the EPA Administrator of such certification and application. 33 U.S.C.
1341(a)(2). The 1971 Rule established some procedural requirements for
this process,\59\ which EPA updated in 2020. The 2020 Rule includes
additional specificity on the timing of Federal agency notification but
did not contain a standardized process for notification. 40 CFR
121.12(a). Instead, the Agency relies on Federal agencies to develop
notification

processes and procedures that work within their licensing or permitting
programs. 85 FR 42273.
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    \59\ See 40 CFR part 121, subpart B (2019).
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    The Agency is proposing to clarify what actions initiate the
section 401(a)(2) process and when Federal agencies must provide
notification to EPA under section 401(a)(2). Additionally, the Agency
is proposing procedures for Federal agencies to follow when providing
notification to EPA. Section 401(a)(2) provides that the Federal
licensing or permitting agency must ``immediately'' notify the EPA
Administrator upon receipt of an application and certification. 33
U.S.C. 1341(a)(2). Under the 1971 Rule, EPA's section 401(a)(2) review
was initiated upon receipt of either a certification or a waiver, which
was treated as a substitute for certification. See 40 CFR 121.11,
121.16 (2019). In the 2020 Rule, EPA's section 401(a)(2) review is
initiated upon receipt of a certification. 40 CFR 121.12(a); see 85 FR
42287. As discussed below, EPA is proposing to return to the approach
taken in the 1971 Rule at proposed Sec.  121.12.
    Although the statutory text does not explicitly identify waiver of
certification as an action that initiates section 401(a)(2) review,\60\
the Agency proposes that it is appropriate to treat the waiver of
certification as a substitute for a grant of certification for purposes
of section 401(a)(2) review for several reasons. First, this treatment
is consistent with the purpose of section 401(a)(2). Section 401(a)(2)
provides neighboring jurisdictions with an opportunity to object to
federally licensed or permitted discharges originating in other
jurisdictions, where they determine the discharge will violate their
water quality requirements. A waiver does not indicate a certifying
authority's substantive opinion regarding the water quality
implications (for itself or another jurisdiction) of a proposed
activity or discharge. Rather, a certifying authority may waive
certification for a variety of reasons, including a lack of resources
to evaluate the project. In addition, a certifying authority may be
deemed to have waived certification for various reasons, including if
that certifying authority fails or refuses to act on a request for
certification before the end of the reasonable period of time. See
section V.F in this preamble for further discussion on waivers.
Ultimately a waiver of certification allows the Federal licensing or
permitting agency to issue its license or permit without receipt of a
water quality certification. As a result, a waived certification could
result in water quality impacts that might violate a neighboring
jurisdiction's water quality requirements. It seems reasonable to
afford a mechanism for EPA and a neighboring jurisdiction to evaluate
that possibility. Second, this approach is consistent with the Agency's
approach to section 401(a)(2) for over 50 years. See 40 CFR 121.16
(2019). Therefore, consistent with the approach taken in the 1971 Rule,
the Agency is proposing to restore the interpretation that waivers, in
addition to certifications, initiate the section 401(a)(2) process.
---------------------------------------------------------------------------

    \60\ See section 401(a)(2) (``Upon receipt of such application
and certification the licensing or permitting agency shall
immediately notify the Administrator of such application and
certification.'') (emphasis added).
---------------------------------------------------------------------------

    Additionally, the Agency is proposing to clarify the term
``application'' as applied to section 401(a)(2). Section 401(a)(2)
requires a Federal licensing or permitting agency to notify EPA upon
receipt of application and certification. 33 U.S.C. 1341(a)(2). Section
401 uses the term ``application'' throughout section 401(a); however,
when read in context, the term is used for both ``applications for
certification'' and ``applications for such Federal license or
permit.'' The Agency considers the ``request for certification'' to be
an ``application for certification.'' See section V.C in this preamble
for further discussion on a request for certification. In the context
of section 401(a)(2), the term ``application'' is used to refer to the
``application for such Federal license or permit.'' Id. As a result,
section 401(a)(2) is initiated upon the Federal licensing or permitting
agency's receipt of such Federal license or permit application and
either a section 401 certification or a waiver of certification.
However, the Agency is aware that there are instances where a Federal
license or permit application does not accompany a certification or
waiver (e.g., certification on general permits or Corps civil works
projects). To account for Federal agencies' different licensing or
permitting practices, the Agency is proposing to clarify that the term
``application'' in this regulation means the license or permit
application to a Federal agency, or if available, a draft license or
permit.\61\ See proposed Sec.  121.1(c).
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    \61\ For this proposed rulemaking, EPA is not suggesting that
Corps civil works projects are exempt from section 401(a)(2)
processes, even though there are no ``applications'' or draft
licenses or permits. Rather, EPA expects the Corps to determine how
best to comply with all section 401 requirements. Compliance may
involve the Corps sending a project study in conjunction with a
certification or a waiver of certification.
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    As noted, the Agency is further seeking to clarify when a Federal
agency must provide notification to EPA under section 401(a)(2) and is
proposing basic procedures for Federal agencies to follow when
providing such notification. As discussed above, section 401(a)(2)
provides that the Federal licensing or permitting agency must
``immediately'' notify the EPA Administrator upon receipt of an
application for a Federal license or permit and certification. See 33
U.S.C. 1341(a)(2). EPA seeks to clarify that a Federal agency is only
considered to be in receipt of an application for a license or permit
and certification within the meaning of section 401(a)(2) when such
agency has received both an application for a license or a permit, as
discussed above, and has either received a corresponding certification
or a waiver has occurred.\62\ It is typical for Federal agencies to
receive applications for licenses or permits in advance of receipt of
certification or waiver. In such circumstances, it would be premature
for the Federal agency to provide EPA with notification under section
401(a)(2) until it has also received the certification or waiver has
occurred and the statute accordingly only requires notification to EPA
when the certifying agency is in possession of both.\63\
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    \62\ Although this statutory language is unambiguous, EPA is
further discussing when receipt occurs due to questions and
conflicting practices among Federal licensing and permitting
agencies.
    \63\ It is necessary that certification or waiver occur for EPA
to make a determination as to whether a discharge from the activity
``may affect'' the water quality of a neighboring jurisdiction under
section 401(a)(2), as EPA only makes such a determination where
certification or waiver has occurred, and considers any conditions
included in a certification in making this determination.
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    Furthermore, to aid in clarity and implementation, the Agency is
proposing to retain the 2020 Rule interpretation of ``immediately'' to
mean within five days of the Federal agency's receipt of the
application for a Federal license or permit and either receipt of
certification or waiver. Under the 2020 Rule, the Agency also
interprets the term ``immediately'' to mean within five days of the
Federal agency receiving notice of application and certification to
encourage clear, consistent timing of the notification to EPA. 40 CFR
121.12(a); see 85 FR 42273. The Agency is not aware of any practical
challenges or issues posed by this timeframe. The Federal agency needs
some amount of time to process receipt of the permit or license
application and certification or waiver from the project proponent or
certifying authority, review the received materials, which might be
substantial, and then transmit notice to the appropriate EPA regional
office. EPA considers five days a prompt yet

reasonable amount of time to complete this process. EPA is soliciting
comment on whether it should interpret ``immediately'' in this context
to mean a different period of time than five days, and whether five
days provides Federal agencies with sufficient time to provide notice
to EPA or if additional time is required.
    Although the text of section 401(a)(2) requires a Federal agency to
notify EPA upon receipt of an application and certification, it does
not define the contents of such notification. 33 U.S.C. 1341(a)(2). The
1971 Rule and 2020 Rule provided some direction on information that
could be submitted to EPA as part of the section 401(a)(2) process, but
neither regulation defined the contents of the section 401(a)(2)
notification. See 40 CFR 121.12(b); 40 CFR 121.13 (2019).
    The 1971 Rule provided that upon receipt of application for a
license or permit with an accompanying certification, the Federal
agency shall forward copies of the application and certification to the
Regional Administrator. 40 CFR 121.11 (2019). It further stated that
only those portions of the application which relate to water quality
shall be forwarded to the Regional Administrator and allows for the
Regional Administrator to ask for supplemental information if the
documents forwarded do not contain sufficient information to make the
determination provided for in Sec.  121.13. See 40 CFR 121.12 and
121.13 (2019). In the preamble to the 2020 Rule, EPA said it expects
Federal agencies to develop notification processes and procedures but
noted that the Administrator could request copies of the certification
and application. 85 FR 42273. During implementation of the 2020 Rule,
some but not all agencies have developed their own procedures, and
these procedures have varied between agencies and across the country.
    To provide consistency and to streamline the notification process,
EPA is proposing to add regulatory text defining the minimum level of
information that must be included in the notification to EPA. The
Agency is proposing that the notification be in writing and contain a
general description of the proposed project, including but not limited
to: permit or license identifier, project location information (e.g.,
latitude and longitude), a project summary including the nature of any
discharge and size or scope of activity, and whether the Federal agency
is aware of any neighboring jurisdiction providing comment on the
project. If the Federal agency is aware that a neighboring jurisdiction
provided comment on the project, the notification shall include a copy
of those comments. Additionally, the notification shall include a copy
of the certification or notice of waiver, and the application, as
defined at proposed Sec.  121.1(c). If supplemental information is
needed to make a determination pursuant to section 401(a)(2), the
Regional Administrator may ask for it in writing with a timeframe for a
response, and the Federal agency shall obtain that information from the
project proponent and forward the additional information to the
Regional Administrator within the specified timeframe. If supplemental
information is not provided in a timely manner, EPA may consider that
lack of information as a factor in its ``may affect'' determination.
The Agency may also develop agreements with Federal agencies to refine
the notification process and the provision of supplemental information.
The Agency is soliciting comment on the proposed aspects of the
notification process, including the timing and the contents of the
Federal agency notification to EPA.
2. EPA's Role Under Section 401(a)(2)
    Section 401(a)(2) states that whenever a discharge ``may affect, as
determined by the Administrator, the quality of the waters of any other
State,'' the Administrator must notify the other neighboring
jurisdiction, Federal agency, and the project proponent of their
determination within thirty days of the date of notice of the
application. 33 U.S.C. 1341(a)(2). Under the 1971 Rule, the Regional
Administrator was required to review the Federal license or permit
application, the certification, and any supplemental information
provided to EPA, and, if the Regional Administrator determined that
there was ``reason to believe that a discharge may affect the quality
of the waters of any State or States other than the State in which the
discharge originates,'' the Regional Administrator would notify the
affected jurisdictions within thirty days of receipt of the application
materials and certification. See 40 CFR 121.13 (2019).
    Similarly, the 2020 Rule acknowledges EPA's responsibility to
notify a neighboring jurisdiction whenever it determined that a
discharge from the certified activity may affect the water quality of
the neighboring jurisdiction. 40 CFR 121.12(b), 85 FR 42274. However,
the 2020 Rule asserted that it was within the Agency's discretion
whether to make a ``may affect'' determination in the first place, and
that EPA was, therefore, not required to make such a determination. 85
FR 42273. Additionally, the 2020 Rule does not clearly state in either
regulatory text or the preamble whether there are specific factors that
the Administrator must consider in making a ``may affect''
determination and whether any other interested party can be involved
when EPA is making a ``may affect'' determination. Id. During the pre-
proposal outreach, stakeholders raised concerns that EPA had not
clearly identified what factors it intended to use in determining
whether a discharge ``may affect'' the water quality of a neighboring
jurisdiction. Stakeholders also objected to EPA asserting sole
discretion over this ``may affect'' determination without obtaining
input from the neighboring jurisdiction or other stakeholders.
    To date, only one Federal district court has addressed EPA's
obligation to make a determination pursuant to section 401(a)(2). In
Fond du Lac, the court addressed two issues concerning section
401(a)(2): (1) whether EPA is required to make a ``may affect''
determination and (2) whether EPA's ``may affect'' determination is
judicially reviewable. 519 F.Supp.3d 549.The court concluded that EPA
is required to determine whether the discharge may affect the quality
of a neighboring jurisdiction's waters. In coming to this conclusion,
the court examined the statutory text and found that it requires EPA to
make ``a discrete factual determination . . . within a specific
timeframe . . . based on an application and certification . . . .'' Id.
at 564. The court further concluded that Federal courts have the
jurisdiction to review EPA's ``may affect'' determination. The court
did not opine on the specific meaning of ``may affect'' means or
factors that EPA should consider in making a ``may affect''
determination.
    EPA agrees with the Fond du Lac court that EPA must determine
whether a discharge ``may affect'' a neighboring jurisdiction once it
receives notification of the application and certification or waiver,
and EPA is proposing to revise the regulation accordingly. When EPA is
the Federal licensing or permitting agency (e.g., EPA-issued NPDES
permits), EPA intends to include such ``may affect'' determination in
the administrative record for the permit action. EPA is further
proposing that, in making a ``may affect'' determination, EPA has the
discretion to look at a variety of factors depending on the type of
license or permit and discharge. Factors that EPA could consider in
making a ``may affect'' determination include, but are not limited to,
the type of project and discharge covered in the license or permit, the
proximity of the project and discharge to other

