provided under the CWA to act on a certification request (or else waive
the certification requirements of section 401(a)) provides additional
justification in this context to interpret the term ``request for
certification'' to allow the EPA to require a pre-filing meeting
request.
    Many commenters supported the EPA's proposal to require project
proponents to request pre-filing meetings. Several commenters supported
the proposed pre-filing process where the EPA is the certifying
authority, while others supported extending it to all certifying
authorities. Several commenters stated that such meetings, while useful
for a variety of purposes (e.g., identifying what information may be
needed from a project proponent), should not be mandatory. Other
commenters stated that such meetings should be used only for complex,
non-routine projects. Some commenters asserted that the pre-filing
process could penalize States who choose not to attend pre-filing
meetings, even though it may not be feasible or necessary in all
instances, and argued that the EPA should not seek to supplant a
State's expertise on when a pre-filing meeting is necessary. Several
commenters noted that some States have established their own pre-filing
meeting requirements and should be encouraged to develop their own
criteria, including choosing whether to hold such pre-filing meetings.
Additionally, some commenters felt that the proposed 30-day notice for
such meetings was too short, while another commenter requested that the
EPA provide ``safeguards'' to ensure that States do not use the pre-
filing meeting as an opportunity to request unreasonable information or
studies that would delay a certification request. Some commenters noted
that while likely to yield useful information, the proposed regulations
lack a means of enforcing the pre-filing procedures and asserted that
the process could reward applicants who fail to cooperate with pre-
filing procedures. Some commenters noted that the proposal did not
include expected outcomes from such early collaboration and asserted
that this could result in inadequate certification requests. Some
commenters stated that the EPA's proposal did not include sufficient
guidance on best practices for pre-filing meetings, such as what
information the project proponent should be prepared to share with the
certifying authority.
    The EPA agrees with commenters who stated that pre-filing meetings
would generally improve early coordination and promote efficiency in
section 401 certification decision-making, although the utility of such
meetings could depend on the complexity of the project and resources of
the certifying authority. The EPA also agrees with commenters who
stated that pre-filing meetings under the final rule should have an
accountability mechanism, and thus the final rule requires the project
proponent to include documentation of its pre-filing meeting request in
any certification request filed with the certifying authority (see
section III.C of this notice). The EPA recommends that project
proponents submit a pre-filing meeting request in writing and maintain
a copy of the written request, as the final rule requires such
documentation to be submitted in a certification request. If a project
proponent does not submit a pre-filing meeting request or does not
maintain documentation that it made the request, the subsequent
certification request will not meet the requirements of the final rule,
and in such circumstances the reasonable period of time would not
start.

    The final rule does not set a limit on how early a project
proponent may submit a pre-filing meeting request or initiate
discussions with a certifying authority in order to encourage early and
ongoing coordination between the project proponent and the certifying
authority. The Agency disagrees with the suggestion that a pre-filing
meeting requirement could delay a certification request. Even if the
certifying authority does not agree to meet, the project proponent is
free to submit a certification request 30 days after submitting the
meeting request. See section III.C of this notice. In some cases, a
project proponent may find it beneficial to engage with a certifying
authority well in advance of the 30-day pre-filing meeting period,
particularly for complex projects. The 30-day period after submittal of
the pre-filing meeting request and prior to the submission of a
certification request provides an opportunity for the project proponent
to verify whether a section 401 certification is required and for the
certifying authority to identify potential information, in addition to
the certification request requirements in this rule, that may be
necessary for the certifying authority to act on the certification
request. Ultimately, the Agency believes that this provision of the
final rule will allow for a more efficient and predictable
certification process for all parties.
    Under the final rule, certifying authorities are not required to
grant pre-filing meeting requests. The EPA has determined that
certifying authorities are in the best position to determine when a
pre-filing meeting is necessary to help ensure that they receive all
necessary information to act on certification requests within the
reasonable period of time. The Agency encourages project proponents and
certifying authorities to use the pre-filing meeting to discuss the
proposed project and to determine what information is needed to enable
the certifying authority to act on the certification request in the
reasonable period of time. Additionally, certifying authorities and
project proponents may use the pre-filing meeting to discuss other
appropriate water quality requirements that may be applicable to the
certification request and any necessary procedural requirements (e.g.,
ascertain whether the State or Tribe requires any fees). The EPA
expects that certifying authorities may take advantage of a pre-filing
meeting request for larger or more complex projects and might choose to
decline the request for more routine and less complex projects. The
pre-filing meeting may be conducted in-person, or remotely (through
telephone, online, or other virtual platforms), as deemed appropriate
by the certifying authority.
    Certifying authorities are encouraged to develop pre-filing meeting
procedures tailored to identify information that may be needed to
review and act on a certification request. Such procedures could vary
depending on the project type, project complexity, or the triggering
federal license or permit, to enable greater efficiency and
predictability in the certification process. The Agency emphasizes that
any pre-filing meeting procedures or pre-filing expectations developed
or promulgated by certifying authorities cannot modify the requirements
for a certification request established in this final rule. The EPA
also notes that any new State or Tribal pre-filing meeting procedures
may not be used to extend the 30-day timeline following a pre-filing
meeting request for project proponents to submit a certification
request, nor may pre-filing meeting procedures be used to extend or
modify the reasonable period of time established by a Federal agency.
The EPA believes that requiring a pre-filing meeting request too early
could be an abuse of the process and result in an unreasonable
extension of the reasonable period of time that Congress envisioned,
which is not to exceed one year. Rather, such procedures should be
focused on allowing both the project proponent and the certifying
authority an opportunity to develop a common understanding and
expectation of the types of information that may be necessary for a
certifying authority to act on a certification request consistent with
section 401 and this final rule.
    Some commenters asserted that pre-filing meetings should not limit
a State's ability to request additional information after a
certification request has been made. Other commenters did not think
that pre-filing meetings should preclude project proponents from
withdrawing and resubmitting certification requests to extend the
reasonable period of time, which they stated is sometimes necessary for
complex projects. Under the final rule, the pre-filing meeting request
requirement does not affect a certifying authority's ability to request
additional information from a project proponent once the reasonable
period of time has started (see section III.F.2.a of this notice), but
such information requests cannot operate to extend the reasonable
period of time (see section III.F for further discussion on how
certifying authorities may request an extension to the reasonable
period of time from the federal agency). This requirement also does not
affect the ability of project proponents to withdraw a certification
request voluntarily (see section III.F of this notice). The Agency
disagrees with commenters who asserted that the pre-filing meeting
request requirement would penalize certifying authorities who choose
not to avail themselves of the pre-filing meeting; accepting a pre-
filing meeting is not a mandatory requirement. The Agency anticipates
that certifying authorities will act in good faith when evaluating pre-
filing meeting requests and identifying information they may need to
review and act on a certification request. The Agency notes that early
engagement and coordination, including participation in a pre-filing
meeting, may help increase the quality of information that is provided
by project proponents and may reduce the need for the certifying
authority to make additional information requests during the reasonable
period of time.
    In addition to pre-filing meetings between certifying authorities
and project proponents, commenters also suggested a variety of ways in
which federal agencies could facilitate information-sharing prior to
the certifying authority's receiving a certification request. For
example, one commenter expressed support for advance coordination
between States and federal agencies to streamline federal licensing and
permitting actions. A couple of commenters suggested that federal
agencies should notify States and Tribes of projects that require a
section 401 certification as soon as possible. One of these commenters
stated that the coordination between State and federal environmental
review requirements and processes should be done without diminishing
section 401 certification authority. Another commenter objected to
federal agency use of pre-filing meetings to inform the duration of the
reasonable period of time for review for certification actions, unless
there were clear inputs and outcomes for such meetings.
    The EPA recognizes that federal agencies are uniquely positioned to
promote pre-filing coordination with certifying authorities and with
project proponents, so as to harmonize project planning activities and
to promote timely action on certification requests. The Agency
acknowledges that other federal agencies may provide for pre-filing
discussions in their regulations, see, e.g., 18 CFR 5.1(d)(1) and 33
CFR 325.1(b), and recognizes that many certifying authorities and
federal agencies already have coordination

memos, memoranda of agreement, or other cooperative mechanisms in
place. The Agency is not finalizing specific requirements for federal
agency coordination with certifying authorities (except when federal
agencies are themselves seeking certification, see section III.M of
this notice). However, if there is a pre-application process required
or facilitated by the federal licensing or permitting agency and if the
timing of that process would allow the project proponent to request a
pre-filing meeting from the certifying authority at least 30 days
before submitting a certification request, then a joint meeting among
federal agencies, certifying authorities, and project proponents could
also be used as the pre-filing meeting for a certification request.
    In general, the EPA encourages federal agencies to notify
certifying authorities as early as possible about proposed projects
that may require a section 401 certification. Additionally, the EPA
encourages federal agencies (1) to timely respond to requests from
certifying authorities for information concerning the proposed federal
license or permit, and (2) to the extent consistent with agency
regulations and procedures, provide technical and procedural assistance
to certifying authorities and project proponents upon request. The EPA
also encourages project proponents and certifying authorities to engage
in any additional pre-filing discussion opportunities that may
facilitate greater communication and information sharing, and therefore
a more efficient and informed certification decision.

C. Certification Request/Receipt

1. What is the Agency finalizing?
    Under this final rule, a project proponent must submit a
certification request to a certifying authority to initiate an action
under section 401. Consistent with the text of the CWA, the final rule
provides that the statutory timeline for certification review starts
when the certifying authority receives a ``certification request,''
rather than when the certifying authority receives a ``complete
application'' or ``complete request'' as determined by the certifying
authority. After considering public comments, the final rule has been
revised to provide a general definition of ``certification request''
and provide two different lists of documents and information that must
be included in a certification request: One list for individual
licenses and permits and a separate list for the issuance of a general
license or permit. The certification request requirements, as well as
other provisions of the final rule tailored to the issuance of general
licenses and permits, are described in detail in section III.M of this
notice.
    To better account for water quality certifications required for
general licenses or permits, the definition of ``project proponent''
has been modified as follows pursuant to section 121.1(j) of the final
rule:
    Project proponent means the applicant for a license or permit or
the entity seeking certification.
    This final rule's definition of ``project proponent'' extends all
of the substantive and procedural requirements in this final rule to
federal agencies seeking certification for a general license or permit.
    Pursuant to section 121.1(c) of the final rule,
    Certification request means a written, signed, and dated
communication that satisfies the requirements of section 121.5 (b) or
(c).
    Section 121.5(b) of the final rule includes an enumerated list of
documents and information that must be included in a certification
request for an individual license or permit, including the seven
components from the proposed rule and two new components. A
certification request must include all components to start the
statutory clock. A certification request submitted for an individual
license or permit shall:
    1. Identify the project proponent(s) and a point of contact;
    2. identify the proposed project;
    3. identify the applicable federal license or permit;
    4. identify the location and nature of any potential discharge that
may result from the proposed project and the location of receiving
waters;
    5. include a description of any methods and means proposed to
monitor the discharge and the equipment or measures planned to treat,
control, or manage the discharge;
    6. include a list of all other federal, interstate, tribal, state,
territorial, or local agency authorizations required for the proposed
project, including all approvals or denials already received;
    7. include documentation that a pre-filing meeting request was
submitted to the certifying authority at least 30 days prior to
submitting the certification request;
    8. contain the following statement: `The project proponent hereby
certifies that all information contained herein is true, accurate, and
complete, to the best of my knowledge and belief'; and
    9. contain the following statement: `The project proponent hereby
requests that the certifying authority review and take action on this
CWA 401 certification request within the applicable reasonable period
of time.'
    The statutory reasonable period of time for a certifying authority
to act on a certification request begins when the certifying authority
is in ``receipt of such request.'' The EPA is finalizing the definition
of the term ``receipt'' as proposed:
    Receipt means the date that a certification request is documented
as received by a certifying authority in accordance with applicable
submission procedures.
    Together, these provisions will provide greater certainty for
project proponents, certifying authorities, and federal agencies
concerning when the reasonable period of time has started. Each of
these provisions is discussed in greater detail below.
2. Summary of Final Rule Rationale and Public Comment
    The Act places the burden on the project proponent to obtain a
section 401 certification from a certifying authority in order to
receive a federal license or permit. As discussed in the preamble to
the proposed rule, the section 401 certification process begins on the
date when the certification request is received by a certifying
authority. The statute limits the time for a certifying authority to
act on a request as follows:

    If the State, interstate agency, or Administrator, as the case
may be, 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, the certification requirements of
this subsection shall be waived with respect to such Federal
application.

