal
Register.\25\ This proposed rule does not impose new information
collection requirements on ten or more persons.\26\ If a proposed
exemption project has the potential to discharge into waters of the
United States, the proposed regulations will make it clear that an
exemption applicant would be required to file either a copy of the
water quality certification or the certifying authority's express
waiver, a copy of the request for certification, or notification that
the certifying authority failed to act. The exemption applicants would
not need to create a new document or fill out a form, rather they are
just submitting to the Commission a copy of the certifying authority's
response or informing the Commission that the certifying authority has
failed to act within one year. Over the last ten years, the Commission
received an average of less than two exemption applications per year.
The directives to submit exemptions for certification or evidence of
waiver of water quality certification are covered by and already
included in, the existing OMB-approved information collection FERC-505
(Small Hydropower Projects and Conduit Facilities including License/
Relicense, Exemption, and Qualifying Conduit Facility Determination;
OMB Control No. 1902-0115).
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\24\ 44 U.S.C. 3501-3521.
\25\ See 5 CFR 1320.11.
\26\ The proposed rule does not impose any new information
collection requirements on license, amendment, and surrender
applicants, nor certifying authorities. The rule clarifies the
filing requirements for exemption applicants who need a water
quality certification.
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B. Environmental Analysis
13. 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.\27\ 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.\28\ This proposed rule proposes to
categorically establish a reasonable period of time for a certifying
authority to act on a water quality certification request for a
license, exemption, amendment, or surrender application of a
hydroelectric project pending with the Commission. The proposed rule
also updates the term ``certifying agency'' to ``certifying
authority,'' incorporates the term ``express'' waiver to reflect the
four ways a certifying authority may act on a request for certification
and revises the requirements under part 7 to permit compliance with
both EPA's and the Commission's regulations. Because this proposed rule
is procedural in nature, preparation of an Environmental Assessment or
an Environmental Impact Statement is not required.
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\27\ Reguls. Implementing the Nat'l Env't Pol'y Act of 1969,
Order No. 486, 41 FERC ] 61,284 (1987).
\28\ 18 CFR 380.4(a)(2)(ii).
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C. Regulatory Flexibility Act
14. The Regulatory Flexibility Act of 1980 (RFA) \29\ generally
requires a description and analysis of proposed 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 proposed rule and minimize any
significant economic impact on a substantial number of small
entities.\30\ In lieu of preparing a regulatory flexibility analysis,
an agency may certify that a proposed rule will not have a significant
economic impact on a substantial number of small entities.\31\ The
Small Business Administration's (SBA) Office of Size Standards develops
the numerical definition of a small business.\32\ The SBA size standard
for hydroelectric power generation is based on the number of employees,
including
[[Page 48354]]
affiliates.\33\ Under SBA's size standards, a hydroelectric power
generator is small if, including its affiliates, it employs 750 or
fewer people.\34\
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\29\ 5 U.S.C. 601-612.
\30\ Id. 603(c).
\31\ Id. 605(b).
\32\ 13 CFR 121.101.
\33\ Id. 121.201, subsection 221.
\34\ Id.
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15. If enacted, this proposed rule would apply to entities, a small
number of which may be small businesses, with an application for a
license, exemption, amendment, or surrender of a hydroelectric project
pending with the Commission that requires a water quality certification
under section 401(a)(1) of the CWA. However, the proposed rule would
not have a significant economic impact on these entities, regardless of
their status as a small entity or not, as the proposed rule (1) updates
terminology and the timing of filing requirements to be consistent with
EPA regulations; (2) clarifies what and when an exemption applicant
must file if the proposed project triggers CWA section 401; and (3)
establishes a categorical one year period of time for a certifying
authority to act on a request for a water quality certification for
hydroelectric proceedings in which the proposed activity may result in
a discharge into waters of the United States triggering section
401(a)(1) of the CWA.
16. Accordingly, pursuant to section 605(b) of the RFA, the
Commission certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
D. Comment Procedures
17. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice to be adopted, including
any related matters or alternative proposals that commenters may wish
to discuss. Comments are due July 8, 2024. Comments must refer to
Docket No. RM24-5-000, and must include the commenter's name, the
organization they represent, if applicable, and their address.
18. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
19. Commenters that are not able to file comments electronically
must send an original of their comments to: Secretary, Federal Energy
Regulatory Commission, 12225 Wilkins Avenue, Rockville, Maryland 20852.
20. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
E. Document Availability
21. 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).
22. 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.
23. 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].
List of Subjects
18 CFR Part 4
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 5
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
18 CFR Part 6
Electric power, Reporting and recordkeeping requirements.
18 CFR Part 7
Administrative practice and procedure, Electric power, Reporting
and recordkeeping requirements.
By direction of the Commission.
Issued: May 23, 2024.
Debbie-Anne A. Reese,
Acting Secretary.
In consideration of the foregoing, the Commission is proposing to
amend Parts 4, 5, 6, and 7 Chapter I, Title 18, Code of Federal
Regulations, as follows:
PART 4--LICENSES, PERMITS, EXEMPTIONS, AND DETERMINATION OF PROJECT
COSTS
0
1. The authority citation for part 4 continues to read as follows:
Authority: 16 U.S.C. 791a-825r; 42 U.S.C. 7101-7352.
