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Federal Register / Vol. 86, No. 58 / Monday, March 29, 2021 / Rules and Regulations
National Fuel,11 the Natural Gas Supply Association and the Center for LNG collectively, NGSA,12 and a group of state Attorneys General States 13 and California regulatory agencies California Water Boards 14 filed comments. The proposal set forth in the NOPR, the comments received in response to the NOPR, and the Commissions determinations are discussed below.
III. Discussion 5. The NOPR explained that the Commission believes that the benefits of setting a categorical waiver period of one year, as permitted by the CWA, best serves the public interest by avoiding uncertainty associated with open-ended and varying certification deadlines.15
We noted that it would be administratively inefficient and a potential source of controversy to establish reasonable time periods on a case-by-case basis; that state certifying agencies may vary in terms of their procedures for reviewing requests for water quality certification; that natural gas projects before the Commission include highly complex proposals that may well take a state a significant time to review; and that studies of the discharge may at times be warranted.16
6. Given those factors, we found it reasonable to provide the maximum time permitted under the CWA, i.e., a categorical one-year waiver period. The Commission proposed to add this categorical one-year waiver period to its regulations governing applications for authorizations under sections 3 and 7 of the NGA for liquefied natural gas and natural gas facilities in parts 153 and 157.
7. In response to the Commissions request for comments on the NOPR, the States and California Water Boards, 11 National Fuel Gas Supply Corporation and Empire Pipeline, Inc., are interstate pipeline companies that own and operate Commissionregulated pipeline facilities in New York and Pennsylvania.
12 The Natural Gas Supply Association is a trade association focusing on the downstream natural gas industry, and the Center for LNG is a committee of the organization that advocates for public policies that advance the use of LNG.
13 The Attorneys General of Maryland, Connecticut, Illinois, Maine, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and the District of Columbia are represented in the comments.
14 The California State Water Resources Control Board and the nine California Regional Water Quality Control Boards are represented in the comments.
15 NOPR, 172 FERC 61,213 at P 6 citing Order No. 464, FERC Stats. & Regs. 30,730; Constitution Pipeline Co., LLC, 162 FERC 61,014 at PP 1617, 20, rehg denied, 164 FERC 61,029 at P 10.
16 Id.

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NGSA, and INGAA filed supportive comments.17 The States and California Water Boards agree that requests for authorization under sections 3 and 7 of the NGA tend to involve complex projects and support allowing certifying authorities the maximum time permitted under the CWA to act.18
NGSA states that the Commissions proposed rule will provide regulatory consistency and certainty and agrees with the Commissions interpretation that the one-year period for review begins upon the certifying authoritys receipt of a request for section 401 water quality certification.19 INGAA
comments that the proposed regulatory revisions are consistent with the plain reading of the CWA and agrees that it would be inefficient to set the reasonable period of time on a case-bycase basis.20
A. Setting Case-by-Case Periods of Time for Certifying Authorities To Act 8. National Fuel contends that the Commission need not adopt the oneyear period as its categorical reasonable period of time, arguing that simple projects or those that do not raise significant concerns under the CWA
could merit a shorter reasonable period of time.21 National Fuel suggests that an applicant could assist the Commission in identifying such suitable projects.22
9. As the Commission has explained in orders on proposed projects, the establishment of the categorical oneyear waiver period confers substantial benefits to the applicant, the certifying agency, and the Commission, including:
Avoiding the difficulty of having to construe divergent state requirements, including what is a triggering request for certification, which provides certainty to all parties; refraining from intruding on states authority to create and apply procedural regulations; and best serving the public interest by avoiding the uncertainty associated with varying and open-ended certification deadlines.23
17 National Fuel also supports INGAAs comments and supports the Commissions codification of a certification period into its regulations. National Fuels November 18, 2020
Comments at 1.
18 States and California Water Boards November 18, 2020 Comments at 23. The States and California Water Boards also note their continuing objections to the EPAs revisions under 40 CFR part 121, id. at 34, which are outside the scope of this NOPR and final rule.
19 NGSAs November 18, 2020 Comments at 29.
20 INGAAs November 18, 2020 Comments at 3
4.
21 National Fuels November 18, 2020 Comments at 2.
22 Id.
23 See Constitution Pipeline Co., LLC, 162 FERC
61,014 at PP 1617, 20, rehg denied, 164 FERC
61,029 at P 10.

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For those reasons, and because setting varied limits would require additional time and potentially result in controversy, we believe that whatever benefit may be conferred to a particular applicant by considering an alternate waiver period on a case-by-case basis is outweighed by the benefits described above in continuing to adhere to the one-year waiver period. We therefore decline to entertain the proposal to consider case-by-case alternate waiver periods.
B. Flexibility for Certifying Authorities To Act 10. The States and California Water Boards urge the Commission to provide certifying authorities with as much flexibility as possible in completing their section 401 reviews.24
11. As explained above, under 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.25 In categorically establishing a one-year waiver period for water quality certification applications, the Commission is providing states with the maximum time allowed under the statute and therefore the broadest amount of flexibility allowed under the CWA.26
C. Binding Effect on Other Agencies 12. INGAA notes that other agencies have previously determined that a reasonable period of time should generally be less than one year and notes that the Commissions reasonable period of time cannot bind other lead federal permitting agencies.27
13. As relevant to this final rule, the Commission is the lead federal agency for authorizations under sections 3 and 7 of the NGA for liquefied natural gas and natural gas facilities. We recognize that other federal agencies may be lead agency for any number of other types of projects requiring a water quality certification under the CWA, and we are not attempting to bind any other agency with this final rule.
24 States and California Water Boards November 18, 2020 Comments at 4.
25 33 U.S.C. 1341a1.
26 See Placer Cnty. Water Agency, 169 FERC
61,046 2019 explaining that section 401s plain language establishes a bright-line rule that the timeline for a states action regarding a request for certification shall not exceed one year after receipt of such request quoting New York DEC
v. FERC, 884 F.3d 450, 455 2d Cir. 2018.
27 INGAAs November 18, 2020 Comments at 4
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