    33 U.S.C. 1341(a)(1) (emphasis added). The plain language of the
Act requires that the reasonable period of time to act on certification
not extend beyond one year after the receipt of the certification
request. The statute, however, does not define those terms. As
discussed in the preamble to the proposed rule, because they are not
defined and their precise meaning is ambiguous, these terms are
susceptible to different interpretations. This ambiguity has resulted
in inefficiencies in the certification process; individual
certification decisions that have extended beyond the statutory
reasonable period of time; regulatory uncertainty; and litigation. See
section II.F of this notice. As the Agency charged with administering
the CWA, the EPA is authorized to interpret through rulemaking
undefined terms, including those associated with CWA section 401
certifications. See Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,
844 (1984). Given the large number of certification requests submitted
each year \54\ and the statutory requirement that those requests be
acted on within a reasonable period of time not to exceed one year, the
EPA is finalizing definitions for the terms ``certification request''
and ``receipt'' to provide project proponents, certifying authorities,
and federal agencies with clear regulatory text stating when the
statutory reasonable period of time begins.
---------------------------------------------------------------------------

    \54\ See section 2 of the Economic Analysis.
---------------------------------------------------------------------------

    The EPA is finalizing a definition for ``certification request''
that requires a written, signed, and dated communication that satisfies
the requirements of section 121.5(b) or (c) of the final rule. A
certification request that meets the requirements of the final rule
begins the certifying authority's reasonable period of time. The
structure of the final rule is somewhat different than the proposal
because, as described above, the final rule contains two separate lists
for certification requests; however, the purpose and function of the
``certification request'' remains consistent with the proposal.
    Commenters provided numerous recommendations for what should be
included in a certification request, including but not limited to
information on prior contamination at the project site, payment of
applicable fees, specific project proponent contacts, specific
geographic information, construction and mitigation plans, engineering
plans, sediment sampling plans, aquatic resources and their condition,
the characteristics of the discharge, description of all affected
wetlands and waters, State-listed species information and habitat
assessments, baseline data and information, and the complete federal
license or permit application, as well as a statement from the project
proponent that all information is true and correct. Conversely, a few
commenters recommended removing the specific components of a
``certification request'' and argued that the proposed information was
not necessary for a certifying authority to act on a request for
certification. The EPA considered all of these comments and made some
modifications in the final rule. The final definition of
``certification request'' requires that the project proponent's written
submission contain the components identified in either section 121.5(b)
or (c) of the final rule.
    Section 121.5(b) of the final rule addresses certification requests
submitted by project proponents, as the term is defined in the final
rule, and it requires the seven components listed in the proposed
definition, with a slight modification in one component, as well as two
additional components: A statement that all information contained in
the request is true, accurate, and complete to the best of the project
proponent's knowledge, and documentation that a pre-filing meeting
request was submitted to the certifying authority at least 30 days
prior to submitting the certification request. These additional
components are discussed further below. The Agency has modified the
fourth factor in the final rule to require project proponents to
identify the location and the nature of any potential discharge that
may result from the proposed project and the location of receiving
waters. This modification clarifies that project proponents should
identify the nature of the discharge, including (as appropriate) the
potential volume, extent, or type of discharge associated with the
proposed project. This modification is similar to the modification made
in the factors to be considered by a federal agency when setting the
reasonable period of time. See section III.F for further discussion.
The inclusion of this information will provide the certifying authority
with clear notice that the project proponent has submitted a
certification request and a sufficient baseline of information to allow
it to begin its evaluation in a timely manner.
    The Agency requested comment on whether it should include a
reference to ``any applicable fees'' among the components of its
definition of a certification request. Many commenters stated that a
certifying authority's applicable fees should be a required element in
the final rule. One commenter suggested that applicable fees for a
section 401 certification might be affected by the type of federal
license or permit for which they are applying. After considering all of
the public comments on this issue and conducting additional research
into whether and how certifying authorities may require fees for
section 401 certifications, the EPA has decided not to include a
reference to fees in the enumerated list of elements of a certification
request. States vary in how and when they require fees in the
certification process. They have different fee structures and different
requirements for the timing of paying a certification-related fee. The
Agency encourages the project proponent and the certifying authority to
discuss during the pre-filing meeting the certifying authority's fee
structure and the project proponent's obligation, if any, to pay a fee
related to the section 401 certification. Given the States' differing
practices in this area, the final rule does not include proof of fee
payment as a required component of a certification request to trigger
the statutory timeframe for State or Tribal action.
    Consistent with the proposal, the final rule requires a project
proponent to identify the location of any potential discharge in the
certification request. To meet this requirement, the EPA recommends
that the project proponent provide locational information about the
extent of the project footprint and all potential discharge locations,
as shown on design drawings and plans. The EPA recommends that project
proponents be prepared to provide underlying geographic data such as
shapefiles or geodatabases. Alternatively, the project proponent should
consider identifying potential discharge locations on hard copy maps.
The Agency acknowledges that the appropriate format and method to
identify potential discharge locations may change with evolving
technology and recommends that project proponents and certifying
authorities discuss the best approach to providing the information
required for the certification request.
    The EPA received comments from the public and feedback from other
federal agencies that the categories of information identified in the
proposed definition of certification request may not be appropriate for
a federal agency seeking section 401 certification for a general
license or permit. For example, at the time of certification, a federal
agency may not know the location of every potential discharge that may
in the future be covered under a general license or permit. In response
to these comments and to improve the utility and clarity of the final
rule, the Agency is also finalizing in section 121.5(c) of the final
rule a separate list of documents and information required for a
``certification request for issuance of a general license or permit.''
See section III.M of this notice for further discussion of the
certification process for general licenses or permits.
    The Agency received public comments emphasizing the efficiencies
that can be gained by federal agencies issuing general licenses and
permits, such as general NPDES permits issued by the EPA and Nationwide
or Regional section 404 general permits issued by the Corps. A few
commenters stated that federal agencies should follow procedures that
are consistent with other project proponents when submitting
certification requests and

complying with other aspects of the rule. The EPA agrees with
commenters that consistent procedural and substantive requirements for
all water quality certifications would promote regulatory certainty for
project proponents, federal agencies, and certifying authorities and
has modified the final rule definition of ``project proponent'' to
promote consistent water quality certifications. Section 121.1(j) of
the final rule defines ``project proponent'' to mean ``the applicant
for a license or permit or the entity seeking certification.'' With
this modified definition, the final rule clarifies that federal
agencies that issue general licenses or permits must comply with all of
the procedural and substantive requirements of this final rule.
    Consistent with the proposal, sections 121.5(b) and (c) of the
final rule include the following statement--``The project proponent
hereby requests that the certifying authority review and take action on
this CWA 401 certification request within the applicable reasonable
period of time.'' This requirement is intended to remove any potential
ambiguity on the part of the certifying authority about whether the
written request before it is, in fact, a ``certification request'' that
triggers the statutory timeline. One commenter noted that, if a project
proponent is uncertain whether the certifying authority will be able to
certify its project within the reasonable period of time, the project
proponent could submit a non-compliant certification request that omits
one or more components, which would prevent the reasonable period of
time clock from starting. The Agency agrees with this commenter that if
a project proponent does not submit a certification request as defined
at section 121.5(b) of the final rule, then the reasonable period of
time does not begin. The Agency encourages pre-filing meetings,
engagement, and information sharing between project proponents and
certifying authorities, but such engagement does not start the
reasonable period of time unless a certification request, as defined in
the final rule, is submitted to the certifying authority.
    Sections 121.5(b) and (c) of the final rule include two additional
provisions that were not in the proposed rule: A statement that all
information contained in the certification request is true, accurate,
and complete to the best of the requester's knowledge and belief, and
documentation that a pre-filing meeting request was submitted to the
certifying authority at least 30 days prior to submitting the
certification request. Both requirements are intended to create
additional accountability on the part of the project proponent to
ensure that information submitted in a certification request accurately
reflects the proposed project, and to ensure that the project proponent
has complied with the requirement to request a pre-filing meeting with
the certification authority. If a certification request does not
include these components, it does not meet the conditions of section
121.5(b) or (c) of the final rule and it does not start the statutory
clock.
    Notwithstanding the text of section 401(a)(1), which refers to a
``request for certification,'' some commenters asserted that requiring
a ``certification request,'' as opposed to a ``complete application,''
contravened congressional intent and cooperative federalism, and
represented a change in the EPA's longstanding practice. As discussed
in the preamble to the proposed rule, section 401 does not use the term
``complete application'' or prescribe what a ``certification request''
would require. The reference in prior EPA guidance to a ``complete
application,'' without explaining what an ``application'' must include,
has led to inconsistent and subjective determinations about the
sufficiency of certification request submittals. This, in turn, has
caused uncertainty about when the statutory reasonable period of time
begins to run. The Agency is authorized to interpret ambiguous
statutory terms, see Chevron, 467 U.S. at 844, and is finalizing what
it deems the most appropriate, reasonable interpretation of
``certification request'' to reduce uncertainty and enable project
proponents and certifying authorities to objectively and transparently
understand which submittals start the reasonable period of time.
    Some commenters also asserted that a standardized definition of
``certification request'' cannot capture all of the kinds of
information necessary for the certifying authority to make an informed
decision on a certification request. They expressed concern that
project proponents would be incentivized to circumvent a certifying
authority's meaningful review by not providing additional information.
Additionally, some commenters suggested that certifying authorities
should be given the flexibility to develop their own definition of a
``request'' or ``application'' to meet their applicable State and
Tribal laws and needs. While the Agency acknowledges these commenter
concerns, the EPA disagrees. As discussed above, the Agency is
authorized to interpret the term ``certification request'' because the
Act does not define the term, nor does it prescribe the amount of
information that must be included in a certification request. See
Chevron, 467 U.S. at 844. In this final rule, the Agency is
interpreting ``certification request'' to include components that the
Agency believes are necessary to provide a certifying authority with
clear notice that a request has been submitted and a sufficient
baseline of information for the certifying authority to begin its
review. It is important to distinguish between the amount of
information appropriate to start the certifying authority's reasonable
period of time and the amount of information that may be necessary for
the certifying authority to take final action on a certification
request. The components of a ``certification request'' identified in
the final rule are intended to be sufficient information to start the
reasonable period of time but may not necessarily represent the
totality of information a certifying authority may need to act on a
certification request. Nothing in the final rule's definition of
``certification request'' precludes a project proponent from submitting
additional, relevant information or precludes a certifying authority
from requesting and evaluating additional information within the
reasonable period of time (see section III.H of this notice for
specific procedures when the EPA is the certifying authority). Indeed,
in many cases it may be in the interest of the project proponent and
may provide a more efficient certification process if relevant
information about the discharge and potential impacts to the receiving
waters is provided to the certification authority early in the
certification process.
    As discussed in section III.B of this notice, the Agency is
finalizing a pre-filing meeting request requirement for all project
proponents, including federal agencies when they seek a section 401
certification for general licenses or permits. The Agency is including
a documentation requirement for the pre-filing meeting as a component
of a certification request to ensure that certifying authorities are
given an opportunity to engage in early discussions with project
proponents and federal agencies, if desired. The Agency encourages
project proponents and certifying authorities to use the pre-filing
meeting to discuss the proposed project and to determine what
information (if any), in addition to that required to be submitted as
part of the ``certification request,'' may be needed to enable the
certifying authority to take final action on the certification request
in the reasonable period of time. The