jurisdictions, certification and other conditions already contained in
the draft license/permit, and the neighboring jurisdiction's water
quality requirements. Given the range of Federal licenses or permits
that are covered by CWA section 401(a)(2) and EPA's discretion to look
at various factors, EPA is not proposing to identify specific factors
EPA must analyze in making a ``may affect'' determination. Indeed, as
each ``may affect'' determination is likely to be fact-dependent and
based on situation-specific circumstances, EPA is uncertain that
providing a required list of factors is possible. However, in the
interest of transparency, EPA is asking for comment on whether such a
list of specific factors that EPA must consider in making a ``may
affect'' determination should be set forth in regulation and, if so,
what factors should be included.
    EPA is further clarifying that, once it receives notice from a
Federal agency initiating its obligation to make a ``may affect''
determination, it is within EPA's sole discretion to examine the facts
and determine whether the discharge ``may affect'' the quality of a
neighboring jurisdiction's waters. Section 401(a)(2) provides that
``[w]henever such a discharge may affect, as determined by the
Administrator. . . .'' 33 U.S.C. 1341(a)(2) (emphasis added). EPA
interprets this language as providing the Agency with sole discretion
in making a ``may affect'' determination. Accordingly, EPA is not
required to engage with stakeholders or seek their input in making this
determination. If an interested party does not agree with EPA's
determination, that interested party may have recourse under the
Administrative Procedure Act as discussed in Fond du Lac. However, in
making its ``may affect'' determination, the Agency does intend to
consider the views of other jurisdictions if provided in a timely
manner. As discussed above, the Agency is proposing to define the
contents of a Federal agency's notification to EPA to include an
indication of whether any neighboring jurisdictions have expressed
water quality concerns or provided such comment on the project.\64\
Other factors informing the Agency's ``may affect'' determination
evaluation are discussed above, including the nature of the neighboring
jurisdiction's water quality requirements.
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    \64\ There are other opportunities for stakeholders to provide
input into the certification and licensing or permitting process,
including the public notice and comment processes on the
certification and the license or permit.
---------------------------------------------------------------------------

    After receiving notification from the Federal licensing or
permitting agency, EPA has 30 days to complete its ``may affect''
determination evaluation. 33 U.S.C. 1341(a)(2). If EPA determines that
the discharge may affect a neighboring jurisdiction's water quality,
EPA must notify the neighboring jurisdiction, the Federal licensing or
permitting agency, and the project proponent. Id. EPA is proposing to
retain regulatory text similar to 40 CFR 121.12(c) that clarifies which
stakeholders EPA must notify upon making a ``may affect''
determination. The Agency is also proposing to define the contents of
such notification similar to the 2020 Rule. The 1971 Rule did not
define the contents of a ``may affect'' notification from EPA to a
neighboring jurisdiction, Federal agency, and project proponent.
However, the 1971 Rule provided that EPA must send the neighboring
jurisdiction a copy of the application and certification it received to
initiate the section 401(a)(2) process. 40 CFR 121.14 (2019). The 2020
Rule defines the contents of EPA's notification. 40 CFR 121.12(c)(1).
EPA is proposing to revise the provision from the 2020 Rule and clarify
that its notification shall be in writing and shall include a statement
that the Agency has determined that the discharge may affect the
neighboring jurisdiction's water quality, as well as a description of
the next steps in the section 401(a)(2) process, a copy of the
certification or waiver, and a copy of the license or permit
application. See proposed Sec.  121.13. The proposed regulation also
retains similar text as the 2020 Rule that, once EPA makes a ``may
affect'' determination, a Federal license or permit may not be issued
pending the conclusion of the section 401(a)(2) process, as described
in further detail below. Accordingly, the Agency is proposing to remove
the regulatory provision located at Sec.  121.9(e) which provides that
a Federal agency may issue a license or permit upon issuance of a
written notice of waiver. As discussed above, waivers also trigger the
section 401(a)(2) process and EPA may make a ``may affect''
determination based upon a waiver of certification. Consistent with the
proposed language at Sec.  121.13(d), a Federal agency may not issue a
Federal license or permit until the section 401(a)(2) process
concludes.
    Upon completion of its ``may affect'' determination evaluation, if
EPA does not find that a discharge from the activity may affect the
water quality of a neighboring jurisdiction, then EPA is not required
to provide notification of its determination. See 33 U.S.C. 1341(a)(2).
If a Federal licensing or permitting agency does not receive
notification from EPA that the discharge may affect a neighboring
jurisdiction's water quality within 30 days after proper notification,
then the Federal agency may proceed with processing the license or
permit.
3. Neighboring Jurisdiction's Role Under Section 401(a)(2)
    CWA section 401(a)(2) states that if, within sixty days after
receipt of EPA's notification, such other State determines that such
discharge will affect the quality of its waters so as to violate any
water quality requirements in such State, and within such 60 day period
notifies the Administrator and the licensing or permitting agency in
writing of its objection to the issuance of such license or permit and
requests a public hearing on such objection, the licensing or
permitting agency shall hold such a hearing. 33 U.S.C. 1341(a)(2). The
1971 Rule did not describe the contents or form that such an objection
notification must take. However, the 2020 Rule clarifies that the
objection notification must identify the receiving waters that are
determined to be affected and identify the specific water quality
requirements that will be violated. 40 CFR 121.12(c)(2); 85 FR 42274.
    In this rule, EPA is proposing to revise the specific requirements
for what a neighboring jurisdiction is required to include in an
objection notification sent pursuant to section 401(a)(2). Initially,
as required by the statute, the neighboring jurisdiction must act
within 60 days of receipt of EPA's notification, and must provide its
objection and request for public hearing in writing to EPA and the
licensing and permitting authority. EPA is also proposing that the
objection notification be sent to the certifying authority. Further,
EPA is proposing that the neighboring jurisdiction include an
explanation of the reasons supporting its determination that the
discharge will violate its water quality requirements, including but
not limited to identifying any water quality requirements that will be
violated. This will allow EPA and the Federal licensing or permitting
agency to understand the basis for the objection. EPA is not proposing
to retain the regulatory text requiring the neighboring jurisdiction to
identify the receiving waters that will be affected by the discharge.
However, EPA anticipates this information will likely be included in
the neighboring jurisdiction's explanation of the reasons supporting
its determination that the discharge will violate its water quality
requirements. EPA is not proposing to require the neighboring
jurisdiction to identify a

license or permit condition that it thinks would resolve the objection;
however, EPA encourages neighboring jurisdictions to offer such a
condition or conditions and is requesting comment on whether this
element should be required by regulation.
4. Objection and Public Hearing Process Under Section 401(a)(2)
    As discussed above, a neighboring jurisdiction must request a
public hearing from the Federal licensing or permitting agency as part
of its objection. CWA section 401(a)(2) does not provide for a specific
process for the section 401(a)(2) public hearing. It merely states
that, if a neighboring jurisdiction objects to a Federal license or
permit and requests a public hearing within the 60-day timeframe, the
Federal licensing or permitting agency must hold a hearing. 33 U.S.C.
1341(a)(2). The statute further provides that the EPA Administrator
must submit an evaluation and recommendations regarding the objection
at the hearing. Id. In addition, section 401(a)(2) states that
additional evidence may be presented at the hearing. After the public
hearing, the Federal licensing or permitting agency must consider the
recommendations of the neighboring jurisdiction and EPA Administrator
as well as any additional evidence presented at the hearing and, based
on that information, must condition the license or permit as may be
necessary to ensure compliance with applicable water quality
requirements. If additional conditions cannot ensure compliance with
applicable water quality requirements, the license or permit cannot be
issued. Id. Notably, the statute is silent as to whether public notice
of the public hearing is required; the nature of, and specific
procedures for, the public hearing; the need for a court reporter or
transcript; whether the Federal licensing or permitting agency's
decision is appealable; and other such matters.
    The 1971 Rule provided that, in cases where the Federal licensing
or permitting agency held a public hearing on the objection raised by a
neighboring jurisdiction, the licensing or permitting agency was
required to forward notice of such objection to the Regional
Administrator no later than 30 days prior to the hearing. 40 CFR 121.15
(2019). At the hearing, the Regional Administrator was required to
submit an evaluation and ``recommendations as to whether and under what
conditions the license or permit should be issued.'' Id. EPA retained
these requirements in the 2020 Rule. 40 CFR 121.12(c)(3); 85 FR 42274.
    The Agency is proposing to add transparency to the section
401(a)(2) process by requiring the Federal agency to provide for a
minimum of a 30-day public notice of the hearing. This will allow for
notice to all interested parties, including the neighboring
jurisdiction and EPA, and provide adequate time for such parties to
determine whether they have any interest in attending the public
hearing. EPA is not defining the type of public hearing that the
Federal agency must hold since many Federal agencies have their own
regulations regarding public hearings on permits and licenses; however,
EPA recommends that the public hearing would be one at which the
Federal agency accepts comments and additional evidence on the
objection. EPA defers to the Federal agency to decide whether the
public hearing would be conducted in-person and/or remotely through
telephone, online, or other virtual platforms depending on the
circumstances and the Federal agency's public hearing regulations.
    As discussed, section 401(a)(2) provides that the EPA Administrator
shall submit an evaluation and recommendations on the objection raised
by the neighboring jurisdiction at the hearing conducted by the Federal
licensing or permitting agency. The statutory text does not elaborate
on how the Administrator is to develop its evaluation and
recommendations or what specific elements it must include. Accordingly,
the statute provides EPA with considerable discretion in developing its
evaluation and recommendations.
    EPA interprets its role in providing the evaluation and
recommendations on the neighboring jurisdiction's objection as that of
an objective and neutral evaluator providing recommendations to the
licensing or permitting Federal agency based upon its expert, technical
analysis of the record before it. EPA intends to conduct its evaluation
and make any recommendations based on the information before it, giving
equal consideration to the information and views--if provided--by
interested parties, including the objecting neighboring jurisdiction,
project proponent, and certifying authority. Consistent with this
approach, as a general matter EPA does not intend to invite comment and
input from, or engage with, interested parties when developing its
evaluation and recommendations on the objection. However, EPA may,
where it deems it appropriate, seek additional information from a
neighboring jurisdiction regarding its objection to be sure EPA is able
to develop an informed and well-supported evaluation and accompanying
recommendations. This approach to developing its evaluation and
recommendations is consistent with the hearing process established by
section 401(a)(2), which recognizes a role for the neighboring
jurisdiction independent of the Agency and allows for presentation of
evidence at the hearing by any interested stakeholder, including the
neighboring jurisdiction. If a stakeholder agrees or disagrees with
EPA's evaluation and recommendations presented at the hearing, such
stakeholder may have an opportunity to provide additional information
and comment directly to the Federal agency for its consideration.
    After conducting the public hearing, pursuant to CWA section
401(a)(2), the Federal licensing or permitting agency must consider the
recommendations of the neighboring jurisdiction and EPA, as well as any
additional evidence presented at the hearing, as it determines whether
additional permit or license conditions are necessary to ensure
compliance with applicable water quality requirements. 33 U.S.C.
1341(a)(2). The Act does not accord special status to EPA's evaluation
and recommendations compared with the neighboring jurisdiction's input
or other evidence received at the hearing; rather, the section appears
to contemplate that the Federal agency will consider all of the
information presented in making its decision. If the Federal licensing
or permitting agency determines that additional conditions may be
necessary to ensure compliance with the neighboring jurisdiction's
water quality requirements, the Federal licensing or permitting agency
must include those conditions in the Federal license or permit. In
addition, if the Federal licensing or permitting agency cannot include
conditions that will ensure compliance with applicable water quality
requirements, the Federal agency cannot issue the license or permit.
EPA is proposing to specifically incorporate these statutory
requirements in regulatory language.
    EPA is not, however, proposing to establish a deadline by which the
Federal licensing or permitting agency must make a determination after
the public hearing. EPA is requesting comment on whether such a
deadline should be established.
    CWA section 401(a)(2) states that if the neighboring jurisdiction
notifies EPA and the licensing or permitting agency ``in writing of its
objection to the issuance of [the] license or permit and requests a
public hearing on such objection, the licensing or permitting agency
shall hold such a hearing.'' 33