0
2. Amend Sec. 4.34 by revising paragraph (b)(5) to read as follows:
Sec. 4.34 Hearings on applications; consultation on terms and
conditions; motions to intervene; alternative procedures.
* * * * *
(b) * * *
(5)(i) With regard to certification requirements under section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act)
for an application for a license or exemption from licensing, an
applicant shall file within 60 days from the date of issuance of the
notice of ready for environmental analysis:
(A) A copy of the water quality certification or the certifying
authority's express waiver;
(B) A copy of the request for certification, including proof of the
date on which the certifying authority received the request; or
(C) Evidence of waiver of water quality certification as described
in paragraph (b)(5)(iii) of this section.
(ii) In the case of an application process using the alternative
procedures of paragraph 4.34(i), the filing requirement of paragraph
(b)(5)(i) shall apply upon issuance of notice the Commission has
accepted the application as provided for in paragraph 4.32(d) of this
part.
(iii) A certifying authority is deemed to have waived the
certification requirements of section 401(a)(1) of the Clean Water Act
if the certifying authority has not denied, expressly waived, or
granted certification by one year after the date the certifying
authority received a written request for certification. If a certifying
authority denies certification, the applicant must file a copy of the
denial within 30 days after the applicant received it.
* * * * *
0
3. Amend Sec. 4.201 by adding paragraph (e) to read as follows:
Sec. 4.201 Contents of application.
* * * * *
(e) For any amendment that requires certification under section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act),
a certifying authority is deemed to have waived the certification
requirements of section 401(a)(1) of the Clean Water Act if the
certifying authority has not denied,
[[Page 48355]]
expressly waived, or granted certification by one year after the date
the certifying authority received a written request for certification.
PART 5--INTEGRATED LICENSE APPLICATION PROCESS
0
4. The authority citation for part 5 continues to read as follows:
Authority: 16 U.S.C. 792-828c, 2601-2645; 42 U.S.C. 7101-7352.
0
5. Amend Sec. 5.23 by revising paragraph (b) to read as follows:
Sec. 5.23 Response to notice.
* * * * *
(b) Water quality certification.
(1) With regard to certification requirements under section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act),
the license applicant shall file within 60 days from the date of
issuance of the notice of ready for environmental analysis:
(i) A copy of the water quality certification or the certifying
authority's express waiver;
(ii) A copy of the request for certification, including proof of
the date on which the certifying authority received the request; or
(iii) Evidence of waiver of water quality certification as
described in paragraph (b)(2) of this section.
(2) A certifying authority is deemed to have waived the
certification requirements of section 401(a)(1) of the Clean Water Act
if the certifying authority has not denied, expressly waived, or
granted certification by one year after the date the certifying
authority received a written request for certification. If a certifying
authority denies certification, the applicant must file a copy of the
denial within 30 days after the applicant received it.
(3) Notwithstanding any other provision in 18 CFR part 4, subpart
B, any application to amend an existing license, and any application to
amend a pending application for a license, requires a new request for
water quality certification pursuant to Sec. 4.34(b)(5) of this
chapter if the amendment would have a material adverse impact on the
water quality in the discharge from the project or proposed project.
PART 6--SURRENDER OR TERMINATION OF LICENSE
0
6. The authority citation for part 6 continues to read as follows:
Authority: Secs. 6, 10(i), 13, 41 Stat. 1067, 1068, 1071, as
amended, sec. 309, 49 Stat. 858; 16 U.S.C. 799, 803(i), 806, 825h;
Pub. L. 96-511, 94 Stat. 2812 (44 U.S.C. 3501 et seq.), unless
otherwise noted.
0
7. Revise Sec. 6.1 to read as follows:
Sec. 6.1 Application for surrender.
(a) Every application for surrender of a license shall state the
reason therefor; and, except in the case of an application for
surrender of a license for a minor project, or for a transmission line
only, shall be executed by the licensee and filed in the same form and
manner as the application for license, and shall be accompanied by the
license and all amendments thereof. Public notice of such application
shall be given at least 30 days prior to action upon the application.
(b) For any surrender that requires certification under section
401(a)(1) of the Federal Water Pollution Control Act (Clean Water Act),
a certifying authority is deemed to have waived the certification
requirements of section 401(a)(1) of the Clean Water Act if the
certifying authority has not denied, expressly waived, or granted
certification by one year after the date the certifying authority
received a written request for certification.
PART 7--EXPEDITED LICENSING PROCESS FOR QUALIFYING NON-FEDERAL
HYDROPOWER PROJECTS AT EXISTING NONPOWERED DAMS AND FOR CLOSED-LOOP
PUMPED STORAGE PROJECTS
0
8. The authority citation for part 7 continues to read as follows:
Authority: 16 U.S.C. 791a-825r; Pub. L. 115-270, 132 Stat.
3765.
0
9. Revise Sec. 7.2 to read as follows:
Sec. 7.2 Use of expedited licensing process.