certifying authority may also take this opportunity to discuss any
other State or Tribal permits that may be applicable or required for
the proposed project.
    Although some commenters requested that the Agency include more
detailed certification request components, the Agency believes
additional detailed information is best ascertained through pre-filing
meetings and engagement during the reasonable period of time. If pre-
filing meetings, discussions, and submittals during the reasonable
period of time fail to produce the information necessary for a
certifying authority to grant certification or grant certification with
conditions, the final rule reaffirms that certifying authorities retain
the ability to deny or waive a certification request. It is important
to reiterate that the burden is on the project proponent to submit a
certification request to the certifying authority and work
cooperatively to provide additional information as appropriate to
facilitate the certification process. Likewise, the burden is on the
certifying authority to evaluate the certification request in good
faith and to request information, documents, and materials that are
within the scope of section 401 as provided in this final rule and that
can be produced and evaluated within the reasonable period of time.
    The Agency also disagrees with commenters who asserted that the
proposed definition of ``certification request'' would narrow State
authority, that it contradicted the goals and purpose of the CWA, and
that it was contrary to the plain language of section 401. The term
``request'' is not defined in the Act. As discussed above, the Agency
is authorized to interpret ambiguous statutory terms, and believes the
final definition of ``certification request'' and the provisions in
sections 121.5(b) and (c) of the final rule will provide needed clarity
and help ensure that certifying authorities have sufficient notice and
information to begin their evaluation of a certification request. The
final rule does not limit the ability of a certifying authority to
communicate with project proponents and to identify and request
additional information necessary to take an informed action on a
certification request in the reasonable period of time. Indeed, by
providing greater clarity on when the statutory reasonable period of
time begins and by encouraging early and constructive dialogue between
project proponents and certifying authorities, the final rule
facilitates a certifying authority's efforts to protect waters of the
United States within its borders within the timeframe mandated by
Congress.
    A number of commenters provided examples of projects that had been
delayed because a certifying authority repeatedly requested additional
information before a certification request would be considered
``complete.'' These commenters asserted that these types of repeated
requests for additional information undermine the statutory requirement
to act on a certification request within a reasonable period of time,
not to exceed one year. Other commenters asserted that a certifying
authority cannot reasonably act on a certification request based only
on the information required by the proposed rule. The EPA acknowledges
the desire for certifying authorities to have all necessary information
as soon as possible in the certification process, but the Agency must
balance that desire while remaining loyal to the statutory requirement
for timely action on a request. The Agency believes that its final rule
strikes the appropriate balance by identifying the kinds of information
that provide a reasonable baseline about any project while recognizing
the ability of certifying authorities and project proponents to request
and provide additional information both before and after the review
clock starts.
    The Agency also sees the value in finalizing certification request
components that are objective and do not require subjective
determinations by a certifying authority about whether the request
submittal requirements have been satisfied. A certification request
must have all components listed at section 121.5(b) or (c) of the final
rule to start the statutory reasonable period of time. If any of the
components of section 121.5(b) or (c) of the final rule is missing from
the certification request, the statutory reasonable period of time does
not start. With respect to the component of a certification request for
project proponents at section 121.5(b)(5) of the final rule, the EPA
acknowledges that not all proposed projects may be subject to
monitoring or treatment for a discharge (e.g., section 404 dredge or
fill permits rarely allow for a treatment option). The final rule has
been modified slightly to add the word ``manage'' to broaden the scope
of information that may be provided by project proponents. However, if
a project is not subject to monitoring, treatment, or management
requirements for its discharge, the project proponent should state that
in the certification request. The effect of such statement would be to
make that component inapplicable to that project. Many commenters
expressed concern that the proposed components of a certification
request would require subjective determination regarding the
appropriate level of detail. However, the Agency believes that the
final certification request components do not require a subjective
inquiry into their sufficiency or any inquiry beyond whether they have
been provided in the request.
    The final rule requires a certification request to include a
statement that, to the best of the project proponent's knowledge and
belief, all information contained in the request is true, accurate, and
complete. This requirement is intended to ensure that project
proponents are making a good-faith effort to provide the certifying
authority with accurate information necessary to begin its evaluation
of the certification request. Additionally, as discussed above, the EPA
anticipates that the project proponent and the certifying authority
will coordinate information needs before and throughout the reasonable
period of time, if necessary. The EPA expects that the project
proponent both will provide a certification request that includes the
components identified in the final rule and will engage with the
certifying authority, as requested, to understand and respond to
appropriate and reasonable additional information requests that are
within the scope of section 401 and can be generated and reviewed
within the reasonable period of time. For its part, the EPA expects
that the certifying authority will act within the scope of section 401,
as provided in the CWA and in this final rule.
    The EPA solicited comment on whether the Agency should generate a
standard form for all certification requests. Most commenters did not
support the development of a standard form and noted that most States
have their own forms for ``complete applications.'' At this time, the
Agency is not developing a standard form for project proponents to use
to submit certification requests, but notes that States and Tribes that
wish to continue using standard forms may choose to update those forms
to be consistent with the final definition of ``certification
request.'' The Agency may consider developing such forms in the future,
if useful to project proponents and certifying authorities.
    Some commenters asked for clarification on the practical effect on
the review clock of a project proponent's independently withdrawing a
certification request by its own choice and not at the request of a
certifying authority. If a project proponent withdraws a certification
request because the project is no longer being

planned or if certain elements of the proposed project materially
change from what was originally proposed or from what is described or
analyzed in additional information submitted by the project proponent,
it is the EPA's interpretation that the certifying authority no longer
has an obligation to act on that request. To avoid scenarios like those
presented in Hoopa Valley and to address the EPA's policy concern that
section 401 certification delays also delay implementation of updated
State and Tribal water quality standards and other requirements, the
EPA expects that voluntary withdrawal by the project proponent will be
done sparingly and only in response to material modifications to the
project or if the project is no longer planned. In these circumstances,
if the project proponent seeks to obtain a certification in the future,
the project proponent must submit a new certification request. At a
minimum, the project proponent would have to wait 30 days before re-
submitting a certification request, because under the final rule
project proponents must request a pre-filing meeting at least 30 days
before submitting a certification request, and voluntary withdrawal by
a project proponent of a prior certification request does not obviate
this pre-filing requirement. For further discussion about project
proponent withdrawal, see section III.F of this notice.
    Commenters asked the Agency to clarify when a change in the
proposed project would be so significant that it would require a new
request. Many commenters asserted that the proposed rule would prevent
extending the reasonable period of time even though the scope of the
project changes during the reasonable period of time. Other commenters
noted that the proposed rule did not account for project changes that
may result from the federal license or permit review processes. A
couple of commenters stated that the EPA should provide guidance to
federal agencies on when a new certification request would be necessary
based on the type and change in a project's scope, while one commenter
asked the Agency to clarify whether projects that change in scope or
design require a new certification.
    After considering public comments on this issue, the final rule
does not identify each circumstance that may warrant the submission of
a new certification request because the Agency believes that such
circumstances are best addressed on a case-by-case basis. However, if
certain elements of the proposed project (e.g., the location of the
project or the nature of any potential discharge that may result)
change materially after a project proponent submits a certification
request, it may be reasonable for the project proponent to submit a new
certification request. Administrative changes, such as a change in the
point of contact or the list of other required permits, and minor
changes to the proposed project, such as those that do not change the
project footprint in a material way, should not warrant the submission
of a new certification request. The EPA recognizes that complex
projects that are subject to multi-year federal licensing or permitting
procedures may change over time as a result of those federal
procedures. From a practical standpoint, the EPA encourages project
proponents to maintain close coordination and communication with
certifying authorities and recommends that the project proponent
provide information about any project changes to the certifying
authority regardless of when the change occurred or whether a
certification has already been issued by the certifying authority. As
an additional measure, the Act and the final rule provide certifying
authorities with the opportunity to inspect a certified project prior
to initial operation to ensure the project will comply with the
certification.
    The Agency is finalizing the definition of ``receipt'' as proposed,
so as to provide clarity for project proponents and certifying
authorities about when the certification request is deemed received and
the statutory clock begins. The CWA does not define the term ``receipt
of such request'' in section 401(a)(1), which has led States, Tribes,
and project proponents, as well as courts, to use different
definitions. ``Receipt of the request'' has been used alternately to
mean receipt by the certifying authority of the request in whatever
form it was submitted by the project proponent, or receipt of a
``complete application'' as determined by differing regulations
established by certifying authorities. The statute also does not
specify how requests are to be ``received'' by the certifying
authority--whether by mail, by electronic submission, or some other
means. The EPA understands that some certifying authorities have
established general submission procedures for project proponents to
follow when seeking State or Tribal licenses or permits. The EPA
encourages the use of consistent procedures for all submittals,
including section 401 certification requests. The final rule
requirement that certification requests be documented as received ``in
accordance with applicable submission procedures'' is intended to
recognize that certifying authorities may have different procedures for
submission of requests established in State or Tribal law. For
instance, some certifying authorities may require hard copy paper
submittals, while others may require or allow electronic submittals. If
the certifying authority accepts hard copy paper submittals, the EPA
recommends that the project proponents submitting a hard copy request
send the request via certified mail (or similar means) to confirm
receipt of the certification request. If the certifying authority
allows for electronic submittals, the EPA recommends that the project
proponent set up an electronic process to confirm receipt of the
request. Nothing in the final rule precludes the use of electronic
signatures when deemed appropriate by the certifying authority. The EPA
recommends that project proponents retain a copy of any written or
electronic confirmation of submission or receipt for their records.
    One commenter disagreed with the suggestion that the word
``receipt'' is ambiguous but nonetheless agreed with the proposed rule
because, this commenter asserted, states have made efforts to evade the
one-year reasonable period of time. For the reasons explained above,
EPA disagrees with the commenter and concludes that the word is
ambiguous. Another commenter stated that section 401 does not require
certifying authorities to act ``upon'' receipt of a request, but
``after'' receipt of a request. This commenter is correct that the
statute requires certifying authorities to act on a certification
request ``within a reasonable period of time (which shall not exceed
one year) after receipt of such request.'' As discussed above, the
Agency has the authority to interpret ambiguous statutory terms,
including the terms ``request'' and ``receipt of such request.'' The
Agency has defined ``receipt'' to mean ``the date that a certification
request is documented as received by a certifying authority in
accordance with applicable submission procedures.'' Therefore, under
the EPA's final rule, the statutory clock begins on the date when the
certification request is documented as received by the certifying
authority.
    Some commenters recommended that ``receipt'' should mean the date
when a certification request and all materials required by State or
Tribal law are documented as received by a certifying authority in
accordance with applicable submission procedures. The Agency disagrees
with these commenters. The EPA is aware that some States have
regulations establishing what should be in a request for certification
and when