U.S.C. 1341(a)(2). For a hearing to be required under section
401(a)(2), there must be (1) a written objection from the neighboring
jurisdiction and (2) a request for a public hearing on the objection.
Id. EPA is proposing that if one of these elements is not present, the
Federal agency is not required to hold a hearing. If a neighboring
jurisdiction can resolve its concerns with the Federal licensing or
permitting agency before a public hearing is held, then under this
proposed approach, the neighboring jurisdiction could withdraw its
objection and, as a result, a public hearing would not be required. EPA
does not assume that a withdrawal of a written objection would
eliminate the need for the Federal licensing or permitting agency to
comply with its own public notice requirements if resolution of the
objection results in a change to the permit or license. EPA is
requesting comment on whether a neighboring jurisdiction could withdraw
its objection before the hearing is held and, thus, eliminate the
requirement to hold a public hearing. EPA is also requesting comment on
whether it should develop any regulatory text to clarify this aspect of
the section 401(a)(2) process.

L. Treatment in a Similar Manner as a State Under Section 401

    This proposed rulemaking would add provisions enabling tribes to
obtain treatment in a similar manner as a state (TAS) solely for
section 401, as well as provisions on how tribes can obtain TAS for the
limited purpose of participating as a neighboring jurisdiction under
section 401(a)(2). These proposed provisions provide more opportunities
and clarity for tribes interested in participating in the section 401
certification process. Although the CWA clearly allows tribes to obtain
TAS for section 401, current regulations and practice treat TAS for
section 401 as an adjunct to TAS for the CWA section 303(c) program for
water quality standards.
    Section 401 specifies that certification under section 401(a)(1)
shall be made by the state in which the discharge originates or will
originate, or if appropriate, the interstate water pollution control
agency with jurisdiction over the waters of the United States where the
discharge originates or will originate. 33 U.S.C. 1341(a)(1). Likewise,
under section 401(a)(2) the Administrator considers whether a discharge
from a project may affect ``the quality of the waters of any other
state'' in initiating the neighboring jurisdiction process. Id. at
1341(a)(2). Prior Agency guidance and the 2020 Rule preamble provided
that only tribes with TAS for section 401 may act as certifying
authorities under section 401(a)(1) and may act as neighboring
jurisdictions under section 401(a)(2). 85 FR 42270, 42274; 2010
Handbook, at 6 (rescinded). The 1971 Rule did not address tribes with
TAS; the TAS provisions in the CWA were not introduced until the 1987
CWA Amendments.
    Under section 518 of the CWA, EPA may treat federally-recognized
Indian tribes in a similar manner as a state for purposes of
administering most CWA programs over Federal Indian reservations. 33
U.S.C. 1377. Under section 518 and EPA's implementing regulations, an
Indian tribe is eligible for TAS to administer CWA regulatory programs,
including section 401, if it can demonstrate that (1) it is federally-
recognized and exercises governmental authority over a Federal Indian
reservation; \65\ (2) it has a governing body carrying out substantial
governmental duties and power; (3) it has the appropriate authority to
perform the functions to administer the program; and (4) it is
reasonably expected to be capable of carrying out the functions of the
program it applied to administer. See 33 U.S.C. 1377(e), (h); see also,
e.g., 40 CFR 131.8.
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    \65\ ``Federal Indian reservation'' means all land within the
limits of any Indian reservation under the jurisdiction of the
United States Government, notwithstanding the issuance of any
patent, and including rights-of-way running through the reservation.
33 U.S.C. 1377(h)(1).
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    While certain CWA programs have TAS implementing regulations,\66\
there are currently no such regulations tailored solely for section
401. In the absence of TAS provisions tailored specifically for section
401, tribes have received TAS for section 401 when eligible for TAS to
administer the section 303(c) program for water quality standards. 40
CFR 131.4(c) (``Where EPA determines that a Tribe is eligible to the
same extent as a State for purposes of water quality standards, the
Tribe likewise is eligible to the same extent as a State for purposes
of certifications conducted under Clean Water Act section 401.''). To
date, 78 federally-recognized tribes (out of 574) have received TAS for
section 401 concurrently with obtaining TAS for section 303(c).\67\
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    \66\ For example, there are TAS regulatory provisions for the
CWA section 303(c) water quality standards (WQS) program, located at
40 CFR 131.8, and for the CWA section 303(d) impaired water listing
and total maximum daily load program, located at 40 CFR 130.16.
    \67\ See https://www.epa.gov/tribal/tribes-approved-treatment-state-tas.
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    Upon receiving TAS for section 401, tribes have two roles. First,
tribes that receive section 401 TAS are responsible for acting as a
certifying authority for projects that may result in a discharge into
waters of the United States on their Indian reservations. As certifying
authorities, tribes with TAS may grant, grant with conditions, deny, or
waive certification based on whether a federally licensed or permitted
project will comply with sections 301, 302, 303, 306, and 307 of the
CWA and any other appropriate requirements of tribal law. See 33 U.S.C.
1341(a)(1) and (d). Second, tribes that receive section 401 TAS are
accorded the status of ``neighboring jurisdiction'' for purposes of
section 401(a)(2). If EPA makes a ``may affect'' determination with
respect to that neighboring jurisdiction, the neighboring jurisdiction,
including tribes with TAS for section 401, may object to the Federal
license or permit if they determine that the discharge ``will violate''
their water quality requirements and request a public hearing from the
Federal licensing or permitting agency. 33 U.S.C. 1341(a)(2).
    EPA is proposing a section 401-specific set of requirements and
procedures for tribes seeking TAS for purposes of making sections
401(a)(1) and 401(d) certification decisions and for exercising their
statutory rights as a ``neighboring jurisdiction'' under section
401(a)(2). These proposed procedures do not eliminate or modify the
section 401 procedures already found in part 131. Instead, they provide
an alternate path for tribes wishing to obtain TAS status only for
section 401 and not also for section 303(c).
1. Obtaining TAS for Section 401
    Proposed Sec.  121.11 includes the criteria an applicant tribe
would be required to meet to be treated in a similar manner as states,
the information the tribe would be required to provide in its
application to EPA, and the procedure EPA would use to review the
tribal application. This section is intended to ensure that tribes
treated in a similar manner as states for the purposes of the section
401 water quality certification program are qualified, consistent with
CWA requirements, to implement a water quality certification program.
The procedures are meant to provide more opportunities for tribes to
engage fully in the program and are not intended to act as a barrier to
tribal assumption of the section 401 program. The proposed procedures
are modeled after the TAS regulatory provisions for the CWA section
303(c) WQS program, located at 40 CFR 131.8, and the TAS provisions

for the CWA section 303(d) impaired water listing and total maximum
daily load program, located at 40 CFR 130.16. The WQS TAS regulations,
developed in the early 1990s, have acted as a model for other programs
including the section 303(d) regulations. See 81 FR 65905.
Additionally, as discussed above, EPA's TAS regulations allow tribes to
simultaneously obtain TAS for sections 303(c) and 401 and have been
used by 78 tribes to date. As a result, the Agency thinks the part 131
and part 130 TAS regulations provide an appropriate model for this
proposal.
    Consistent with the requirements provided in CWA section 518, EPA
proposes that four criteria must be met for tribes to obtain TAS for
section 401. First, the tribe should be federally recognized by the
U.S. Department of the Interior and meet the definitions in proposed
Sec.  121.1(f) and (g). Second, the tribe should have a governing body
that carries out ``substantial governmental duties and powers'' over a
defined area. Third, the tribe should have appropriate authority to
regulate and manage water resources within the borders of the tribe's
reservation. Lastly, the tribe should be reasonably expected, in the
Regional Administrator's judgment, to be capable of administering a
section 401 water quality certification program.
    The tribe may satisfy the first criterion by stating that it is
included on the list of federally recognized tribes that is published
periodically by the U.S. Department of the Interior. Alternatively, the
tribe may submit other appropriate documentation (e.g., if the tribe is
not yet included on the U.S. Department of the Interior list but is
federally recognized).
    To meet the second criterion, the tribe would show that it conducts
``substantial governmental duties and powers,'' which the Agency views
as performing governmental functions to promote the health, safety, and
welfare of the affected population within a defined geographical area.
See 54 FR 39101; 81 FR 65906. This requires a descriptive statement
that should (1) describe the form of tribal government, (2) describe
the types of essential governmental functions currently performed by
the tribal governing body, including but not limited to, the exercise
of the power of eminent domain, taxation, and police power, and (3)
identify the sources of authorities to carry out these functions.
    To establish the third criterion that the tribe has the authority
to manage the water resources within the borders of the tribe's
reservation, the tribe would submit a descriptive statement comprised
of two components. First, the statement should include a map or legal
description of the area over which the tribe has authority to regulate
surface water quality. Second, there should be a statement signed by
the tribe's legal counsel or equivalent explaining the legal basis for
the tribe's regulatory authority. EPA notes that section 518 of the CWA
includes a delegation of authority from Congress to eligible Indian
tribes to regulate the quality of waters of their reservations under
the CWA. See 81 FR 30183 (May 16, 2016). Absent rare circumstances that
may affect a tribe's ability to effectuate the delegation of authority,
tribes may rely on the congressional delegation of authority included
in section 518 of the statute as the source of authority to administer
a section 401 water quality certification program. This is identical to
the manner in which tribes have been demonstrating authority for
eligibility to administer 401 certifications under existing TAS
regulations, the only change being that under the new proposed
regulations, tribes would be able to seek TAS eligibility for section
401 only. Similarly, as with tribes already administering section 401
under prior TAS approvals, the authority to issue certifications
exercised by a tribe authorized under the new proposed regulation will,
by virtue of the congressional delegation, apply throughout the
reservation area covered by the TAS approval, irrespective of land
ownership or the tribal membership status of the Federal license
applicant. See, e.g., 81 FR 30190. Therefore, grants or waivers of
certification by an authorized tribe, as well as any conditions
included in a certification or denials of certification by an
authorized tribe, would apply to any application for a Federal license
throughout the relevant reservation without any separate need to
demonstrate inherent tribal jurisdiction.
    A tribe may satisfy the fourth criterion regarding its capability
by either (1) providing a description of the tribe's technical and
management skills to administer a water quality certification program
or (2) providing a plan that proposes how the tribe will acquire such
skills. Additionally, when considering tribal capability, EPA would
also consider whether the tribe can demonstrate the existence of
institutions that exercise executive, legislative, and judicial
functions, and whether the tribe has a history of successful managerial
performance of public health or environmental programs.
    To provide direction on how a tribe may meet the criteria described
above, EPA is also proposing to describe the contents of an application
for TAS for section 401. See proposed 40 CFR 121.11(b). These contents
include a statement that the tribe is recognized by the Secretary of
the Interior, a descriptive statement that demonstrates the tribal
government carries out substantial duties and powers, a descriptive
statement of the tribe's authority to regulate water quality, and a
narrative statement that describes the tribe's capability to administer
a section 401 water quality certification program. Consistent with
existing TAS regulations for other programs, the proposed rulemaking
also provides that tribal applicants include additional documentation
that may be required by EPA to support the tribal application. Each TAS
application will present its own set of legal and factual
circumstances, and EPA anticipates that in some cases it may be
necessary to request additional information when reviewing a tribe's
application. Such requests would, for instance, generally relate to
ensuring that the application contains sufficient complete information
to address the required statutory and regulatory TAS criteria. This
could include, for instance, information relating to a unique issue
pertaining to the applicant tribe or its reservation or an issue
identified during the comment process described below. Consistent with
longstanding practice, the Agency would work with tribes in an
appropriately streamlined manner to ensure that their TAS applications
contain all necessary information to address applicable statutory and
regulatory criteria. If a tribe has previously qualified for TAS under
another EPA program, the tribe is only required to submit information
that was not previously submitted as part of a prior TAS application.
    EPA is also proposing to describe EPA's procedures to review and
process an application for section 401 TAS. See proposed 40 CFR
121.11(c). Under this proposal, once EPA receives a complete tribal
application, it will promptly notify the tribe of receipt and process
the application in a timely manner. Within 30 days after receipt of the
tribe's complete application for section 401 TAS, EPA shall provide
notice to appropriate governmental entities \68\ of the application,
including information on the substance of and basis for the tribe's
assertion of authority to regulate reservation water quality.
Appropriate

