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Federal Register / Vol. 86, No. 58 / Monday, March 29, 2021 / Rules and Regulations certification, filed in connection with a requested Commission-issued section 7
certificate of public convenience and necessity or section 3 authorization under the Natural Gas Act, to grant or deny the request.
The rule will become effective June 28, 2021.

DATES:

FOR FURTHER INFORMATION CONTACT:

David Swearingen Technical Information, Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, 202 502
6173, david.swearingen@ferc.gov Karin Larson Legal Information, Office of the General Counsel, Federal Energy Regulatory Commission, 888
First Street NE, Washington, DC

16299

20426, 202 5028236, karin.larson@
ferc.gov Rachael Warden Legal Information, Office of the General Counsel, Federal Energy Regulatory Commission, 888
First Street NE, Washington, DC
20426, 202 5028717, rachael.warden@ferc.gov SUPPLEMENTARY INFORMATION:
Table of Contents Paragraph Nos.

I. Background
II. Notice of Proposed Rulemaking
III. Discussion
A. Setting Case-by-Case Periods of Time for Certifying Authorities To Act
B. Flexibility for Certifying Authorities To Act
C. Binding Effect on Other Agencies
D. Clarification of Notification in the Case of Waiver
IV. Regulatory Requirements
A. Information Collection Statement
B. Environmental Analysis
C. Regulatory Flexibility Act
D. Document Availability
E. Effective Date and Congressional Notification

I. Background 1. Section 401 of the Clean Water Act CWA 1 is a direct grant of authority to states 2 to review for compliance with appropriate federal, state, and tribal water quality requirements any discharge into a water of the United States that may result from a proposed activity that requires a federal license or permit. Section 401a1 of the CWA
requires that an applicant for a federal license or permit to conduct activities that may result in a discharge into the navigable waters of the United States, such as a Federal Energy Regulatory Commission Commission hydroelectric project license, or a Natural Gas Act NGA certificate of public convenience and necessity for a natural gas pipeline, or an authorization for an LNG terminal, must provide the federal permitting agency a water quality certification from the state in which the discharge originates or evidence of waiver thereof.3 Pursuant to the CWA, if the state fails or refuses to act on a request for certification, within a reasonable period of time which shall not exceed one year after receipt of such request, then certification is waived.4
2. The Commissions practice has been to deem the one-year waiver period to commence when the certifying 1 33

U.S.C. 1341a1.
tribes that have been approved for treatment as a state status may also have the authority under section 401 to issue water quality certifications.
3 33 U.S.C. 1341a1.
4 Id.
2 Indian
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agency receives the request. In 1987, the Commission promulgated subsections 4.34b5iii and 5.23b2 5 of its regulations governing hydropower licensing proceedings to provide that a certifying agency is deemed to have waived certification if it has not denied or granted certification by one year after the date it received a written certification request.6 Accordingly, subsections 4.34b5iii and 5.23b2 7 of the Commissions regulations establish for hydroelectric projects a categorical reasonable period of time of one year.
3. While no comparable regulation exists for NGA infrastructure proceedings, the Commissions practice is to also categorically apply a one-year waiver period for water quality certification applications filed in connection to a proposed natural gas or liquefied natural gas infrastructure project application.8
5 18 CFR 4.34b5iii and 5.23b2. Part 4 of the Commissions regulations governs applicants using the traditional licensing process and part 5
governs applicants using the integrated license application process.
6 Waiver of the Water Quality Certification Requirements of Section 401a1 of the Clean Water Act, Order No. 464, FERC Stats. & Regs.
30,730 1987 cross-referenced at 38 FERC
61,146.
7 18 CFR 4.34b5iii and 5.23b2.
8 Constitution Pipeline Co., LLC, 162 FERC
61,014, at P 16 explaining that since 1987 the Commission has consistently determined, both by regulation and in our orders on proposed projects, that the reasonable period of time for action under section 401 is one year after the date the certifying agency receives a request for certification, rehg denied, 164 FERC 61,029 2018.

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II. Notice of Proposed Rulemaking 4. On September 9, 2020, the Commission issued a Notice of Proposed Rulemaking NOPR
proposing to codify the Commissions practice and establish a categorical waiver period of one year for water quality certification applications filed in connection with a proposed natural gas or liquefied natural gas infrastructure project application.9 In response to the NOPR, the Commission received five comments. The Interstate Natural Gas Association of America INGAA,10 U.S.
Department of the Interior Interior, National Fuel Gas Supply Corporation and Empire Pipeline, Inc. collectively, 9 Waiver of the Water Quality Certification Requirements of Section 401a1 of the Clean Water Act, 85 FR 66287, 172 FERC 61,213 Oct.
19, 2020 NOPR. As explained in the NOPR, part of the impetus for establishing a categorical waiver period was the executive order entitled Promoting Energy Infrastructure and Economic Growth. Exec.
Order 13868 of Apr. 10, 2019, 84 FR 15495 Apr.
15, 2019. Executive Order 13868 directed the Environmental Protection Agency EPA to update its regulations governing water quality certification under CWA section 401 and mandated that section 401 implementing agencies, such as the Commission, initiate a rulemaking to ensure their respective agencies regulations are consistent with the EPAs final rule and with the policies set forth in the executive order. 84 FR at 15496. Executive Order 13868 was revoked on January 20, 2021, by the executive order entitled Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis. Exec. Order 13990 of Jan. 20, 2021, 86 FR 7037, 7041 Jan. 25, 2021.
Because this final rule will simply codify the Commissions existing, long-standing practice, described above, and is not premised on the EPAs final rule, this rule is not affected by E.O. 13868.
10 INGAA is a trade association representing 26
interstate natural gas transmission pipeline systems.

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