it will be considered ``complete.'' For instance, the California Code
of Regulations states: ``Upon receipt of an application, it shall be
reviewed by the certifying agency to determine if it is complete. If
the application is incomplete, the applicant shall be notified in
writing no later than 30 days after receipt of the application, of any
additional information or action needed.'' Cal. Code Regs. tit. 23,
3835(a). The EPA also notes that some State regulations may require the
completion of certain processes, studies, or other regulatory
milestones before it will consider a certification request
``complete.'' Although the CWA provides flexibility for certifying
authorities to follow their own administrative procedures, particularly
for public notice and comment, see 33 U.S.C. 1341(a), these procedures
cannot be implemented in such a manner as to violate the CWA. The Act
requires the timeline for review to begin ``after receipt'' of a
certification request, notwithstanding any completeness determination
procedure, and it requires certifications to be processed within a
``reasonable period of time (which shall not exceed one year.'').
    One principal goal of this rulemaking is to provide additional
clarity and certainty about the certification process, including when
the reasonable period of time begins. Establishing a consistent and
objective list of information necessary to start the statutory
reasonable period of time is necessary to achieve that goal. As
discussed above, the Agency has defined the elements necessary to
provide the certifying authority with sufficient notice and information
to begin to evaluate a request for certification. If there are
additional information needs aside from the finalized components
provided in a certification request, the certifying authority and
project proponent may discuss those needs during the pre-filing meeting
(see section III.B of this notice) or during the reasonable period of
time. The requirement that certification requests be received ``in
accordance with applicable submission procedures'' cannot be used by
certifying authorities to introduce unreasonable delay between when an
agency receives a certification request and when ``receipt'' occurs, as
this would contravene this final rule.
    Many commenters expressed concern that the proposal lacked any
requirement that a request be ``administratively complete.'' One
commenter asserted that without a robust administrative record on which
to rely, certifying authorities would be more vulnerable to successful
challenges of their certification determinations. The final rule
establishes that a certification request is administratively complete
when it contains the items set forth in section 121.5(b) or (c). The
final rule requires that the project proponent request a pre-filing
meeting with the certifying authority before submitting the
certification request, thereby providing that certifying authority the
opportunity to discuss any additional informational needs it may have.
If a project proponent fails to supply the certifying authority with
information necessary to assure that the discharge from the proposed
project complies with the water quality requirements, the certifying
authority may so specify in a denial of the certification. If the
certifying authority requests information from the project proponent
that is beyond the scope of section 401, the project proponent's remedy
lies with a court of competent jurisdiction. To avoid situations where
the certifying authority requests information from project proponents
that cannot be developed and submitted within the reasonable period of
time, the EPA recommends that both the project proponent and the
certifying authority work in good faith, consistent with section 401,
and have early and sustained coordination and communication to
streamline the overall certification process.
    Some commenters asserted that under the proposed rule, the federal
agency would not have a reliable way to determine whether a certifying
authority has received a request because the proposed rule required
only project proponents, and not certifying authorities, to alert
federal agencies when a project proponent had submitted a certification
request. Project proponents have the burden of requesting certification
from a certifying authority and for providing federal agencies with the
certification to help fulfill the requirements of a federal license or
permit. After reviewing public comments, the Agency has decided not to
finalize the requirement proposed at section 121.4(b) in order to
provide all interested parties with greater clarity and a common
understanding regarding the status of a certification request. To
effectuate notice of a certification request at the earliest point in
time, section 121.5(a) of the final rule requires a project proponent
to submit a certification request to the appropriate certifying
authority and the federal licensing or permitting agency concurrently.
Including this requirement in the final rule will provide the federal
agency with notification about a certification request and sufficient
information to determine the reasonable period of time for that
certification request. This process will also address commenter
concerns by providing federal agencies and certifying authorities with
a concurrent notice when a certification request is received. As
discussed above, the Agency recognizes that certifying authorities may
have different submission procedures and recommends that project
proponents submit copies to the federal agency in a manner consistent
with the certifying authority's submission procedures, to ensure that
the request is received at the same time. The final rule requires the
federal agency to communicate the reasonable period of time to the
certifying authority within 15 days of receiving the certification
request from the project proponent in accordance with section 121.5(a)
of the final rule. The EPA expects federal licensing and permitting
agencies to provide the notice required in this final rule and strongly
encourages federal agencies to promulgate or update agency-specific
regulations to implement CWA section 401 and this final rule. However,
in the unlikely event that the federal agency does not provide the
required notice, the EPA recommends that certifying authorities assume
that the federal agency's promulgated default reasonable period of time
applies (e.g., the Corps' 60 days). If the federal agency fails to
provide notification and has not promulgated a default or categorical
reasonable period of time, the Agency recommends that certifying
authorities assume the reasonable period of time expires one year from
the date the certification request was received. The Agency recommends
that all parties retain copies of certification requests for their
records in case there is any misunderstanding about the beginning of
the reasonable period of time.
    EPA acknowledges that many States and Tribes have established their
own requirements for section 401 certification request submittals,
which may be different from or more extensive than the ``certification
request'' requirements set forth in this final rule. However, these
additional requirements should not be used to expand the certification
request requirements in this final rule, which are intended to
establish clear expectations for certifying authorities and project
proponents, and which provide a transparent and consistent framework
for when the reasonable period of time begins. The EPA notes that
certifying

authorities may update their existing section 401 certification
regulations to be consistent with the EPA's regulations. Additionally,
the EPA observes that certifying authorities may wish to work with
neighboring jurisdictions to develop regulations that are consistent
from State to State. This may be particularly useful for interstate
projects, like pipelines and transmission lines, requiring water
quality certifications from more than one State.
    Some commenters requested additional clarification about when
project proponents should submit a certification request, relative to
the timelines in federal licenses or permits or other federal laws. One
commenter stated it would be helpful to specify a point in the federal
permitting timeline when project proponents should submit a
certification request. The commenter suggested that this point in time
should be based on when States would have adequate information to make
a certification decision. One commenter explained that if a State is
required to issue section 401 certification before NEPA environmental
documentation is complete and made available, the State would have to
initiate state environmental review before NEPA documents are
available, which is an unnecessarily burdensome approach for both the
State and the applicant. Other commenters noted that the proposed rule
could place an unnecessary burden on States and Tribes if an EIS
results in a no action alternative being chosen, but the State or Tribe
has already expended resources to complete a section 401 certification.
The EPA also observes that some federal permit or license procedures
can be lengthy and can result in project modifications in the early
stages of the process.
    The Agency is not prescribing a specific point in a federal
licensing or permitting process when project proponents are required to
submit a certification request. The Agency is aware that FERC's
regulations already establish when during the hydropower licensing
process a project proponent may request certification. Specifically,
FERC's regulations require project proponents to complete a years-long
process that includes environmental studies and reviews before a
project proponent may request certification for that federal license.
See 18 CFR 5.22, 5.23. The Agency encourages all federal licensing and
permitting agencies to evaluate their programs and processes and to
consider promulgating or updating their section 401 implementing
regulations to specify when a section 401 certification request should
be submitted. Providing additional specificity and procedures for
project proponents may reduce the duplication of work between federal,
State and Tribal authorities and may make the certification process
more efficient. In the absence of formal guidance or rulemaking from
the appropriate federal licensing or permitting agency, the EPA
recommends that project proponents, certifying authorities, and federal
agencies coordinate and discuss the appropriate timing for a section
401 certification request in light of the federal licensing or
permitting process and other project approval requirements.

D. Certification Actions

1. What is the Agency finalizing?
    Consistent with the text of the CWA, under the final rule a
certifying authority may take one of four actions pursuant to its
section 401 authority: Grant certification, grant certification with
conditions, deny certification, or waive its opportunity to provide a
certification. These actions are reflected in section 121.7 of the
final regulatory text. Any action by the certifying authority to grant,
grant with conditions, or deny a certification request must be within
the scope of certification (see section III.E of this notice), must be
completed within the established reasonable period of time (see section
III.F of this notice), and must otherwise be in accordance with section
401 of the CWA (see section III.G of this notice). Alternatively, a
certifying authority may expressly waive the certification requirement.
Under the final rule, certifying authorities may also implicitly waive
the certification requirement by failing or refusing to act (see
section III.G.2.d of this notice). All certification actions must be in
writing, and the contents and effects of such actions are discussed
below in section III.G of this notice. The final rule is consistent
with the Agency's longstanding interpretation of what actions may be
taken in response to a certification request.
2. Summary of Final Rule Rationale and Public Comment
    Under the final rule, if the certifying authority determines that
the discharge from a proposed project will comply with specific
provisions enumerated in CWA section 401(a) and with other appropriate
State or Tribal water quality requirements, it may grant that
certification with or without conditions, as appropriate. To provide
additional clarity, section 121.1(n) of the final rule defines ``water
quality requirements'' (see section III.E.2.b of this notice for
further discussion of this definition). If the certifying authority
cannot certify (with or without conditions) that the discharge from a
proposed project will comply with ``water quality requirements,'' it
may either deny or waive certification. There may be multiple reasons
why a certifying authority is unable to certify, including a lack of
resources for reviewing the certification request, higher priority work
that the certifying authority must attend to, or evidence that the
discharge will not comply with ``water quality requirements.'' Under
the former circumstances, waiver would be appropriate; and under the
latter circumstance, denial would be appropriate.
a. Grant
    When a certifying authority grants a section 401 certification, it
has concluded that the potential point source discharge into waters of
the United States from the proposed project will be consistent with
``water quality requirements.'' Granting certification allows the
federal agency to proceed with issuing the license or permit.
b. Grant With Conditions
    If the certifying authority determines that the potential discharge
from a proposed project would be consistent with ``water quality
requirements'' only if certain conditions are met, the authority may
include such conditions in its certification. Where the certifying
authority grants certification with conditions in accordance with
section 401 and this final rule, the federal agency may proceed to
issue the license or permit. Certification conditions that satisfy the
requirements of this final rule must be incorporated into the federal
license or permit, if issued, and become federally enforceable.
c. Deny
    A certifying authority may deny certification if it is unable to
certify that the potential discharge from a proposed project would be
consistent with ``water quality requirements'' as defined in this rule.
CWA section 401(a)(1) provides that ``[n]o license or permit shall be
granted if certification has been denied by the State, interstate
agency, or the Administrator, as the case may be.'' 33 U.S.C.
1341(a)(1).
    This final rule reaffirms the ability of a project proponent to
submit a new certification request if a previous request is denied.
Some commenters agreed that it would always be proper to allow project
proponents to request certification again if the certifying

authority denied their previous request(s). Other commenters
interpreted this provision as preventing certifying authorities from
denying with prejudice and recommended that the final rule explicitly
allow certifying authorities the option to deny with prejudice. These
commenters asserted that denial with prejudice is a tool that preserves
certifying authorities' resources in cases where they are asked to
review substantially similar certification requests for the same
project once it has already determined that the project cannot comply
with water quality requirements. Some commenters argued that section
401 does not preclude certifying authorities from denying requests with
prejudice, and that regulations that precluded certifying authorities
from doing so would be inconsistent with the statute. Other commenters
noted that the statute does not explicitly authorize denial with
prejudice or prevent a project proponent from requesting a new section
401 certification after a request is denied. The EPA agrees that the
statute is silent on this issue. The EPA is not aware that any other
CWA program authorizes a permit application to be denied with prejudice
or explicitly precludes a permit applicant from re-applying for a
permit after an initial denial. For consistency with other CWA
programs, and because nothing in section 401 prohibits a project
proponent from submitting a new certification request after a denial is
issued, the EPA is finalizing this provision as proposed. In the event
that a denial is issued, the EPA recommends that the project proponent
discuss with the certifying authority whether project plans could be
altered or whether additional information could be developed to
demonstrate that the discharge from the proposed project will comply
with applicable water quality requirements upon submittal of a new
certification request.
d. Waive
    Under the final rule, a certifying authority may waive its
opportunity to certify in two ways (see section 121.9(a) of the final
regulatory text). First, the certifying authority may waive expressly
by issuing a written statement that it is waiving certification.
Second, the certifying authority may implicitly or constructively waive
by failing or refusing to act within the reasonable period of time,
failing to act in accordance with the procedural requirements of
section 401, or failing to act in accordance with the requirements in
sections 121.7(c)-(e) of this rule.\55\ As discussed throughout this
final rule preamble, section 401 requires a certifying authority to act
on a certification request within a reasonable period of time, not to
exceed one year. If the certifying authority fails or refuses to act
within that reasonable period, the certification requirement will be
deemed waived by the federal licensing or permitting agency. Id. As
described further in section III.G.2.d of this notice, if a
certification grant, grant with conditions, or denial does not satisfy
the procedural requirements of this final rule, it is waived. When a
certifying authority waives the requirement for a certification, under
this final rule the federal agency may proceed to issue the license or
permit in accordance with its implementing regulations.
---------------------------------------------------------------------------