governmental entities will be given 30 days to provide comment on the
tribe's assertion of authority. Consistent with prior practice
regarding such notice in connection with TAS applications for other
programs, EPA also intends to provide sufficiently broad notice (e.g.,
through local newspapers, electronic media, or other appropriate media)
to inform other potentially interested entities of the applicant
tribe's complete application and of the opportunity to provide relevant
information regarding the tribe's assertion of authority. If the
tribe's assertion of authority is challenged, EPA will determine
whether the tribe has adequately demonstrated authority to regulate
water quality on the reservation after considering all relevant
comments received.
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    \68\ EPA defines the term ``appropriate governmental entities''
as ``States, tribes, and other Federal entities located contiguous
to the reservation of the tribe which is applying for treatment as a
State.'' 56 FR 64876, 64884 (December 12, 1991).
---------------------------------------------------------------------------

    However, if a tribe previously qualified for TAS for another
program that also required a tribe to demonstrate authority to regulate
reservation water quality (i.e., CWA section 303(c) program, CWA
section 303(d) program, CWA section 402 program, or CWA section 404
program) and EPA provided a notice and comment opportunity, the Agency
would not require notice on the tribe's assertion of authority to
appropriate governmental entities in the section 401 TAS application
unless there were different jurisdictional issues or significant new
factual or legal information relevant to jurisdiction. EPA thinks this
approach could help streamline the process and avoid a potentially
duplicative notice process. The Agency is proposing to apply this
approach prospectively only, i.e., where the tribe obtains TAS for the
CWA section 303(c), 402, or 404 programs after the effective date of
this rule. In other words, if a tribe first gains TAS for another CWA
regulatory program after this rule is finalized, and subsequently seeks
TAS under this rule, additional notice and comment would not be
required as part of the section 401 TAS application unless different
jurisdictional issues or significant new factual or legal information
relevant to jurisdiction are presented in the 401 application. If the
Regional Administrator determines that a tribe's application meets the
requirements proposed in Sec.  121.11(b), the Regional Administrator
would promptly notify the tribe in writing. A decision by the Regional
Administrator that a tribe does not meet the requirements proposed in
Sec.  121.11(b) would not preclude the tribe from resubmitting the
application at a future date. If the Regional Administrator determines
that a tribal application is deficient or incomplete, EPA will identify
such deficiencies and gaps so the tribe can make changes as appropriate
and necessary.
    Promulgating a regulation expressly providing a process and
requirements for section 401 TAS in the absence of 303(c) TAS is
consistent with section 518 and would provide clarity and increased
opportunities for interested tribes to participate in section 401.
Additionally, developing regulations on section 401 TAS as a standalone
process for tribes seeking this authority who are not concurrently
applying for section 303(c) TAS may encourage more tribes to seek TAS
for section 401. Decoupling section 401 TAS from section 303(c)
recognizes that section 401 and section 303 administration are related,
but distinct functions and is responsive to tribal stakeholders who
have expressed an interest in participating in the section 401
certification process. EPA is requesting comment on this more targeted
proposed approach to obtaining TAS for section 401.
2. Obtaining TAS for Section 401(a)(2)
    If a tribe receives TAS for section 401, it is treated in a manner
similar to a state and considered an ``authorized tribe'' for purposes
of exercising its statutory authority under section 401. Generally, the
Federal statutory and the proposed regulatory requirements for state
water quality certification would apply to authorized tribes, including
acting as a certifying authority and neighboring jurisdiction, as
appropriate. However, EPA is also proposing regulatory language that
would allow a tribe to apply for TAS for only the limited purpose of
being a neighboring jurisdiction under section 401(a)(2). As noted
above, prior Agency guidance and the 2020 Rule preamble expressed the
interpretation that only tribes with TAS status may participate as a
neighboring jurisdiction under section 401.\69\ This is because, unlike
section 401(a)(1), which specifically requires EPA to act as a
certifying authority on behalf of jurisdictions without the authority
to certify,\70\ section 401(a)(2) only provides ``states'' with an
opportunity to participate as a neighboring jurisdiction.
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    \69\ See 2010 Handbook (rescinded); 85 FR 42274.
    \70\ 33. U.S.C. 1341(a)(1) (``In any case where a State or
interstate agency has no authority to give such a certification,
such certification shall be from the Administrator.'')
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    Although 78 tribes have received TAS for section 401 to date, EPA
recognizes that some tribes may not desire or have the resources to
apply for the section 401 certification program. However, pre-proposal
input suggests that tribes may wish to be notified about, and have the
ability to object to and provide information regarding, potential
Federal licenses and permits that may impact their waters. Several
tribal stakeholders have expressed concern that tribes without TAS are
not able to participate in the section 401(a)(2) neighboring
jurisdiction process. In light of this input, EPA is proposing to
provide tribes with an opportunity to seek TAS authorization for the
limited purpose of being a neighboring jurisdiction pursuant to section
401(a)(2).
    This approach has been taken in other EPA programs. For example,
the Agency's regulations under the Clean Air Act provide opportunities
for interested tribes to seek TAS authorization for reasonably
severable elements of programs under that statute, so long as such
elements are not integrally related to program elements that are not
included and are consistent with applicable statutory and regulatory
requirements. See 40 CFR 49.7(c). Under that authority, EPA has
approved tribes for TAS authorization for the procedural comment
opportunity provided in connection with issuance of certain permits by
upwind permitting authorities, without requiring those tribes to seek
authorization for the entire relevant program. See 42 U.S.C.
7661d(a)(2).
    EPA thinks that the neighboring jurisdiction role under section
401(a)(2) is similar. See discussion in section V.K in this
preamble.\71\ EPA thinks it is appropriate to allow tribes wishing to
protect their water quality interests under section 401(a)(2) to apply
for and obtain TAS status to do so independently of whether they also
desire to take on the separate responsibility to act pursuant to
sections 401(a)(1) and 401(d). Nothing in the language of section 401
precludes this approach.
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    \71\ Under section 401(a)(2), once EPA determines that a
federally licensed or permitted discharge may affect the water
quality of a neighboring jurisdiction, EPA must notify that
neighboring jurisdiction. 33 U.S.C. 1341(a)(2). In turn, the
neighboring jurisdiction has 60 days to evaluate the notice and
determine whether the discharge will violate its water quality
requirements, object to the issuance of the license or permit, and
request a public hearing from the Federal licensing or permitting
agency. Id. Ultimately, the Federal licensing or permitting agency
is responsible for evaluating the neighboring jurisdiction's input,
in addition to EPA's input and other input received at the public
hearing, to determine whether it needs to condition the license or
permit to assure that it will comply with the neighboring
jurisdiction's water quality requirements. If conditions cannot
assure such compliance, then the Federal agency may not issue the
license or permit. Id.
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    Additionally, EPA thinks that the neighboring jurisdiction role
under section 401(a)(2) is reasonably severable from the statute's
other water quality certification activities. Section 401 provides
separate and distinct roles for

certifying authorities and neighboring jurisdictions. As noted above,
the statutory language expressly provides a role for states and EPA to
act as certifying authorities in section 401(a)(1), but only provides a
role for states to act as a neighboring jurisdiction in section
401(a)(2). While both sections allow states and tribes with TAS status
to inform the Federal licensing or permitting process, there are
significant differences. For example, if a certifying authority places
conditions on a Federal license or permit through a water quality
certification, the Federal agency must incorporate those conditions
into the license or permit. 33 U.S.C. 1341(d). However, if a
neighboring jurisdiction objects to a Federal license or permit and
recommends conditions it would like to see in the Federal license or
permit, the Federal agency must consider that objection and recommended
conditions as part of its broader analysis, but it is not required to
incorporate them verbatim as required by section 401(d). Rather, the
Federal agency is only required to impose a neighboring jurisdiction's
recommended conditions to the extent they are necessary to assure
compliance with the neighboring jurisdiction's applicable water quality
requirements. Id. at 1341(a)(2).
    EPA thinks that authorizing tribes to obtain TAS solely for section
401(a)(2) would allow tribes not interested in issuing their own
certifications to have an opportunity to participate as a neighboring
jurisdiction where discharges into another jurisdiction's waters may
affect their own water quality. The proposed approach is responsive to
stakeholder feedback and promotes tribal agency by providing an
opportunity for tribes to protect their water quality by participating
in the section 401 certification process without requiring the tribe to
assume all of the authorities and responsibilities of section 401. EPA
is soliciting comment on the proposed provisions, as well as comment on
any alternative approaches.
    In section V.E in this preamble, EPA discussed the term ``any other
appropriate requirement of State law.'' That discussion applies equally
to tribal law for those tribes that obtain TAS status, either for
section 401 in its entirely or only for section 401(a)(2). There is no
reason to treat a tribe's laws differently than a state's laws with
respect to their ability to form the legal basis for a certification
decision or any conditions the tribe might find necessary to include in
a certification. Once it attains TAS status, a tribe stands on equal
footing with a state regarding its ability to carry out its functions
under sections 401(a)(1), 401(d) and 401(a)(2). Accordingly, a tribe
with TAS status under section 401(a)(2) may rely upon any of its water
quality-related laws in deciding whether to issue a certification (or
conditions) under sections 401(a)(1) and (d) or object to a Federal
license or permit under section 401(a)(2).

