[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

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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.

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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

[[Page 48356]]

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