    \55\ As noted elsewhere in this notice, waiver of a specific
certification condition does not waive the entire certification.
---------------------------------------------------------------------------

E. Appropriate Scope for Section 401 Certification Review

1. What is the Agency finalizing?
    While Congress did not provide a single, clear, and unambiguous
definition of the appropriate scope of section 401, the text,
structure, and legislative history of the CWA (including the name of
the statute itself--the Federal Water Pollution Control Act Amendments
of 1972 or, more commonly, the Clean Water Act) demonstrate that
section 401 appropriately focuses on addressing water quality impacts
from potential or actual discharges from federally licensed or
permitted projects. The EPA, as the federal entity charged with
administering the CWA, has authority to reasonably resolve any
ambiguity in section 401's scope through notice and comment rulemaking.
To accomplish this, the Agency is finalizing as proposed section 121.3
of the regulatory text, which contains the following clear and concise
statement of the scope of certification:
    The scope of a Clean Water Act section 401 certification is limited
to assuring that a discharge from a Federally licensed or permitted
activity will comply with water quality requirements.
    The Agency is also finalizing definitions of the terms
``discharge'' and ``water quality requirements.'' Together, these
provisions of the final rule provide clarity on the scope of section
401. As explained in section III.A of this notice, based on the text
and structure of the Act, as well as the history of modifications
between the 1970 version and the 1972 amendments, the EPA has concluded
that section 401 is best interpreted as protecting water quality from
federally licensed or permitted activities that may result in point
source discharges into waters of the United States. The Agency is
finalizing the definition of discharge with only one change, replacing
``navigable waters'' with ``waters of the United States'':
    Discharge for purposes of this part means a discharge from a point
source into a water of the United States.
    The Agency chose to use the more commonly used term ``waters of the
United States'' to increase clarity in the final rule; however, this
does not change the meaning of the definition. As described further
below, the term ``water quality requirements'' is used throughout
section 401, and the term ``other appropriate requirements of State
law'' is used in section 401(d), but neither of these terms is defined
in the CWA. As the terms are used in the CWA, the EPA interprets
``other appropriate requirements of state law'' to mean a subset of
``water quality requirements.'' To give more specific meaning to this
ambiguous and undefined language, the final rule defines the term
``water quality requirements'' as follows:

    Water quality requirements means 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.

    The final rule uses the term ``water quality requirements'' to
define the universe of provisions that certifying authorities may
consider under sections 401(a) and 401(d). This definition has been
modified from the proposal to provide additional clarity.
    The scope of certification in section 121.3 is the foundation of
the final rule. The scope is based on the text, structure, and
legislative history of the CWA, is informed by important policy
considerations and the Agency's expertise, and informs all other
provisions of the final rule. The scope of certification provides
clarity to certifying authorities, federal agencies, and project
proponents regarding the nature and breadth of the environmental review
that is expected and the type of information that may reasonably be
needed to review a certification request. The scope applies to all
actions on a certification request, including a decision to grant,
grant with conditions, or deny. The scope of certification also helps
inform what may be a reasonable period of time for a certifying
authority to review and act on a certification request.

    To help ensure that section 401 certification actions are taken
within the scope of certification, the EPA is finalizing certain
requirements for certifications in section 121.7(c) of the final rule,
certification conditions in section 121.7(d) of the final rule, and
denials in section 121.7(e) of the final rule. For further discussion
of the contents and effects of certification conditions and denials,
see section III.G of this notice.
2. Summary of Final Rule Rationale and Public Comment
    The Agency is finalizing as proposed the scope of certification in
section 121.3 of the final rule. Consistent with the proposal, the
scope of a section 401 certification in the final rule is limited to
assuring that a ``discharge'' from a federally licensed or permitted
activity--rather than the activity as a whole--``will comply'' with
``water quality requirements.'' The definition of ``water quality
requirements'' has been modified in the final rule to provide
additional clarity.
a. Activity Versus Discharge
    The Agency is finalizing the rule as proposed, focusing the scope
of section 401 on the discharge from a federally licensed or permitted
activity, as opposed to the activity as a whole. As described in
section II.G.1.b of this notice, section 401(a) explicitly provides
that the certifying authority, described as ``the State in which the
discharge originates or will originate,'' must certify that ``any such
discharge will comply with the applicable provisions of sections 301,
302, 303, 306 and 307 of this Act'' (emphasis added). The plain
language of section 401(a) therefore directs authorities to certify
that the discharge resulting from the proposed federally licensed or
permitted project will comply with the CWA. Although section 401(d)
authorizes a certifying authority to establish conditions to assure
that the ``applicant'' will comply with applicable water quality
requirements, the EPA does not interpret the use of ``applicant'' in
section 401(d) as broadening the scope beyond consideration of water
quality impacts from the ``discharge,'' as set out in section 401(a).
    Some commenters asserted that the proposed scope of review for
section 401 conflicts with the language of the CWA, applicable case
law, and the legislative history of the CWA. These commenters asserted
that the proper scope of section 401 should include all water quality
impacts from the federally licensed or permitted activity or the
project as a whole. Many commenters relied on the Supreme Court's
rationale in PUD No. 1 and argued that the plain language of section
401(d) is unambiguous and reasonably read as authorizing conditions and
limitations on the activity as a whole. Commenters asserted that the
plain meaning of the statutory language is clear, as is the legislative
intent, and further asserted that the EPA's reliance on Chevron is
misplaced. Commenters claimed that the Court in PUD No. 1 found the
statutory language unambiguous and analyzed section 401 under Chevron
step 1 and therefore, they argue, Brand X does not support EPA's
reanalysis of the statutory language in a manner contrary to the PUD
No. 1 opinion. These commenters asserted that even if it was not a
Chevron step 1 analysis, the Court's majority opinion is a reasonable,
holistic reading of section 401. These commenters also asserted that
the Court did not rely on the EPA's interpretation of the statute, but
relied on the plain language of the statute and therefore, they argue,
Brand X does not support the EPA's reanalysis of the statutory language
in a manner contrary to PUD. No. 1. Some commenters also asserted that
the proposed scope of certification improperly departs from the EPA's
longstanding interpretation without providing an adequate
justification.
    Other commenters agreed with the EPA's interpretation of the
statutory language and case law analysis in the proposed rule preamble,
including the interpretation of the scope of certification, and agreed
that section 401 is a limited grant of federal authority to States and
Tribes. These commenters found the EPA's interpretation of section 401
reasonable despite their view that it was inconsistent with the
majority opinion in PUD No.1. These commenters also observed that the
Court in PUD No.1 did not have the benefit of an EPA interpretation of
the 1972 version of section 401.
    The Agency disagrees with commenters who asserted that the proposed
scope of certification conflicts with the CWA, case law, and
legislative history, and disagrees with the contention that the
proposed scope was not supported by adequate justification. The scope
of certification in the final rule is based on the EPA's holistic
examination of section 401 and the legislative history. Congress'
change in section 401(a) from ``activity'' to ``discharge'' in the 1972
amendments reflects the ``total restructuring'' and ``complete
rewriting'' of the existing statutory framework in 1972 that resulted
in the core provisions of the CWA that regulate discharges into waters
of the United States. See City of Milwaukee v. Illinois, 451 U.S. 304,
317 (1981) (quoting legislative history of 1972 amendments). See also
County of Maui, Hawaii v. Hawaii Wildlife Fund, et al., No. 18-260, Op.
at 2 (April 23, 2020). The final rule gives due weight to Congress'
intentional choice to change the language in section 401(a) to ensure
that ``discharges'' from federally licensed or permitted activities,
rather than the activity as a whole, comply with appropriate water
quality requirements.
    The Agency also disagrees with commenters who asserted that the
scope of certification is expressed unambiguously in section 401. As
demonstrated by the variation in public comments received, section 401
is susceptible to a multitude of interpretations. The EPA also
disagrees with the suggestion that the PUD No. 1 Court found section
401 to be unambiguous. Nowhere in the opinion does the Court conclude
that section 401 is unambiguous. In fact, the Supreme Court in PUD No.
1 offered its own interpretation of the ambiguous language in section
401 when it ``reasonably read'' the scope of section 401 to allow
conditions and limitations on the activity as a whole. As discussed in
detail in section II.F.4.a.i of this notice, although the Court did not
articulate a Chevron step one or step two analysis in its decision, the
Court did reference EPA's 1971 certification regulations with approval
and concluded that the EPA's ``reasonable interpretation'' (based on
those regulations) is entitled to deference. Id. The Court further
found the EPA's regulations to be consistent with the Court's own
reasonable reading of the language of sections 401(a) and (d). Id. at
712. As discussed in section II.F.4.a.i of this notice, the Court's
``reasonable reading'' of a statute undercuts any argument that the
statute's text or meaning is unambiguous.
    For the first time, the EPA has presented in this final rule the
Agency's interpretation and analysis of section 401. The Agency's
interpretation of the scope of section 401 as presented in section
121.3 of this final rule is not foreclosed by the holding in PUD No. 1.
The Court's conclusion that section 401 applied to the activity as a
whole, rather than the discharge, did not follow from the unambiguous
terms of the statute. Nat'l Cable & Telecomm. Ass'n v. Brand X internet
Serv., 545 U.S. 967, 982 (2005). The scope of certification in section
121.3 of this final rule is permissible and is based on a reasonable
interpretation of the ambiguity created