M. Implementation Considerations

    EPA recognizes that both certifying authorities and Federal
agencies have existing regulations addressing implementation of section
401. For example, as discussed in section V.C in this preamble, the
Agency is aware that some certifying authorities have regulations
defining the contents of a request for certification. As a result of
this rulemaking effort, certifying authorities may choose to modify
their existing regulations if certain proposed provisions are finalized
(e.g., they may choose to define the contents of a certification
request in regulation instead of relying on EPA's proposed definition).
Similarly, EPA is aware that the Corps, FERC, and EPA's NPDES program
have separate section 401 implementation regulations addressing their
respective licensing or permitting programs.\72\ EPA expects that
Federal agencies with existing section 401 implementing regulations
will evaluate their regulations and other guidance documents to ensure
consistency with this regulation. EPA is requesting comment on the
types of implementation materials that EPA should develop to assist
Federal agencies and certifying authorities to implement any proposed
or alternative provisions discussed throughout this preamble.
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    \72\ See e.g., 33 CFR 325.2 (water quality certification on
section 404 permits); 18 CFR 4.34 (water quality certification on
FERC hydropower licenses); 40 CFR 124.53 through 124.55 (water
quality certification on EPA-issued NPDES permits).
---------------------------------------------------------------------------

VI. Economic Analysis

    Pursuant to Executive Orders 12866 (Regulatory Planning and Review)
and 13563 (Improving Regulation and Regulatory Review), EPA has
prepared an economic analysis (EA) to inform the public of potential
effects associated with this proposed rulemaking. This analysis is not
required by the CWA.
    To support the proposed rulemaking, EPA prepared an EA and other
related rule analyses to assess potential impacts of the rule. These
analyses seek to evaluate the benefits and costs of the proposed
rulemaking and the effects of the rule on vulnerable groups and small
entities. The EA presents an overview of practice under the 1971 Rule
and 2020 Rule (baselines),\73\ a description of the proposed changes,
and an assessment of the potential impacts of the proposed rulemaking
on project proponents, certifying authorities, and Federal agencies
when transitioning from the baselines of regulatory practice to the new
proposed requirements. Appendix A in the EA provides a plain-language
comparison of the 1971 Rule, 2020 Rule, and proposed rulemaking
provisions in a table format. Within the EA, the Agency included
discussion of the environmental benefits and process costs with
examples relative to the proposed rulemaking provisions. EPA also
assessed environmental justice impacts of the proposed rulemaking on
vulnerable communities and impacts on small entities. The Agency also
prepared an Information Collection Request Supporting Statement which
describes the overall burden of the section 401 regulations. See
section VII.B in this preamble.
---------------------------------------------------------------------------

    \73\ On October 21, 2021, the U.S. District Court for the
Northern District of California issued an order remanding and
vacating EPA's 2020 Rule. The vacatur was nationwide in scope, and
the order required a temporary return to the 1971 Rule until EPA
finalized a new certification rule. However, the U.S. Supreme Court
issued a stay of the vacatur on April 6, 2022, which put the 2020
Rule back in effect pending the Ninth Circuit and potential Supreme
Court appeal. Due to the stay of the vacatur pending appeal, EPA
considers two baselines in the economic analysis.
---------------------------------------------------------------------------

    Section 401 certification decisions have varying effects on
certifying authorities and project proponents. However, the Agency has
limited data regarding the number of certification requests submitted
and the certification decisions taken on certification requests (i.e.,
whether the certification requests were granted, granted with
conditions, denied, or waived). The Agency does not maintain a national
database of certifying authority decisions and therefore did not have
data available to perform a fully quantitative economic analysis. Given
the absence of data related to section 401 regulations, EPA performed a
qualitative analysis of the section 401 certification process under the
1971 Rule, the 2020 Rule, and under the proposed rulemaking.The Agency
reviewed information from several sources to characterize section 401
baseline conditions and understand potential impacts of the proposed
regulatory changes. Specifically, the Agency investigated state and
territory websites and assembled available information concerning
section 401 fees and certification decisions. EPA also conducted a
focused review of pre-

proposal input letters \74\ to extract any information concerning
economic impacts of section 401 and key issues identified during
implementation of section 401. Within the EA, EPA describes the various
Federal licenses and permits that require section 401 certification and
the potential actions that certifying authorities may take pursuant to
their section 401 authority. Additionally, the Agency summarized the
annual number of licenses and permits that require section 401
certification under different Federal authorities to determine the
extent of licensing and permitting actions within the section 401
universe. These types of information are used in the EA to describe
implementation practices and trends under the baselines and serve as
the basis for assessing impacts of the proposed rulemaking.
---------------------------------------------------------------------------

    \74\ Docket ID No. EPA-HQ-OW-2021-0302.
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    In determining the potential effects of the proposed rulemaking,
EPA described the impacts of rule revisions in several key areas
including pre-filing meetings, contents of certification requests, time
period for review, neighboring jurisdictions, and tribal provisions for
implementing section 401. The 1971 Rule baseline did not include a pre-
filing meeting request requirement. However, because pre-filing
meetings allow for early discussion of project details, such meetings
would ultimately be expected to reduce burden elsewhere in the section
401 certification process. The 2020 Rule does not provide certifying
authorities with the option to waive or shorten the pre-filing meeting
request requirement. The Agency anticipates that the proposed pre-
filing meeting request provision would provide flexibility for
certifying authorities to decide whether to require pre-filing meeting
requests and whether to hold pre-filing meetings based on project
complexity and other factors. Relative to both the 1971 Rule and 2020
Rule baselines, the Agency expects that the proposed requirement to
include a copy of the draft license or permit with all requests for
certifications would decrease the number of redundant and unnecessary
certification conditions and increase the amount of relevant project-
specific information available to the certifying authority promoting a
more efficient certification review process. Additionally, relative to
the two baselines, the proposed changes concerning the reasonable time
for certification review would balance equities between certifying
authorities and Federal agencies and provide flexibility for certifying
authorities and Federal agencies to determine the optimal length for
the reasonable period of time or any extensions, provided they do not
exceed one year from receipt. For example, the proposed rulemaking
would allow certifying authorities to ensure that the reasonable period
of time is informed by the size and complexity of the project, the
certifying authority's available resources (e.g., staff size), and
public notice and comment requirements. Allowing the certifying
authority and Federal agency to negotiate a reasonable period of time
at the beginning of the certification process (subject to a 60-day
default) is also likely to improve the efficiency of the review
process. The proposed rule also provides greater clarity regarding the
process to protect neighboring jurisdiction waters (e.g., by specifying
the contents of a notification from a Federal agency to EPA), which is
also expected to increase its efficiency. This clarity and efficiency
is expected when using the 1971 Rule as the baseline, as well as for
the 2020 Rule baseline (though potentially to a lesser extent due to
some updated provisions in the 2020 Rule). Neither the 1971 Rule nor
the 2020 Rule included TAS provisions. Proposed revisions permitting
tribes to obtain TAS solely for section 401 and, if desired, to only
obtain TAS for the purpose of participating as neighboring
jurisdictions under section 401(a)(2), would provide tribes with a
greater ability to protect their water resources from the adverse
effects of pollution from federally licensed or permitted projects.
    In some areas, the proposed rulemaking would revive practices that
had been widely implemented for 50 years before the 2020 Rule.
Specifically, the proposal would return the scope of a certifying
authority's section 401 review as encompassing the ``activity as a
whole,'' which is consistent with longstanding Agency and certifying
authority practice and allows certifying authorities to protect their
waters from the widest range of impacts. The Agency is proposing to put
back a certification modification process, allowing certifying
authorities and Federal agencies the flexibility to mutually agree on
circumstances warranting modification. Provided that certification
modification efforts are appropriately coordinated, the modification
process under the proposed rulemaking would allow certifying
authorities to adapt to changes in environmental and regulatory
conditions, and provide needed flexibility to accommodate changed
circumstances after issuance of a section 401 certification.
    EPA anticipates that the proposed rulemaking will enhance the
ability of states and tribes to protect their water resources by
clarifying key components of the water quality certification process
and improving coordination between Federal agencies, certifying
authorities, and project proponents. The Agency is seeking comment on
the EA and information collection request, including the information
used to inform the Agency's understanding of baseline conditions.
Additionally, EPA is requesting comment on any additional data sources
that can be used to characterize the baseline for section 401
implementation and serve as the basis for understanding the potential
impacts of any of these proposed regulatory changes.

VII. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive orders
can be found at http://www.epa.gov/laws-regulations/laws-and-executive-orders.

A. Executive Order 12866: Regulatory Planning and Review; Executive
Order 13563: Improving Regulation and Regulatory Review

    This action is a significant regulatory action that was submitted
to the Office of Management and Budget (OMB) for review. Any changes
made in response to OMB recommendations have been documented in the
docket for this action. The Agency prepared an economic analysis of the
potential benefits and costs associated with this action. This
analysis, the Economic Analysis for the Proposed Rule, is available in
the docket for this action and is briefly summarized in section VI in
this preamble.

B. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rulemaking
have been submitted for approval to OMB under the PRA. The Information
Collection Request (ICR) document that EPA prepared has been assigned
EPA ICR number 2603.06. A copy of the ICR is included in the docket for
this rule, and it is briefly summarized here.
    The information collected under section 401 is used by certifying
authorities and EPA to evaluate potential water quality impacts from
federally licensed or permitted projects. When states or tribes with
TAS act as the certifying authority, the primary collection of this
information is performed by the Federal agencies issuing the licenses
or permits or the states and tribes acting as certifying authorities.
When EPA acts as the

certifying authority or evaluates potential neighboring jurisdiction
impacts, the information is collected by EPA. Information collected
directly by EPA under section 401 in support of the section 402 NPDES
program is already captured under existing ICR No. 0229.255 (OMB
Control No. 2040-0004). The information collected under section 518(e)
is used by EPA to determine whether a tribe is eligible for TAS for
section 401 or section 401(a)(2). Information collected directly by EPA
under section 518(e) in support of the process for tribes to obtain TAS
for CWA section 303(c) and section 401 simultaneously is already
captured under existing ICR No. 0988.14 (OMB Control No. 2040-0049).
    The proposed revisions clarify the nature of the information
project proponents must include in a request for section 401
certification. They also contain a pre-filing meeting request
requirement for project proponents which may be waived or shortened by
a certifying authority. The proposed revisions also provide tribes with
the ability to obtain TAS solely for either section 401 or section
401(a)(2). Total annual burden for respondents (project proponents and
certifying authorities and tribes applying for TAS) are anticipated to
be 861,274 hours with the associated annual labor costs being
approximately $47 million. EPA expects that these proposed revisions
will provide additional transparency in the certification modification
and section 401(a)(2) contexts. EPA expects these proposed revisions to
provide greater clarity regarding section 401 requirements, to reduce
the overall preparation time spent by a project proponent on
certification requests, and to reduce the review time for certifying
authorities. EPA solicits comment on whether there are ways it can
increase clarity, reduce the information collection burden, or improve
the quality or utility of the information collected, or the information
collection process itself, in furtherance of goals and requirements of
section 401.
    In the interest of transparency, EPA is providing the following
summary of the relevant portions of the burden assessment associated
with EPA's existing certification regulations. EPA does not expect any
measurable change in information collection burden associated with the
proposed rulemaking changes.
    Respondents/affected entities: Project proponents, state and tribal
reviewers (certifying authorities), tribes applying for TAS.
    Respondent's obligation to respond: Required to obtain section 401
water quality certification; voluntary for tribes to apply for TAS.
    Estimated number of respondents: 154,006 responses from 72,125
respondents annually.
    Frequency of response: Variable (one per Federal license or permit
application, or only once) depending on type of information collected.
    Total estimated burden: 861,274 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $47 million (per year), includes $0
annualized capital or operation & maintenance costs.
    An agency may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
    Submit your comments on the Agency's need for this information, the
accuracy of the provided burden estimates and any suggested methods for
minimizing respondent burden to the EPA using the docket identified at
the beginning of this rule. The EPA will respond to any ICR-related
comments in the final rule. You may also send your ICR-related comments
to OMB's Office of Information and Regulatory Affairs using the
interface at www.reginfo.gov/public/do/PRAMain. Find this particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function. OMB must receive
comments no later than [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION
IN THE FEDERAL REGISTER].

