FERC Issues Final Rule on Clean Water Act Section 401 Water Quality Certification Requirements
The Federal Energy Regulatory Commission (“FERC”) issued a final rule on Nov. 21, 2024, establishing a categorical one-year “reasonable period of time” for certifying authorities to act on requests for water quality certification under section 401 of the Clean Water Act (“CWA”). Also clarified within the final rule, is all FERC authorizations “that have the potential to discharge into waters of the United States,” including hydropower exemptions, amendments, and surrenders, require either a section 401 water quality certification or waiver thereof.
“Section 401 of the CWA provides that a federal agency may not issue a federal license or other authorization for a project or activity that may result in a discharge into waters of the United States unless the appropriate state or tribal water quality certifying authority either grants certification under section 401 or waives its authority to do so,” stated a JD Supra article by Troutman Pepper Locke associates. “Section 401 provides that 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 the certification is waived.”
According to JD Supra, On September 14, 2023, the Environmental Protection Agency (“EPA”) issued a final rule that significantly revised its regulations implementing section 401 of the CWA (“2023 EPA Final Rule”). While the most significant revisions of the 2023 EPA Final Rule expanded the scope of certifying agencies’ authority to impose conditions in water quality certifications (see Troutman’s full summary of the Final Rule here), EPA also sought comments on several other provisions, including the appropriate “reasonable period of time” for certifying authorities to act on requests for water quality certifications. Prior to the 2023 EPA Final Rule, the Federal licensing or permitting agency would set the reasonable period of time for certifying authorities to act. The 2023 EPA Final Rule, however, allowed the federal agency and certifying authority to agree on the length of the reasonable period of time, but provided that if the parties do not reach agreement, then the default reasonable period of time is six months. It also provides that a federal agency may establish a one-year reasonable period of time (the statutory maximum) by regulation and use that one year as the reasonable period of time when working with certifying authorities.