by the different language Congress used in sections 401(a) and 401(d)
of the Act.
    Some commenters supported the alternative interpretation presented
in the proposed rule to the effect that only the CWA sections
enumerated in section 401(a) may be used as a basis for a water quality
certification denial, while section 401(d) lists the considerations for
applying conditions to a granted water quality certification. These
commenters stated that this approach reflects the plain language of the
CWA, and therefore that ``any other appropriate requirement of State
law'' could be considered only when applying conditions to a water
quality certification and cannot be grounds for a denial. Other
commenters stated that section 401(a) and section 401(d) do not and
have never been interpreted to have different scopes. After considering
all public comments on this and other issues, the Agency is not
finalizing the proposed alternative interpretation. The EPA believes
that interpreting section 401 as establishing different standards for
issuing a denial under section 401(a) and for requiring conditions
under section 401(d) is likely to lead to implementation challenges,
including confusion by project proponents, certifying authorities and
federal licensing and permitting agencies. Moreover, if a certifying
authority determines that it must add conditions under section 401(d)
to justify a grant of certification under section 401(a), that is
equivalent to deciding that--without those conditions--it must deny
certification. The standard is therefore essentially the same. As
explained above in this section and in section II.F.4.a.i of this
notice, the Agency is finalizing what it has determined to be the most
appropriate, reasonable interpretation of section 401 that is based on
a holistic analysis of section 401, the entirety of the CWA, and the
legislative history.
    Some commenters argued that the focus of the CWA 1972 amendments on
discharges does not override what they assert are the plain terms of
section 401 and accused the EPA of selectively picking language to
support a narrower scope. Some commenters disagreed with the EPA's view
that the proposed rule is necessary to update EPA's certification
regulations to conform with the 1972 CWA amendments, and they
maintained that the EPA's reading of the statute is inconsistent with
Supreme Court precedent. Other commenters agreed that the proposed rule
is necessary, as the existing water quality certification regulations
were promulgated prior to the 1972 CWA amendments, and these commenters
agreed that the conflicting interpretations that have followed the
original promulgation need to be addressed through revised regulations.
    For the reasons explained in section II.F of this notice, the EPA
concludes that the existing certification regulations must be updated
to reflect the language of the 1972 CWA amendments. This final rule
reflects the EPA's holistic review of the CWA statutory text, the
history of that text, and legislative history, and is informed by
relevant case law. The EPA acknowledges that the final rule's focus on
discharges, as opposed to the activity as a whole, is not consistent
with the majority opinion in PUD No. 1; however, the Agency's rationale
supporting its interpretation is grounded in the text of the statute,
gives due weight to word choices made by Congress, and is clearly
explained in the proposed and final rule preambles.
    Some commenters asserted that the proposed rule was inconsistent
with other holdings in PUD No. 1, including that (1) States could
condition a certification on any limitations necessary to ensure
compliance with State water quality standards or other appropriate
requirements of State law; (2) a minimum flow condition was an
appropriate requirement of State law; and (3) a State's authority to
impose minimum flow requirements would not be limited on the theory
that it interfered with FERC's authority to license hydroelectric
projects. The EPA disagrees with these commenters. First, neither the
proposed rule nor the final rule prohibits water quality-related
certification conditions that are necessary to assure compliance with
appropriate State or Tribal law. Rather, the rule clarifies the scope
of laws that are appropriate for consideration and as the basis for
certification conditions. As described in this section of the notice,
the EPA made some changes in the final rule to provide additional
clarity and regulatory certainty. Second, neither the proposed rule nor
the final rule address minimum flow issues.
    Some commenters asserted it was inappropriate for the proposed rule
to rely on Justice Thomas' ``nonbinding'' dissent in PUD No. 1 instead
of the holding of the majority opinion. One commenter suggested that
reliance on the dissent exposes the EPA to legal challenge, injecting
even more uncertainty into water quality certification programs. For
the reasons explained in sections II.F.4.a.i, the EPA disagrees with
these commenters. The EPA is not relying on any single judicial opinion
for its interpretation of ambiguous statutory terms in this final rule.
Rather, the final rule reflects the EPA's holistic analysis of the
text, structure, and history of CWA section 401, informed by the
Agency's expertise developed over nearly 50 years of implementing the
CWA.
    Commenters asserted that the proposed rule would weaken the ability
of States and Tribes to protect water quality, and some commenters
asserted that the proposed rule would lead to negative impacts to the
environment and public health. Some commenters asserted that the
purpose of the rule is not consistent with the CWA's goal of protecting
and enhancing the quality of the nation's waters. These commenters
maintained that the proposed rule would not facilitate States' and
Tribes' ability to carry out their roles and responsibilities under the
CWA. Some commenters asserted that most federally licensed or permitted
projects may result in water quality impacts beyond just those from a
point source discharge, and argued that the appropriate scope of the
certification is the activity and not only the discharge. These
commenters provided examples of project impacts that they asserted may
affect water quality but would be tangential to the discharge itself,
including increased water withdrawals, releasing pollutants into
groundwater, increased erosion and sedimentation, reduced stormwater
infiltration, disconnecting ecosystems, and harming endangered species.
Other commenters expressed concern that limiting the scope of section
401 to discharges would not allow States and Tribes to address indirect
impacts from the project, such as impacts resulting from hydrological
changes or increases in impervious surfaces that result in high-
velocity runoff events that can deposit sediment or other pollutants
into waterways.
    The Agency recognizes the importance of protecting water quality
and that aquatic resources serve a variety of important functions for
protection of overall water quality. Ultimately, the Agency's
interpretation of section 401 is a legal interpretation that has been
established within the overall framework and construct of the CWA,
informed by important policy considerations and the Agency's expertise.
The purpose of this rulemaking is to provide a clear articulation of
what is authorized by CWA section 401, including the appropriate
procedures and scope of decision-making for water quality
certifications, that is supported by a robust and comprehensive legal
analysis of the statute. The federal licenses and permits that are
subject to section 401 are also subject to additional federal agency
statutory reviews, including the

National Environmental Policy Act, the Endangered Species Act, and the
National Historic Preservation Act, all of which are intended to
provide a comprehensive environmental evaluation of potential impacts
from a proposed project. In addition, where applicable, the CWA's
longstanding regulatory permitting programs, like those under sections
402 and 404, will continue to address water quality issues related to
the discharge of pollutants into waters of the United States, and the
CWA's non-regulatory measures, like protection of water quality from
nonpoint sources of pollution under section 319, will continue to
address pollution of water generally to achieve the objective of
restoring and maintaining the chemical, physical, and biological
integrity of the nation's waters. Section 401, on the other hand,
provides specific and defined authority for States and Tribes to
protect their water quality in the context of a federal licensing and
permitting process, including those processes in which State or Tribal
authority may otherwise be entirely preempted by federal law. The
language of section 401 makes it clear that this authority is limited
and does not broadly encompass all potential environmental impacts from
a project.
    Some commenters requested examples of what considerations would be
outside the scope of certification, based on the Agency's limiting the
scope of certification to discharges, rather than to the entire
activity or project. Commenters mentioned specific considerations that
they believed should be excluded from the scope of certification in the
regulatory text, such as effects caused by the presence of pollutants
in a discharge that are not attributable to the discharge from a
federally licensed activity, effects attributable to features of the
permitted activity besides the discharge, and effects caused by the
absence or reduction of discharge. The Agency generally agrees that
such considerations would be beyond the scope of certification as
articulated in this final rule; however, the Agency is not modifying
the regulatory text to reflect these specific considerations, as there
may be unique project-specific facts or circumstances that must inform
whether a particular impact is caused by the discharge, as defined in
this final rule.
b. Water Quality Requirements
    Under the final rule, the term ``water quality requirements'' means
applicable effluent limitations for new and existing sources (CWA
sections 301, 302, and 306), water quality standards (section 303),
toxic pretreatment effluent standards (section 307), and State or
Tribal regulatory requirements for point source discharges into waters
of the United States, including those more stringent than federal
standards. The definition in the final rule has been modified from the
proposal to provide additional clarity.
    The term ``water quality requirements'' is used throughout section
401, and the term ``other appropriate requirements of State law'' is
used in section 401(d), but neither of these terms is defined in the
CWA.\56\ Because the EPA interprets ``other appropriate requirements of
state law'' to be a subset of ``water quality requirements,'' the final
rule uses the term ``water quality requirements'' to define the
universe of provisions that certifying authorities may consider when
evaluating a certification request pursuant to CWA sections 401(a) and
401(d). The EPA's interpretation of these terms and the final
definition are intended to closely align the scope and application of
section 401 regulations with the text of the statute.
---------------------------------------------------------------------------

    \56\ In 1971, EPA Administrator Ruckelshaus provided a written
statement to the Chairman of the House Committee on Public Works
concerning H.R. 11896. H.R. Rep. No. 92-911, at 147-171 (1972). The
Administrator described 401(d) as it was drafted at the time as
requiring certifications to ``assure compliance with Sections 301
and 302 and `any other applicable water quality requirement in such
State.' '' Id. at 166. The Administrator noted that ``[t]he scope of
the catchall phrase is not defined in Section 401, and the question
arises as to whether certification by the State is to include
certification with respect to discharges from point sources to meet
the provisions of Sections 306 or 307.'' Id. The Administrator
stated that 401(d) could be ``more clearly expressed if the term
`applicable water quality requirement' was defined. . . .'' and then
offered an interpretation and a definition of the term. Id. The
Administrator's recommendation was not adopted in the enacted bill,
and this rulemaking is the first formal step the EPA has taken to
clarify the meaning of the terms in section 401(d).
---------------------------------------------------------------------------

    An interpretation of section 401 that most closely aligns with the
text of the statute would limit ``water quality requirements'' to
sections 301, 302, 303, 306 and 307 of the CWA and State and Tribal
laws and regulations that are either counterparts to or that implement
these enumerated sections of the Act. The EPA considered adopting this
interpretation in the final rule, but recognizes that, in some cases,
it may be difficult to determine whether a State or Tribal statute or
regulation was adopted ``to implement'' sections 301, 302, 303, 306 and
307 of the CWA. In many cases, State or Tribal statutes may have been
enacted prior to the 1972 CWA amendments, but updated or modified over
the decades to implement or incorporate portions of the enumerated CWA
provisions.
    To avoid placing a potentially burdensome factual inquiry on States
and Tribes, the final rule definition of ``water quality requirements''
is drafted more broadly to include those enumerated provisions of the
CWA and State and Tribal regulatory requirements that pertain
specifically to point source discharges into waters of the United
States. This is consistent with the plain language of the statute
because, with one exception, each of the enumerated CWA provisions in
section 401 describes discharge-related limitations. The only exception
is section 303, which addresses water quality standards, but these are
primarily used to establish numeric limits in point source discharge
permits. Further, and as described in section III.A of this notice,
section 401 applies only to actual or potential discharges into waters
of the United States. The final definition of ``water quality
requirements'' therefore closely aligns with the text of the statute,
while providing an objective test for whether a particular provision is
within the scope of section 401. The Agency anticipates that this
approach will increase clarity and efficiency in the certification
process. Under this final rule, a State or Tribal regulatory
requirement that applies to point source discharges into waters of the
United States is a ``water quality requirement'' and is therefore
within the scope of certification.
    The phrase ``state or tribal regulatory requirements for point
source discharges into waters of the United States'' in the final
rule's definition includes those provisions of State or Tribal law that
are more stringent than federal law, as authorized in CWA section 510.
33 U.S.C. 1370. The legislative history supports the EPA's
interpretation in this final rule. See S. Rep. No. 92-414, at 69 (1971)
(``In addition, the provision makes clear that any water quality
requirements established under State law, more stringent than those
requirements established under this Act, also shall through
certification become conditions on any Federal license or permit.'').
It is important to note, however, that these more stringent provisions
may not alter the scope of certification as provided in this final
rule. For example, nonpoint source discharges and discharges to other
non-federal waters are not within the scope of certification and are
not included in the definition of ``water quality requirements.''
Accordingly, they are not factors to be considered