C. Regulatory Flexibility Act (RFA)

    I certify that this proposed rulemaking will not have a significant
economic impact on a substantial number of small entities under the
RFA. The small entities subject to the requirements of this action are
small businesses applying for Federal licenses or permits subject to
section 401 certification, which includes construction, manufacturing,
mining, and utility businesses. Section 401 requires project proponents
to obtain a water quality certification from the certifying authority
where the potential discharge originates or will originate before it
may obtain such Federal license or permit. Small entities are not
subject to economic impacts from the proposed rule's requirements on
certifying authorities, Federal agencies, or neighboring jurisdictions
because small entities do not act in those roles under section 401.
    EPA is not able to quantify the impacts of the proposed rulemaking
on small entities due to several data limitations and uncertainties,
which are described within the Economic Analysis for the Proposed Rule,
available in the docket for this rulemaking. However, EPA is including
a qualitative assessment of the potential impacts of the proposed
rulemaking on project proponents that are small entities in the
Economic Analysis. Based on the qualitative analysis, the Agency has
determined that some small entities may experience some impact from the
proposed rulemaking but that the impact would not be significant. See
the Economic Analysis for details of the qualitative analysis.

D. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or
more as described in UMRA, 2 U.S.C. 1531-1538, and does not
significantly or uniquely affect small governments. While this action
creates enforceable duties for the private sector, the cost does not
exceed $100 million or more. This action does not create enforceable
duties for state and tribal governments. See the Economic Analysis in
the docket for further discussion on UMRA.

E. Executive Order 13132: Federalism

    Under the technical requirements of Executive Order 13132 (64 FR
43255, August 10, 1999), EPA has determined that this proposed
rulemaking does not have federalism implications but expects that this
proposed rulemaking may be of significant interest to state and local
governments.
    EPA is proposing updates to its CWA section 401 regulation to
provide greater clarity and flexibility for certifying authorities in
relation to acting on pre-filing meeting requests, contents of requests
for certification, and acting within the reasonable period of time. EPA
is also proposing to clarify the scope of Federal agency review of
certification decisions; however, nothing in EPA's proposed rulemaking
would preempt state law. These proposed regulatory clarifications and
revisions will reinforce the authority granted to states by CWA section
401 to protect their water quality, which had been exercised by the
states prior to implementation of the 2020 Rule.
    Prior to proposing this rule, EPA solicited recommendations and
conducted pre-proposal outreach, such as virtual listening sessions,
where many state and local governments, intergovernmental associations,
and other associations representing state and

local governments participated. Specifically, EPA hosted webinar-based
listening sessions for pre-proposal input on June 14, June 15, June 23,
and June 24, 2021, with over 400 participants from most states and a
few territories. Furthermore, EPA accommodated requests for listening
sessions with representatives from the Association of Clean Water
Administrators, the Association of State Wetland Managers, the
Environmental Council of the States, Western States Water Council,
Indiana Department of Environmental Management, Maryland Department of
the Environment, New Mexico Environmental Department, New York
Department of Environmental Conservation, Oregon Department of
Environmental Quality, Virginia Department of Environmental Quality,
and Washington Department of Ecology. All pre-proposal input letters
and summaries of the webinar-based listening sessions are available in
Docket ID No. EPA-HQ-OW-2021-0302. These webinars, meetings, and input
letters provided a wide and diverse range of interests, positions, and
recommendations to the Agency. The pre-proposal feedback from
certifying authorities covered eight of the issues the EPA identified
in the Federal Register document. See 86 FR 29543-44. Generally,
participants advocated for states to have increased authority and
flexibility to determine the needs and requirements for certification
requests. In addition, states asked EPA to clarify definitions and
conveyed support for interim guidance and immediate relief as they
continued to implement the 2020 Rule.
    After publishing this proposed rulemaking, EPA will conduct
additional outreach and engagement with state and local government
officials, or their representative national organizations, prior to
finalizing a rule. All comment letters and recommendations received by
EPA during the comment period from state and local governments will be
included in the proposed rulemaking docket (Docket ID No. EPA-HQ-OW-
2022-0128).

F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    This action may have implications for tribal governments. However,
it will neither impose substantial direct compliance costs on federally
recognized tribal governments, nor preempt tribal law. This action may
change how tribes with TAS for section 401 administer the section 401
program, but it will not have an administrative impact on tribes on
whose behalf EPA issues certifications. As discussed in the preamble,
EPA expects this proposal to expand and further clarify the
opportunities for tribal participation in the CWA section 401 water
quality certification process.
    EPA consulted with tribal officials under the EPA Policy on
Consultation and Coordination With Indian Tribes early in the process
of developing this proposed rulemaking to allow them to have meaningful
and timely input into its development.
    The Agency initiated a tribal consultation and coordination process
before proposing this rule by sending a ``Notification of Consultation
and Coordination'' letter, dated June 7, 2021, to all 574 of the tribes
federally recognized at that time (see Docket ID No. EPA-HQ-OW-2021-
0302). The letter invited tribal leaders and designated consultation
representatives to participate in the tribal consultation and
coordination process for this rulemaking. In addition to two national
tribal webinars held on June 29 and July 7, 2021, the Agency convened
other listening sessions, that tribal members and representatives
attended, for certifying authorities and the public. EPA continued
outreach and engagement with tribes and sought other opportunities to
provide information and hear feedback from tribes at national and
regional tribal meetings during and after the end of the consultation
period. The Agency did not receive any consultation requests. All
tribal and tribal organization letters and webinar feedback are
included in the pre-proposal docket (Docket ID No. EPA-HQ-OW-2021-
0302), and a summary of the tribal consultation and coordination effort
may be found in the docket for this action (Docket ID No. EPA-HQ-OW-
2022-0128).
    Many tribal feedback letters or meeting participants expressed an
interest in receiving additional information and in continued
engagement with the Agency during development of the proposed
rulemaking; however, most of these tribal representatives highlighted
other ongoing rulemakings that also required their engagement. Common
themes expressed in the tribal feedback letters included the need for
applicants to submit complete certification requests, expanding the
scope of certifications, cooperative federalism, concerns about a
Federal agency's unilateral ability to determine the reasonable period
of time, and concerns about Federal agencies waiving certifying
authority decisions. Feedback was relatively consistent across these
stakeholders regardless of whether the feedback was from tribes having
TAS or not.

G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks

    EPA interprets Executive Order 13045 as applying only to those
regulatory actions that concern environmental health or safety risks
that EPA has reason to believe may disproportionately affect children,
per the definition of ``covered regulatory action'' in section 2-202 of
the Executive order. This action is not subject to Executive Order
13045 because it does not concern an environmental health risk or
safety risk.

H. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use

    This action is not a ``significant energy action'' because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.

I. National Technology Transfer and Advancement Act

    This proposed rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations

    EPA believes that this action does not have disproportionately high
and adverse human health or environmental effects on minority
populations, low-income populations and/or indigenous peoples, as
specified in Executive Order 12898 (59 FR 7629, February 16, 1994). The
documentation for this decision is contained in the Economic Analysis
for the Proposed Rule, which can be found in the docket for this action
and is briefly summarized in section VI in this preamble.
    The Agency recognizes that the burdens of environmental pollution
disproportionately fall on population groups of concern (e.g.,
minority, low-income, and indigenous populations as specified in
Executive Order 12898), and EPA is responsive to environmental justice
concerns through multiple provisions in this proposal. The proposed
pre-filing meeting request requirement provides a mechanism to ensure
certifying authorities can request and receive information needed to
protect their water resources and population groups of concern during
early engagement. Additionally, the proposal to include a copy of the
draft permit or license in a ``request for certification'' empowers
certifying

authorities with more details upfront about the project to make a well-
informed decision that may affect population groups of concern,
promoting environmental justice and transparency in the certification
process. This also enables certifying authorities to share a greater
level of detail with the public (including population groups of concern
that may be impacted by a proposed project), so that participants in
the public notice and comment process can provide better informed
input.\75\ Under the proposed collaborative approach for determining
the reasonable period of time, certifying authorities can take the
needs of population groups of concern into account when determining the
amount of time they need to review and evaluate the potential impacts
of a proposed project on the communities' water resources (e.g., a
certifying authority may suggest a longer reasonable period of time to
facilitate outreach to population groups of concern or to conduct
studies on a proposed project's impact on these communities).
Additionally, the ``activity as a whole'' approach for scope of review
has the potential to benefit population groups of concern by ensuring
that the certifying authority can broadly review the potential water
quality impacts on those communities. The proposed TAS provisions for
section 401 as a whole or for section 401(a)(2) give tribes additional
options to obtain TAS, as well as more opportunities to provide input
and voice any water quality concerns during the certification process.
Lastly, when EPA is acting as the certifying authority, the Agency is
proposing to update the public notice provision to facilitate
participation by the broadest number of potentially interested
stakeholders, including population groups of concern. These proposed
approaches and their responsiveness to environmental justice concerns
is further discussed within the environmental justice section of the
Economic Analysis.
---------------------------------------------------------------------------

    \75\ Under section 401(a)(1), a certifying authority is required
to provide public notice on a request for certification.
---------------------------------------------------------------------------

List of Subjects

40 CFR Part 121

    Environmental protection, Administrative practice and procedure,
Intergovernmental relations, Water pollution control.

40 CFR Part 122

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous substances, Reporting and
recordkeeping requirements, Water pollution control.

40 CFR Part 124

    Environmental protection, Administrative practice and procedure,
Air pollution control, Hazardous waste, Indians-lands, Reporting and
recordkeeping requirements, Water pollution control, Water supply.

Michael S. Regan,
Administrator.

    For the reasons set out in the preamble, EPA proposes to amend 40
CFR parts 121, 122, and 124 as follows:

0
1. Revise part 121 to read as follows:

PART 121--STATE CERTIFICATION OF ACTIVITIES REQUIRING A FEDERAL
LICENSE OR PERMIT

Sec.
Subpart A--General
121.1 Definitions.
121.2 When certification is required.
121.3 Scope of certification.
121.4 Pre-filing meeting requests.
121.5 Request for certification.
121.6 Reasonable period of time.
121.7 Certification decisions.
121.8 Failure or refusal to act.
121.9 Federal agency review.
121.10 Modifications.
121.11 Requirements for Indian Tribes to administer a water quality
certification program.
Subpart B--Neighboring Jurisdictions
121.12 Notification to the Regional Administrator.
121.13 Determination of effects on neighboring jurisdictions.
121.14 Neighboring jurisdiction objection and request for a public
hearing.
121.15 Public hearing and Federal agency evaluation of neighboring
jurisdiction objection.
Subpart C--Certification by the Administrator
121.16 When the Administrator certifies.
121.17 Public notice and hearing.
Subpart D--Review and Advice
121.18 Review and advice.

    Authority:  33 U.S.C. 1251 et seq.

Subpart A--General

Sec.  121.1  Definitions.