(a) In order to pursue the expedited licensing process, an
applicant must request authorization for the expedited process, as
provided for in paragraph (b) of this section. The licensing procedures
in this part do not apply to an application for a new or subsequent
license.
(b) Requirement to consult.
(1) Before it files any application for an original license for a
qualifying non-federal hydropower project at an existing nonpowered dam
or for a closed-loop pumped storage project pursuant to sections 34 and
35 of the Federal Power Act, a potential applicant must consult with
the relevant Federal, State, and interstate resource agencies,
including the National Marine Fisheries Service, the United States Fish
and Wildlife Service, the National Park Service, the United States
Environmental Protection Agency, the Federal agency administering any
federal lands or facilities utilized or occupied by the project, the
appropriate State fish and wildlife agencies, the appropriate State
water resource management agencies, the certifying authority under
section 401(a)(1) of the Federal Water Pollution Control Act (Clean
Water Act), 33 U.S.C. 1341(c)(1), the agency that administers the
Coastal Zone Management Act, 16 U.S.C. 1451-1465, any Indian Tribe that
may be affected by the proposed project, and members of the public.
(2) The Director of the Office of Energy Projects will, upon
request, provide a list of known appropriate Federal, state, and
interstate resource agencies, and Indian tribes, and local, regional,
or national non-governmental organizations likely to be interested in
any license application proceeding.
(c) An application that accompanies a request for authorization to
use the expedited licensing process must include the information
specified below.
(1) Section 34 of the Federal Power Act qualification--projects at
nonpowered dams. The application must demonstrate that the proposed
facility meets the following qualifications pursuant to section 34(e)
of the Federal Power Act:
(i) As of October 23, 2018, the proposed hydropower facility was
not licensed under or exempted from the license requirements contained
in Part I of the Federal Power Act;
(ii) The facility will be associated with a qualifying nonpowered
dam;
(iii) The facility will be constructed, operated, and maintained
for the generation of electric power;
(iv) The facility will use for such generation any withdrawals,
diversions, releases, or flows from the associated qualifying
nonpowered dam, including its associated impoundment or other
infrastructure; and
(v) The operation of the facility will not result in any material
change to the storage, release, or flow operations of the associated
qualifying nonpowered dam.
(2) Section 35 of the Federal Power Act qualification--closed-loop
pumped storage projects. The application must demonstrate that the
proposed closed-loop pumped storage project meets the following
qualifications pursuant to section 35(g)(2) of the Federal Power Act:
(i) The project will cause little to no change to existing surface
and groundwater flows and uses; and
(ii) The project is unlikely to adversely affect species listed as
a threatened species or endangered species, or designated critical
habitat of such species, under the Endangered Species Act of 1973.
(3) Section 401 of the Clean Water Act. The license applicant shall
file
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within 60 days from the filing date of application:
(i) A copy of a request for certification under section 401(a)(1)
of the Clean Water Act, including proof of the date on which the
certifying authority received the request; or
(ii) A copy of water quality certification or the certifying
authority's express waiver.
(4) Evidence of waiver of water quality certification. A certifying
authority is deemed to have waived the certification requirements of
section 401(a)(1) of the Clean Water Act if the certifying authority
has not denied, expressly waived, or granted certification by one year
after the date the certifying authority received a written request for
certification. If a certifying authority denies certification, the
applicant must file a copy of the denial within 30 days after the
applicant receives it.
(5) Endangered Species Act (ESA). The application must include:
(i) A no-effect determination that includes documentation that no
listed species or critical habitat are present in the action area;
(ii) Documentation of concurrence from the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service (Service(s)), as
necessary, that the action is not likely to adversely affect ESA-listed
species or critical habitat; or
(iii) A draft Biological Assessment that includes documentation of
consultation with the Service(s).
(6) Section 106 of the National Historic Preservation Act.
Documentation that section 106 consultation has been initiated with the
state historic preservation officer(s) and any Indian Tribes identified
as having an interest in the project.
(7) Dam owner documentation. For projects to be located at existing
nonpowered dams:
(i) Documentation of consultation with any nonfederal owner of the
nonpowered dam if the applicant is not the owner and confirmation that
the owner is not opposed to a hydropower development at the location;
or
(ii) Documentation from the federal entity that non-federal
hydropower development is not precluded at the proposed location and
confirmation that the federal entity is not opposed to a hydropower
development at the location.
(8) Public parks, recreation areas, and wildlife refuges. If the
project would use any public park, recreation area, or wildlife refuge
established under state or local law, documentation from the managing
entity indicating it is not opposed to the site's use for hydropower
development.
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10. Amend Sec. 7.7 by revising paragraph (a) to read as follows:
Sec. 7.7 Amendment of application.
(a) Any proposed amendments to the pending license application
after issuance of the notice of acceptance and ready for environmental
analysis under this section must include:
(1) An amended or new section 401 of the Clean Water Act water
quality certification or a new certifying authority's express waiver,
if the amendment would have a material adverse impact on the water
quality in the discharge from the proposed project; and
(2) Updates to all other material submitted under Sec. 7.2(c).
* * * * *
[FR Doc. 2024-11896 Filed 6-5-24; 8:45 am]
BILLING CODE 6717-01-P