when making decisions on certification requests.
    Some commenters agreed that the proposed definition limiting ``any
other appropriate requirement of state law'' to ``EPA-approved state or
tribal Clean Water Act regulatory program provisions'' is the correct
interpretation of the Act because section 401 cannot apply beyond the
authority of the CWA. These commenters agreed that the principle
ejusdem generis and the logic of Justice Thomas's dissent in PUD No. 1
show that the appropriate interpretation of ``any other appropriate
requirement of state law'' extends ``only to provisions that, like
other provisions in the statutory list, impose discharge-related
restrictions,'' which are the ``regulatory provisions of the CWA.''
Other commenters expressed confusion regarding the meaning and scope of
the phrase ``EPA-approved state or tribal Clean Water Act regulatory
program provisions'' in the proposed rule and asked for clarification
on which regulatory programs would be included in that term. Some
commenters stated that this lack of clarity made the scope of the
proposed rule ambiguous such that States and Tribes would not be able
to implement the regulations.
    The EPA has made some enhancements to the final rule definition of
``water quality requirements'' to provide better clarity and regulatory
certainty. The final rule does not require these State and Tribal
provisions to be EPA-approved. In making this change, the Agency
considered that there may be State or Tribal regulatory provisions that
address point source discharges into waters of the United States that
only partially implement certain CWA programs or that were not
submitted to the EPA for approval. The EPA also considered, as noted by
some commenters, that States and Tribes may submit to the EPA CWA
regulatory program provisions, including water quality standards and
applications for ``treatment as States'' (TAS), and wait months or
sometimes years for the EPA to act on those submittals. The final rule
language addresses this concern by broadening the universe of State and
Tribal laws that may be considered ``water quality requirements''
compared to the proposal.
    A few commenters expressed concern that the proposed rule failed to
recognize that most Tribes do not have EPA-approved water quality
regulations. These commenters asserted that in areas where the EPA is
the certifying authority, the Administrator would not be able to
consider water quality protective ordinances or water quality standards
adopted by Tribes, leaving no protection for most Tribal waters. The
EPA appreciates these comments, and under the final rule, State and
Tribal regulatory provisions for point source discharges into waters of
the United States are ``water quality requirements'' regardless of
whether they have been approved by the EPA. Therefore, if a Tribe has
adopted water quality standards under Tribal law that serve as a basis
for effluent limitations or other requirements for point source
discharges into waters of the United States, the certifying authority
must consider those provisions when evaluating a certification request.
    Some commenters asserted that the proposed rule would limit the
ability of a Tribe to adopt water quality regulations or to obtain TAS
for section 401 certifications. Neither the proposal nor the final rule
affect in any way the ability of a Tribe to adopt CWA water quality
standards or obtain TAS. The EPA understands there may be unique
challenges with Tribal implementation of CWA statutory authorities, but
reiterates that pursuant to section 401(b), the EPA is available and
obligated to provide technical expertise on any matter related to
section 401. In addition, the EPA actively and routinely provides
financial and technical assistance to Tribes for the development of
aquatic resource protection programs. Such assistance includes Tribal
capacity building for new or enhanced regulatory programs, as well as
development of laboratory, field, and quantitative methods, tools, and
trainings for monitoring and assessing aquatic resources. With this
final rule, the Agency is reaffirming its responsibilities under
section 401 to serve as a resource and consultant to Tribes requesting
technical assistance.
    Some commenters, citing the broad interpretation of ``any other
appropriate requirement of State law'' in EPA's Interim Handbook,
stated that the EPA has not provided an adequate explanation or
rationale for departing from its prior interpretation of the CWA. The
EPA disagrees with the suggestion that it has not provided sufficient
or adequate explanation for the interpretation presented in the
proposed rule. In any event, the final rule is based in part on the
plain language of section 401, which provides that the enumerated
sections of the CWA and ``any other appropriate requirement of State
law'' must be considered in a water quality certification. The CWA does
not define what is an ``appropriate requirement of State law,'' and the
EPA reasonably interprets this term to refer to a subset of ``water
quality requirements,'' a term that is also used throughout section
401. The final rule, like the proposal, is informed by the principle
ejusdem generis. Under this principle, where general words follow an
enumeration of two or more things, they apply only to things of the
same general kind or class specifically mentioned. See Wash. State
Dept. of Social and Health Services v. Keffeler, 537 U.S. 371, 383-85
(2003). Given the breadth of potential interpretations of ``water
quality requirements'' and ``other appropriate requirement of State
law'' described throughout this notice, the Agency concludes that the
most appropriate interpretation is one that remains loyal to the text
of the statute. Accordingly, the final definition of ``water quality
requirements'' includes sections 301, 302, 303, 306, and 307 of the CWA
and State or Tribal statutes and regulations governing point source
discharges into waters of the United States.
    A few commenters stated that the EPA's reliance on the canon of
statutory interpretation ejusdem generis is unfounded because, if the
context of a statute dictates an alternative interpretation, ejusdem
generis should not apply, citing N. & W. Ry. v. Train Dispatchers, 499
U.S. 117 (1991). The EPA disagrees with these commenters who assert
that the context of section 401(d) dictates a different result. The use
of the word ``appropriate'' in section 401(d) indicates that Congress
intended to limit the phrase ``requirement of state law'' in some
meaningful manner. It is reasonable to conclude that Congress intended
that limitation to be informed by the enumerated provisions of the CWA
that appear in section 401, as well as other key statutory touchstones
like the terms ``discharge'' and ``navigable waters,'' i.e., ``waters
of the United States.'' See Harrison v. PPG Industries, Inc., 446 U.S.
578, 578-79 (1980) (rejecting application of ejusdem generis where--
unlike the word ``appropriate'' in section 401(d)--the relevant
statutory phrase ``any other final action'' did not contain limiting
language that rendered its meaning uncertain and in need of further
interpretation). The phrase ``any other appropriate requirement of
State law'' in section 401(d) is not unlimited or expansive, but rather
it contains limiting language (``appropriate'') that must not be read
out of the statute. In short, the canon of statutory interpretation of
ejusdem generis is a tool that the EPA reasonably and properly used to
inform the interpretation of the ambiguous statutory text in section
401.
    Many commenters agreed with the analysis in the proposed rule
preamble

that section 401 focuses on protecting water quality and is not
intended to address other environmental impacts such as air emissions,
transportation effects, climate change, and other examples mentioned in
the preamble to the proposed rule. These commenters stated that the
proposed rule's definition of water quality requirements appropriately
ensures that the scope of certification addresses water quality
concerns within the scope of the CWA. A few commenters stated that the
legislative history for the CWA generally supports water quality as the
appropriate boundary for the scope of water quality certifications,
citing 116 Cong. Reg. 8,984 (Mar. 24, 1970), and S. Rep. No. 92-414
(1971). The EPA agrees with these commenters and concludes that the
final rule appropriately limits water quality certifications issued
under section 401 to water quality issues.
    Some commenters maintained that the proposed rule's definition of
water quality requirements would allow a certifying authority only to
consider numeric water quality criteria. Some commenters requested that
the definition of water quality requirements be revised to explicitly
include aquatic use criteria and impacts such as streamflow and water
quantity. Some commenters expressed concern that the scope of water
quality requirements under the proposed rule would no longer allow
States and Tribes to consider water quality standards that go beyond
the scope of, or are more stringent than, the CWA. Neither the proposed
definition of ``water quality requirements'' nor the final rule would
limit States to evaluating only numeric water quality criteria in a
certification review. While numeric water quality criteria are a
central element of a water quality certification, the final definition
allows States and Tribes to evaluate narrative water quality standards
and other regulatory requirements that apply to point source discharges
into waters of the United States.
    Some commenters requested that the final rule clarify that
requiring minimum in-stream flows is beyond the scope of water quality
requirements and that fish and wildlife impacts are not within the
proper scope of section 401, because those impacts are more
appropriately addressed under other federal statutes and regulations.
The EPA agrees that, in some cases, these elements may be beyond the
scope of section 401. However, neither the proposed rule nor the final
rule specify whether minimum flow conditions would be appropriate
certification conditions. Given the case-specific nature of such an
analysis, the final rule does not include categorical exclusions
requested by these commenters.
    Some commenters stated that the proposed rule would violate the
broad savings clause in section 510, which applies to any pollution
control or abatement requirement. These commenters asserted that
nothing in section 510 excludes conditions imposed under section 401.
These commenters further asserted that numerous courts have held that
sections 401 and 510 evince Congress' clear intent not to preempt but
to ``supplement and amplify'' State authority. The EPA interprets
section 401 as providing an opportunity for States and Tribes to
evaluate and address water quality concerns during the federal license
or permit processes, which, in some cases, might otherwise preempt
State authority. There is nothing in the text of section 401(d) that
supports the idea that States have unbounded authority--as a result of
section 510 or otherwise--to impose an unlimited universe of conditions
on an applicant for a federal license or permit. Any such conditions
must be--as the statute specifies--based on certain enumerated
provisions of the CWA and on any other ``appropriate'' requirements of
State law. As the Agency charged with administering the CWA, EPA is
authorized to interpret ``appropriate'' in a way that balances the
scope and focus of section 401 and State prerogative under section 510.
If Congress intended for section 401 to reserve all State authorities
over pollution control and abatement, as it did under section 510,
Congress could have specifically referenced section 510 within section
401. Congress did not do so, and instead cited to other specific
provisions of the CWA and referenced other ``appropriate'' requirements
of State law.
    In fact, the 1972 Senate Bill version of section 401(d) explicitly
referenced section 510 and provided that a certification could include
conditions necessary to assure that the applicant would comply with
``any more stringent water quality requirements under State law as
provided in section 510 of this Act . . .'' S. 2770, 92nd Cong. (1972).
This language was not included in the enacted bill, but the Senate Bill
version demonstrates that Congress considered including a reference to
section 510 within section 401, but did not do so. This is further
evidence that Congress did not intend section 401 to operate as a broad
savings clause for any pollution control or abatement requirement, as
some commenters assert.
    These commenters also fail to account for the use of the word
``appropriate'' in section 401(d) as a meaningful limitation on what
may be considered as part of the scope of certification under section
401. For the reasons stated above, the Agency concludes that State and
Tribal regulatory requirements for point source discharges into waters
of the United States properly allow States to participate in the
section 401 certification process, consistent with the CWA.
    As discussed throughout this section and as illustrated by public
comments, the terms ``water quality requirements'' and ``any other
appropriate requirement of state law'' lend themselves to a range of
potential interpretations. Informed by the public comments received,
the EPA considered a number of different interpretations prior to
finalizing the definition of the term ``water quality requirements.''
At one end of the spectrum, the Agency considered whether the text of
section 401(d) could mean that the only State or Tribal law-based
limitations allowed in a certification would be ``monitoring''
requirements ``necessary to assure'' that the applicant for a federal
license or permit will ``comply with'' ``any other appropriate
requirement of State law.'' While this may be a permissible
interpretation of section 401(d), and it may appear consistent with the
directive in CWA section 304(h) that the EPA establish test procedures
for the analysis of pollutants and factors that must be included in a
certification, the EPA is not adopting this interpretation in the final
rule. Such an interpretation would significantly limit the universe of
conditions related to ``appropriate requirements of State law'' to only
monitoring conditions and would be narrower than the interpretation set
forth in both the proposed and final rule. This interpretation also
would not provide any additional clarity as to the scope of State or
Tribal law that could be the basis for those monitoring conditions.
    At the other end of the spectrum, the EPA considered whether
section 401(d) certification conditions could be based on any State or
Tribal law, regardless of whether it is related to water quality. This
interpretation reflects the current practice of some certifying
authorities. The Agency rejected this broad and open-ended
interpretation of section 401(d) as inconsistent with the structure and
purposes of section 401 as reflected in the text of the provision,
including Congress's inclusion of the limiting modifier ``appropriate''
in the phrase ``any other appropriate requirement of State law.'' By
including the term ``appropriate,'' Congress placed at least some
limits on the phrase ``any other