    As used in this part, the following terms shall have the meanings
indicated:
    (a) Activity as a whole means any aspect of the project activity
with the potential to affect water quality.
    (b) Administrator means the Administrator, Environmental Protection
Agency (EPA).
    (c) Application means an application for a license or permit
submitted to a Federal agency, or if available, the draft license or
permit.
    (d) Certifying authority means the entity responsible for
certifying compliance with applicable water quality requirements in
accordance with Clean Water Act section 401.
    (e) Federal agency means any agency of the Federal Government to
which application is made for a license or permit that is subject to
Clean Water Act section 401.
    (f) Federal Indian Reservation, Indian reservation, or reservation
means all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and including rights-of-way running through the
reservation.
    (g) Indian Tribe or Tribe means any Indian Tribe, band, group, or
community recognized by the Secretary of the Interior and exercising
governmental authority over a Federal Indian Reservation.
    (h) License or permit means any license or permit issued or granted
by an agency of the Federal Government to conduct any activity which
may result in any discharge into waters of the United States.
    (i) Neighboring jurisdiction means any state, or tribe with
treatment in a similar manner as a state for Clean Water Act section
401 in its entirety or only for Clean Water Act section 401(a)(2),
other than the jurisdiction in which the discharge originates or will
originate.
    (j) Project proponent means the applicant for a license or permit
or the entity seeking certification.
    (k) Receipt means the date that a request for certification, as
defined by the certifying authority, is documented as received by a
certifying authority in accordance with the certifying authority's
applicable submission procedures.
    (l) Regional Administrator means the Regional designee appointed by
the Administrator, Environmental Protection Agency.
    (m) Water quality requirements means any limitation, standard, or
other requirement under sections 301, 302, 303, 306 and 307 of the
Clean Water Act, any Federal and state or tribal laws or regulations
implementing those sections, and any other water quality-related
requirement of state or tribal law.

Sec.  121.2  When certification is required.

    Certification or waiver is required for any license or permit that
authorizes an activity which may result in a discharge from a point
source into a water of the United States.

Sec.  121.3  Scope of certification.

    When a certifying authority reviews a request for certification, it
shall evaluate whether the activity as a whole will comply with all
applicable water quality requirements.

Sec.  121.4  Pre-filing meeting requests.

    The project proponent shall request a pre-filing meeting from a
certifying authority at least 30 days prior to submitting a request for
certification in accordance with the certifying authority's applicable
submission procedures, unless the certifying authority waives or
shortens the requirement for a pre-filing meeting request.

Sec.  121.5  Request for certification.

    (a) A request for certification shall be in writing, signed, and
dated and shall include a copy of the draft license or permit (unless
legally precluded from obtaining a copy of the draft license or permit)
and any existing and readily available data or information related to
potential water quality impacts from the proposed project.
    (b) Where a project proponent is seeking certification from the
Regional Administrator, a request for certification shall also include
the additional contents identified in paragraph (c) of this section.
Where a project proponent is seeking certification from a certifying
authority other than the Regional Administrator, and that certifying
authority has not identified in regulation additional contents of a
request for certification, the project proponent shall submit a request
for certification as defined in paragraph (c) of this section.
    (c) A request for certification submitted to the Regional
Administrator shall include the following, if not already included in
the draft license or permit:
    (1) The name and address of the project proponent;
    (2) The project proponent's contact information;
    (3) Identification of the applicable Federal license or permit,
including Federal license or permit type, project name, project
identification number, and a point of contact for the Federal agency;
    (4) Where applicable, a list of all other Federal, interstate,
tribal, state, territorial, or local agency authorizations required for
the proposed activity and the current status of each authorization; and
    (5) Documentation that a pre-filing meeting request was submitted
to the certifying authority in accordance with applicable submission
requirements, unless a pre-filing meeting request has been waived.
    (d) A certifying authority shall send written confirmation of the
date of receipt of the request for certification to the project
proponent and Federal agency.

Sec.  121.6  Reasonable period of time.

    (a) The reasonable period of time shall begin upon receipt of a
request for certification.
    (b) The Federal agency and the certifying authority may, within 30
days of receipt of a request for certification, jointly agree in
writing to a reasonable period of time for the certifying authority to
act on the request for certification, provided the reasonable period of
time does not exceed one year from receipt.
    (c) If the Federal agency and the certifying authority do not agree
on the length of a reasonable period of time within 30 days of receipt
of a request for certification, the reasonable period of time shall be
60 days. If a longer period of time is necessary to accommodate the
certifying authority's public notice requirements or force majeure
events (including, but not limited to, government closure or natural
disasters), upon notification by the certifying authority prior to the
end of the reasonable period of time, the reasonable period of time
shall be extended by the period of time necessitated by public notice
requirements or the force majeure event. In its notification, the
certifying authority shall provide the Federal agency with a
justification for such extension in writing. Such an extension may not
exceed one year from receipt of the certification request.
    (d) The Federal agency and certifying authority, after consulting
with the project proponent, may agree to extend the reasonable period
of time in writing for any other reason, provided the reasonable period
of time as extended does not exceed one year from receipt of the
request for certification.

Sec.  121.7  Certification decisions.

    (a) A certifying authority may act on a request for certification
in one of four ways: grant certification, grant certification with
conditions, deny certification, or expressly waive certification.
    (b) A certifying authority shall act on a request for certification
within the scope of certification, as defined at Sec.  121.3, and
within the reasonable period of time, as determined pursuant to Sec.
121.6.
    (c) A grant of certification by a certifying authority shall be in
writing and include the following:
    (1) Name and address of the project proponent and identification of
the applicable Federal license or permit; and
    (2) A statement that the activity as a whole will comply with water
quality requirements.
    (d) A grant of certification with conditions by a certifying
authority shall be in writing and include the following:
    (1) Name and address of the project proponent and identification of
the applicable Federal license or permit;
    (2) Any conditions necessary to assure that the activity as a whole
will comply with water quality requirements; and
    (3) A statement explaining why each of the included conditions is
necessary to assure that the activity as a whole will comply with water
quality requirements.
    (e) A denial of certification by a certifying authority shall be in
writing and include the following:
    (1) Name and address of the project proponent and identification of
the applicable Federal license or permit; and
    (2) A statement explaining why the certifying authority cannot
certify that the activity as a whole will comply with water quality
requirements.
    (f) An express waiver by a certifying authority shall be in writing
and include the following:
    (1) Name and address of the project proponent and identification of
the applicable Federal license or permit; and
    (2) A statement stating that the certifying authority expressly
waives its authority to act on a request for certification.
    (g) If the certifying authority determines that no water quality
requirements are applicable to the activity as a whole, the certifying
authority shall grant certification.

Sec.  121.8  Failure or refusal to act.

    The certification requirement shall be waived if a certifying
authority fails or refuses to act on a request for certification in
accordance with Sec.  121.7(a) within the reasonable period of time, as
defined at Sec.  121.6.

Sec.  121.9  Federal agency review.

    (a) To the extent a Federal agency reviews a certification decision
for compliance with Clean Water Act section 401, its review is limited
to evaluating whether:
    (1) The certification decision indicates whether it is a grant,
grant

with conditions, denial, or express waiver;
    (2) The proper certifying authority issued the certification
decision;
    (3) The certifying authority provided public notice on the request
for certification; and
    (4) The certification decision was issued within the reasonable
period of time, as defined at Sec.  121.6.
    (b) If a Federal agency determines that a certification decision
does not meet the elements identified in paragraph (a)(1) or (3) of
this section, the Federal agency shall notify the certifying authority
and provide the certifying authority with an opportunity to ensure that
its certification decision meets those elements. If necessary, the
reasonable period of time shall be extended to provide the certifying
authority with such an opportunity, but in no case shall the reasonable
period of time exceed one year from the receipt of the certification
request.
    (c) If a Federal agency determines that a certification decision
does not meet the element identified in paragraph (a)(4) of this
section, the Federal agency shall notify the certifying authority and
project proponent in writing that the certification requirement has
been waived in accordance with Sec.  121.8. Such notice shall satisfy
the project proponent's obligations under Clean Water Act section 401.

Sec.  121.10  Modifications.

    (a) The certifying authority may not:
    (1) Revoke or modify a denial of certification;
    (2) Revoke or modify a waiver of certification;
    (3) Revoke a grant of certification (with or without conditions);
or
    (4) Modify a grant of certification (with or without conditions)
into a denial or waiver of certification.
    (b) Provided that the Federal agency and the certifying authority
agree in writing that the certifying authority may modify a grant of
certification (with or without conditions), the certifying authority
may modify the agreed upon portions of the certification.

Sec.  121.11  Requirements for Indian Tribes to administer a water
quality certification program.

    (a) The Regional Administrator may accept and approve a tribal
application for purposes of administering a water quality certification
program if the Tribe meets the following criteria:
    (1) The Indian Tribe is recognized by the Secretary of the Interior
and meets the definitions in Sec.  121.1(f) and (g);
    (2) The Indian Tribe has a governing body carrying out substantial
governmental duties and powers;
    (3) The water quality certification program to be administered by
the Indian Tribe pertains to the management and protection of water
resources that are within the borders of the Indian reservation and
held by the Indian Tribe, within the borders of the Indian reservation
and held by the United States in trust for Indians, within the borders
of the Indian reservation and held by a member of the Indian Tribe if
such property interest is subject to a trust restriction on alienation,
or otherwise within the borders of the Indian reservation; and
    (4) The Indian Tribe is reasonably expected to be capable, in the
Regional Administrator's judgment, of carrying out the functions of an
effective water quality certification program in a manner consistent
with the terms and purposes of the Clean Water Act and applicable
regulations.
    (b) Requests by an Indian Tribe for administration of a water
quality certification program should be submitted to the appropriate
EPA Regional Administrator. The application shall include the following
information, provided that where the Tribe has previously qualified for
eligibility or ``treatment as a state'' under another EPA-administered
program, the Tribe need only provide the required information that has
not been submitted in a previous application:
    (1) A statement that the Tribe is recognized by the Secretary of
the Interior.
    (2) A descriptive statement demonstrating that the tribal governing
body is currently carrying out substantial governmental duties and
powers over a defined area. The statement should:
    (i) Describe the form of tribal government;
    (ii) Describe the types of governmental functions currently
performed by the tribal governing body such as, but not limited to, the
exercise of police powers affecting (or relating to) the health,
safety, and welfare of the affected population, taxation, and the
exercise of the power of eminent domain; and
    (iii) Identify the source of the tribal government's authority to
carry out the governmental functions currently being performed.
    (3) A descriptive statement of the Tribe's authority to regulate
water quality. The statement should include:
    (i) A map or legal description of the area over which the Tribe
asserts authority to regulate surface water quality; and
    (ii) A statement by the Tribe's legal counsel or equivalent
official that describes the basis for the Tribe's assertion of
authority and may include copies of documents such as tribal
constitutions, by-laws, charters, executive orders, codes, ordinances,
and/or resolutions that support the Tribe's assertion of authority.
    (4) A narrative statement describing the capability of the Indian
Tribe to administer an effective water quality certification program.
The narrative statement should include:
    (i) A description of the Indian Tribe's previous management
experience that may include the administration of programs and services
authorized by the Indian Self-Determination and Education Assistance
Act (25 U.S.C. 450, et seq.), the Indian Mineral Development Act (25
U.S.C. 2101, et seq.), or the Indian Sanitation Facility Construction
Activity Act (42 U.S.C. 2004a);
    (ii) A list of existing environmental or public health programs
administered by the tribal governing body and copies of related tribal
laws, policies, and regulations;
    (iii) A description of the entity (or entities) which exercise the
executive, legislative, and judicial functions of the tribal
government;
    (iv) A description of the existing, or proposed, agency of the
Indian Tribe which will assume primary responsibility for establishing
and implementing a water quality certification program; and
    (v) A description of the technical and administrative capabilities
of the staff to administer and manage an effective water quality
certification program or a plan which proposes how the Tribe will
acquire additional administrative and technical expertise. The plan
must address how the Tribe will obtain the funds to acquire the
administrative and technical expertise.
    (5) Additional documentation required by the Regional Administrator
which, in the judgment of the Regional Administrator, is necessary to
support a tribal application.
    (c) The procedure for processing a Tribe's application is as
follows:
    (1) The Regional Administrator shall process an application of an
Indian Tribe submitted pursuant to paragraph (b) of this section in a
timely manner. The Regional Administrator shall promptly notify the
Indian Tribe of receipt of the application.
    (2) Except as provided in paragraph (c)(4) of this section, within
30 days after receipt of the Tribe's application, the Regional
Administrator shall provide appropriate notice. The notice shall:

