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Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Proposed Rules 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 121.5b or c. Id. at 121.1c. 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 121.5b 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 proponents 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
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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 rules 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 401a and the scope of certification conditions under CWA Section 401d, 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 121.1n. Among other issues, EPA is concerned that the rules 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 rules 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
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conditions or denying certification. Id.
at 121.7ce. 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 agencys review may result in a state or tribes 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 121.11c. 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 121.11a. 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 rules interpretation of a certifying authoritys inspection opportunities.
7. Modifications. The rule removed the 1971 regulations provision that allowed for modifications where agreed upon by the certifying authority, federal agency, and EPA. See 85 FR 42220 July 13, 2020. Additionally, the rule prevents certifying authorities from extending the reasonable period time
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