. . . requirement of State law.'' The EPA concludes that such an open-
ended interpretation would be far more broad than the proposed rule and
the final rule, would exceed the scope of authority provided under the
CWA, and would further reduce regulatory certainty.
    The EPA also considered another broader interpretation that would
authorize certification conditions based on any State or Tribal water
quality-related provision. Such an interpretation could bring in
conditions that purport to address non-federal waters or that regulate
nonpoint source discharges. Some commenters stated that section 401
provided a broad grant of authority to States and Tribes to protect
water quality without limitations. These commenters asserted that to
interpret the statute otherwise would read ``any other appropriate
requirement of state law'' out of the statute. These commenters also
cited other cases that suggest that a broad scope of State laws may be
considered for a water quality certification. The EPA did not adopt
this broad interpretation in the final rule because the EPA concluded
that it is not required by the statute and is not the better reading of
section 401(d). Although the interpretation has some superficial
appeal, it errs by equating ``appropriate'' with ``any'' and thereby
fails to provide meaning to the word ``appropriate.'' Under the
familiar interpretative canon, no portion of a statute may be construed
as mere surplusage. Such an interpretation would also be inconsistent
with the regulatory framework of the CWA, which addresses point source
discharges from waters of the United States.
    Finally, the EPA considered an interpretation that would limit
water quality requirements to those provisions of State or Tribal law
that restore or maintain the physical, chemical, and biological
integrity of the nation's waters, consistent with CWA section 101(a).
These same principles could also be applied to only waters of the
United States, or narrowed to only include water quality requirements
that restore or maintain the chemical integrity of waters. Although
this may be a permissible interpretation of the statute, the EPA
concluded that it may not provide sufficient specificity or regulatory
certainty.
    The EPA considered all of these public comments and the varying
interpretations described above and is finalizing a definition of
``water quality requirements'' that strikes a balance among various
competing considerations while remaining loyal to the text of the CWA.
The final rule is a reasonable interpretation of the ambiguous
statutory text, is within the clear scope of the CWA, and will provide
additional clarity and regulatory certainty for certifying authorities,
project proponents, and federal licensing and permitting agencies.
c. Scope of Certification Conditions and Denials
    The scope of certification described above is the foundation of the
final rule and it informs all other provisions of the final rule,
including all actions taken by a certifying authority. Under this final
rule, certification conditions and denials must be within the scope of
certification as provided in section 121.3 of the final rule. In other
words, a condition must be necessary to assure that the discharge from
a proposed federally licensed or permitted project will comply with
water quality requirements, as defined at section 121.1(n) of this
final rule, and a denial must be due to the inability of a certifying
authority to determine that the discharge from the proposed project
will comply with water quality requirements.
    To promote transparency and to help assure that certifying
authorities understand and consider the appropriate scope of
information when developing a certification condition or issuing a
denial, the final rule also requires a certifying authority to include
specific information to support each condition or denial. These
requirements help to build a comprehensive administrative record and to
document the certifying authorities' basis for the condition or denial.
As discussed in greater detail in section III.G.2.b of this notice,
this final rule requires that the following information be included in
a certification to support each condition:
    1. A statement explaining why the condition is necessary to assure
that the discharge from the proposed project will comply with water
quality requirements; and
    2. A citation to federal, state, or tribal law that authorizes the
condition.
    Similarly, as discussed in greater detail in section III.G.2.c of
this notice, the final rule requires that the following information be
included in a denial of certification:

    1. The specific water quality requirements with which the
discharge will not comply;
    2. A statement explaining why the discharge will not comply with
the identified water quality requirements; and
    3. If the denial is due to insufficient information, the denial
must describe the specific water quality data or information, if
any, that would be needed to assure that the discharge from the
proposed project will comply with water quality requirements.

    These requirements are intended to increase transparency and ensure
that any limitation or requirement added to a certification, and any
denial, is within the scope of certification.
    As discussed in section II.G.1.a of this notice, the EPA is aware
that some certifying authorities may have previously interpreted the
scope of section 401 to include non-water quality-related
considerations. For example, the EPA understands some certifying
authorities have included conditions in a certification that have
nothing to do with effluent limitations, monitoring requirements, water
quality, or even the CWA. Such requirements were perhaps based on other
non-water quality-related federal statutory or regulatory programs
(NEPA, ESA), or on concerns about environmental media other than water.
Or such requirements might have been related to State, Tribal, or local
laws, policies, or guidance that are unrelated to the regulation of
point source discharges to waters of the United States. Similarly, the
EPA is aware of circumstances in which some States have denied
certifications on grounds that are unrelated to water quality
requirements and that are beyond the scope of CWA section 401.\57\ The
EPA does not believe that such actions are authorized by section 401,
because they go beyond assuring that ``discharges'' from federally
licensed or permitted activities comply with ``water quality
requirements.'' See also section II.G.1 of this notice for further
discussion of the terms ``discharge'' and ``water quality
requirements.''
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    \57\ See Letter from Thomas Berkman, Deputy Commissioner and
General Counsel, New York State Department of Environmental
Conservation, to Georgia Carter, Vice President and General Counsel,
Millennium Pipeline Company, and John Zimmer, Pipeline/LNG Market
Director, TRC Environmental Corp. (Aug. 30, 2017) (denying section
401 certification because ``FERC failed to consider or quantify the
effects of downstream [greenhouse gas emissions] in its
environmental review of the Project'').
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    Some commenters provided comment regarding the appropriate scope of
denials. These commenters asserted that the proposed scope of review
would limit a certifying authority's ability to deny certification. A
few commenters asserted that states should be able to deny
certification if any state requirements would not be met. Other
commenters argued that the scope of denial should be limited to just
those CWA provisions enumerated in section 401(a). As discussed in
section III.D of this notice, the final rule provides a

certifying authority the ability to deny certification if it is unable
to certify that the proposed discharge will comply with ``water quality
requirements'' as defined in this rule. The Agency disagrees with
commenters who asserted that a certifying authority should be able to
deny certification if any State or Tribal requirements would not be
met. As discussed above in section III.E.2.b of this notice, extending
the scope of review to any State or Tribal law would be inconsistent
with Congress's inclusion of the limiting modifier ``appropriate'' in
the phrase ``any other appropriate requirement of State law,'' and the
Agency is not finalizing the proposed alternative interpretation that
would limit the scope of denials to the CWA provisions enumerated in
section 401(a). The Agency's interpretation of the scope of
certification, including the scope of denials, strikes a balance among
competing considerations while remaining loyal to the text of the CWA.
    Many commenters specifically addressed the appropriate scope of
conditions. Some commenters urged the EPA not to use a small number of
examples of conditions that did not directly relate to protecting water
quality to justify narrowing the scope of certification conditions.
These commenters provided additional examples of conditions that
certifying authorities have included in certifications, such as
building and maintaining fish passages, compensatory mitigation,
temporal restrictions on activities to mitigate hazards or protect
sensitive species, pre-construction monitoring and assessment of
resources, habitat restoration, tree planting along waterways, spill
management plans, stormwater management plans, and facilitating public
access. The EPA appreciates commenters' providing additional examples
of certification conditions. The EPA agrees that in many instances,
each of these examples may be beyond the scope of certification as
articulated in this final rule. However, there may be unique project-
specific facts or circumstances, including the nature of the discharge
and applicable water quality standards and related designated uses,
that must inform whether a particular condition is within the scope of
certification, as defined in this final rule.
    A few commenters stated that narrowing States' and Tribes' ability
to condition licenses and permits may lead to more certification
denials. The EPA disagrees with these commenters, as the scope of
certification in the final rule informs the scope of appropriate
conditions and the appropriate bases for denial. In other words, if
this final rule would preclude a State from requiring tree planting as
a certification condition, the final rule would also preclude a State
from denying certification based on a lack of trees planted in or
around the project area.
    Some commenters stated that limiting the proposed definition of
``water quality requirements'' to exclude State laws that are not EPA-
approved would preclude conditions based on State-required riparian
buffers, erosion and sedimentation controls, chloride monitoring,
mitigation, fish and wildlife protection, drinking water protections,
fish ladders, and adaptive management measures. As discussed above, the
Agency is finalizing a definition of ``water quality requirements''
that removes the condition that State or Tribal law requirements must
be ``EPA-approved.'' Under the final rule, the definition of ``water
quality requirements'' includes ``state or tribal regulatory
requirements for point source discharges into a water of the United
States,'' and includes State or Tribal provisions that are more
stringent than federal requirements.
    One commenter suggested that instead of limiting section 401
certification conditions to water quality-related conditions, the EPA
should consider having each State define the reserved authorities under
section 401 that it intends to apply in a certification, as well as the
types of discharges associated with those State authorities. The EPA
disagrees with this commenter's suggestion, as it would result in a
greater patchwork of State regulations, with potentially every State
establishing a different scope of certification and a different range
of discharges that may be subject to certification in each State. One
principal goal of this rulemaking is to provide greater clarity,
regulatory certainty, and predictability for the water quality
certification process. Finalizing a rule like the one suggested by this
commenter would undercut those outcomes significantly.
    The EPA recognizes that, historically, many State and Tribal
certification actions have reflected an appropriately limited
interpretation of the purpose and scope of section 401. However, as
discussed above, the Agency is also aware that some certifications have
included conditions that may be unrelated to water quality, including
many of the types noted above, such as requirements for biking and
hiking trails to be constructed, one-time and recurring payments to
State agencies for improvements or enhancements that are unrelated to
the proposed federally licensed or permitted project, and public access
for fishing and other activities along waters of the United States.
Using the certification process to yield facility improvements or
payments from project proponents that are unrelated to water quality
impacts from the proposed federally licensed or permitted project is
inconsistent with the authority provided by Congress.
    Some commenters stated that the EPA should clarify in the final
rule that certification conditions must be directly related to impacts
to water quality requirements from the project proponent's activity,
and not water quality concerns caused by other entities. One commenter
stated that the guiding principle for courts tasked with determining
the propriety of section 401 certification conditions has been whether
the condition was designed to directly address water quality effects
caused by the licensee's or permittee's activity, and courts have
emphasized that state agencies evaluating requests for water quality
certifications may not consider the effects of activities other than
those being licensed. This commenter recommended that the EPA revise
section 121.5(d) of the proposed rule to state, ``Any condition must
directly address a water quality effect caused by the particular
activity for which the applicant is seeking a license or permit.'' The
EPA agrees with these commenters that certification conditions must be
directly related to water quality impacts from the proposed project.
However, the EPA has concluded that the requirements in section
121.7(d) of the final rule accomplish the commenter's request, and the
EPA did not modify the final rule to include what EPA believes would be
a redundant provision. The EPA is also aware of certification
conditions that purport to require project proponents to address
pollutants that are not discharged from the construction or operation
of a federally licensed or permitted project. As discussed in this
section, certification conditions must be necessary to assure that the
discharge from a proposed federally licensed or permitted project will
comply with water quality requirements, because this is the extent of
authority provided in section 401.
    The Agency proposed a definition for ``condition'' in an attempt to