    (i) Include information on the substance and basis of the Tribe's
assertion of authority to regulate the quality of reservation waters;
    (ii) Be provided to all appropriate governmental entities; and
    (iii) Provide 30 days for comments to be submitted on the tribal
application. Comments shall be limited to the Tribe's assertion of
authority.
    (3) If a Tribe's asserted authority is subject to a competing or
conflicting claim, the Regional Administrator, after due consideration,
and in consideration of other comments received, shall determine
whether the Tribe has adequately demonstrated that it meets the
requirements of paragraph (a)(3) of this section.
    (4) Where, after [EFFECTIVE DATE OF FINAL RULE], EPA has determined
that a Tribe qualifies for treatment in a similar manner as a state for
the Clean Water Act section 303(c) Water Quality Standards Program,
Clean Water Act section 303(d) Impaired Water Listing and Total Maximum
Daily Loads Program, Clean Water Act section 402 National Pollutant
Discharge Elimination System Program, or Clean Water Act section 404
Dredge and Fill Permit Program, and has provided notice and an
opportunity to comment on the Tribe's assertion of authority to
appropriate governmental entities as part of its review of the Tribe's
prior application, no further notice to governmental entities, as
described in paragraph (c)(2) of this section, shall be provided with
regard to the same Tribe's application for the water quality
certification program, unless the application presents to the EPA
Regional Administrator different jurisdictional issues or significant
new factual or legal information relevant to jurisdiction.
    (5) Where the Regional Administrator determines that a Tribe meets
the requirements of this section, they shall promptly provide written
notification to the Indian Tribe that the Tribe is authorized to
administer the water quality certification program.
    (d) An Indian Tribe may submit a tribal application for purposes of
administering only the Clean Water Act section 401(a)(2) portion of a
water quality certification program.

Subpart B--Neighboring Jurisdictions

Sec.  121.12  Notification to the Regional Administrator.

    (a) Within five days of the date that it has received both the
application and either a certification or waiver for a Federal license
or permit, the Federal agency shall provide written notification to the
Regional Administrator.
    (1) The notification shall include a copy of the certification or
waiver and the application for the Federal license or permit.
    (2) The notification shall also contain a general description of
the proposed project, including but not limited to, permit or license
identifier, project location (e.g., latitude and longitude), a project
summary including the nature of any discharge and size or scope of
activity, and whether the Federal agency is aware of any neighboring
jurisdiction providing comment about the project. If the Federal agency
is aware that a neighboring jurisdiction provided comment about the
project, it shall include a copy of those comments in the notification.
    (b) If the Regional Administrator determines there is a need for
supplemental information to make a determination about potential
neighboring jurisdiction effects pursuant to Clean Water Act section
401(a)(2), the Regional Administrator may make a written request to the
Federal agency that such information be provided in a timely manner for
EPA's determination, and the Federal agency shall obtain that
information from the project proponent and forward the additional
information to the Administrator within such timeframe.
    (c) The Regional Administrator may enter into an agreement with a
Federal agency regarding the manner of this notification process and
the provision of supplemental information.

Sec.  121.13  Determination of effects on neighboring jurisdictions.

    (a) Within 30 days after the Regional Administrator receives notice
in accordance with Sec.  121.12(a), the Regional Administrator shall
determine whether a discharge from the certified or waived project may
affect water quality in a neighboring jurisdiction.
    (b) If the Regional Administrator determines that the discharge
from the project may affect water quality in a neighboring
jurisdiction, within 30 days after receiving notice in accordance with
Sec.  121.12(a), the Regional Administrator shall notify the
neighboring jurisdiction, the certifying authority, the Federal agency,
and the project proponent in accordance with paragraph (c) of this
section.
    (c) Notification from the Regional Administrator shall be in
writing and shall include:
    (1) A statement that the Regional Administrator has determined that
a discharge from the project may affect the neighboring jurisdiction's
water quality;
    (2) A copy of the license or permit application and related
certification or waiver; and
    (3) A statement that the neighboring jurisdiction has 60 days to
notify the Regional Administrator, the Federal agency, and the
certifying authority, in writing, whether it has determined that the
discharge will violate any of its water quality requirements, to object
to the issuance of the Federal license or permit, and to request a
public hearing from the Federal agency.
    (d) A Federal license or permit may not be issued pending the
conclusion of the process described in Sec. Sec.  121.14 and 121.15.

Sec.  121.14  Neighboring jurisdiction objection and request for a
public hearing.

    (a) If the neighboring jurisdiction determines that a discharge
will violate any of its water quality requirements, within 60 days
after receiving notice in accordance with Sec.  121.13(c), the
neighboring jurisdiction shall notify the Regional Administrator, the
Federal agency, and the certifying authority in accordance with
paragraph (b) of this section.
    (b) Notification from the neighboring jurisdiction shall be in
writing and shall include:
    (1) A statement that the neighboring jurisdiction objects to the
issuance of the Federal license or permit;
    (2) An explanation of the reasons supporting the neighboring
jurisdiction's determination that the discharge will violate its water
quality requirements, including but not limited to, an identification
of those water quality requirements that will be violated; and
    (3) A request for a public hearing from the Federal agency on its
objection.

Sec.  121.15  Public hearing and Federal agency evaluation of
neighboring jurisdiction objection.

    (a) Upon a request for hearing from a neighboring jurisdiction in
accordance with Sec.  121.14(b), the Federal agency shall hold a public
hearing on the neighboring jurisdiction's objection to the license or
permit.
    (b) The Federal agency shall provide public notice at least 30 days
in advance of the hearing.
    (c) At the hearing, the Regional Administrator shall submit to the
Federal agency its evaluation and recommendation(s) concerning the
objection.
    (d) The Federal agency shall consider recommendations from the
neighboring jurisdiction and the Regional

Administrator, and any additional evidence presented to the Federal
agency at the hearing, and determine whether additional license or
permit conditions may be necessary to ensure that any discharge from
the project will comply with the neighboring jurisdiction's water
quality requirements. If such conditions may be necessary, the Federal
agency shall include them in the license or permit.
    (e) If additional license or permit conditions cannot ensure that
the discharge from the project will comply with the neighboring
jurisdiction's water quality requirements, the Federal agency shall not
issue the license or permit.

Subpart C--Certification by the Administrator

Sec.  121.16  When the Administrator certifies.

    (a) Certification or waiver by the Administrator is required where
no state, tribe, or interstate agency has authority to give such a
certification.
    (b) When acting pursuant to this section, the Administrator shall
comply with the requirements of Clean Water Act section 401 and this
part.

Sec.  121.17  Public notice and hearing.

    (a) Within 20 days of receipt of a request for certification, the
Administrator shall provide public notice of receipt of a request for
certification. Following such public notice, the Administrator shall
provide an opportunity for public comment.
    (b) If the Administrator determines that a public hearing on a
request for certification is appropriate or necessary, the
Administrator shall schedule such hearing at an appropriate time and
place and, to the extent practicable, give all interested and
potentially affected parties the opportunity to present evidence or
testimony in person or by other means.

Subpart D--Review and Advice

Sec.  121.18  Review and advice.

    Upon the request of any Federal agency, certifying authority, or
project proponent, the Administrator shall provide any relevant
information on applicable effluent limitations, or other limitations,
standards, regulations, or requirements, or water quality criteria, and
shall, when requested by any Federal agency, certifying authority, or
project proponent, comment on any methods to comply with such
limitations, standards, regulations, requirements, or criteria.

PART 122--EPA ADMINISTERED PERMIT PROGRAMS: THE NATIONAL POLLUTANT
DISCHARGE ELIMINATION SYSTEM

0
2. The authority citation for part 122 continues to read as follows:

    Authority:  The Clean Water Act, 33 U.S.C. 1251 et seq.

0
3. Section 122.4 is amended by revising paragraph (b) to read as
follows:

Sec.  122.4  Prohibitions (applicable to State NPDES programs, see
Sec.  123.25).

* * * * *
    (b) When the applicant is required to obtain a State or other
appropriate certification under section 401 of the CWA and that
certification has not been obtained or waived;
* * * * *
0
4. Section 122.44 is amended by revising paragraph (d)(3) to read as
follows:

Sec.  122.44  Establishing limitations, standards, and other permit
conditions (applicable to State NPDES programs, see Sec.  123.25).

* * * * *
    (d) * * *
    (3) Conform to the conditions in a State certification under
section 401 of the CWA when EPA is the permitting authority;
* * * * *

PART 124--PROCEDURES FOR DECISIONMAKING

0
5. The authority citation for part 124 continues to read as follows:

    Authority: Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq.; Safe Drinking Water Act, 42 U.S.C. 300f et seq.; Clean
Water Act, 33 U.S.C. 1251 et seq.; Clean Air Act, 42 U.S.C. 7401 et
seq.

0
6. Section 124.53 is amended by:
0
a. Removing paragraphs (b), (c), and (e);
0
b. Redesignating paragraph (d) as paragraph (b); and
0
c. Revising newly redesignated paragraph (b).
    The revision reads as follows:

Sec.  124.53  State certification.

* * * * *
    (b) State certification shall be granted or denied within the
reasonable period of time as required under CWA section 401(a)(1). The
State shall send a notice of its action, including a copy of any
certification, to the applicant and the Regional Administrator.
0
7. Section 124.54 is amended by revising paragraphs (a) and (b) to read
as follows:

Sec.  124.54  Special provisions for State certification and
concurrence on applications for section 301(h) variances.

    (a) When an application for a permit incorporating a variance
request under CWA section 301(h) is submitted to a State, the
appropriate State official shall either:
    (1) Deny the request for the CWA section 301(h) variance (and so
notify the applicant and EPA) and, if the State is an approved NPDES
State and the permit is due for reissuance, process the permit
application under normal procedures; or
    (2) Forward a copy of the certification required under CWA section
401(a)(1) to the Regional Administrator.
    (b) When EPA issues a tentative decision on the request for a
variance under CWA section 301(h), and no certification has been
received under paragraph (a) of this section, the Regional
Administrator shall forward the tentative decision to the State. If the
State fails to deny or grant certification and concurrence under
paragraph (a) of this section within the reasonable period of time
provided in CWA section 401(a)(1), certification shall be waived and
the State shall be deemed to have concurred in the issuance of a CWA
section 301(h) variance.
* * * * *
0
8. Section 124.55 is amended by:
0
a. Revising paragraph (a);
0
b. Removing paragraph (b);
0
c. Redesignating paragraphs (c), (d), (e), and (f) as paragraphs (b),
(c), (d), and (e) respectively; and
0
d. Revising newly redesignated paragraphs (b) and (c).
    The revisions read as follows:

Sec.  124.55  Effect of State certification.

    (a) When certification is required under CWA section 401(a)(1), no
final permit shall be issued:
    (1) If certification is denied; or
    (2) Unless the final permit incorporates the conditions specified
in the certification.
    (b) A State may not condition or deny a certification on the
grounds that State law allows a less stringent permit condition.
    (c) A condition in a draft permit may be changed during agency
review in any manner consistent with a corresponding certification. No
such changes shall require EPA to submit the permit to the State for
recertification.
* * * * *
[FR Doc. 2022-12209 Filed 6-8-22; 8:45 am]
BILLING CODE 6560-50-P