proposed project. If the Agency does not provide the required
notification within 30 days of receiving notification from a federal
agency, the federal agency may resume processing the federal license or
permit. The EPA need not wait the full 30 days, but may notify the
federal agency at any time so that it may continue processing the
license or permit.
    Some public commenters requested changes to the proposed
procedures, such as different timelines for neighboring jurisdictions
to make a decision. One commenter requested that timelines be flexible
and incorporate the same factors that the federal agencies would
consider for determining the reasonable period of time. Other
commenters stated that neighboring jurisdictions should be able to
request additional information to make a determination. The EPA is
finalizing notification procedures substantively as proposed, because
they are consistent with the text of section 401(a)(2).
    The final rule also provides a predictable framework for
determinations by neighboring jurisdictions. The final rule requires
that the EPA's notification to neighboring jurisdictions be in writing,
dated, and state that the neighboring jurisdiction has 60 days to
notify the EPA and the federal agency, in writing, whether or not the
discharge will violate any of its water quality requirements (as
defined at section 121.1(n) of the final rule) and whether the
jurisdiction will object to the issuance of the federal license or
permit and request a public hearing from the federal agency. The final
rule also requires that, if the neighboring jurisdiction requests a
hearing, the federal agency must forward the hearing notice to the EPA
at least 30 days before the hearing takes place. The public hearing may
be conducted in-person or remotely through telephone, online, or other
virtual platforms, as deemed appropriate by the Agency. Under the final
rule, the EPA must provide its recommendations on the federal license
or permit at the hearing. After considering the EPA's and the
neighboring jurisdiction's input, the federal agency is required to
condition the license or permit as necessary to assure that the
discharge from the certified project will comply with the neighboring
jurisdiction's water quality requirements, as the term is defined in
the final rule. Consistent with section 401(a)(2), under the final
rule, if additional conditions cannot assure that the discharge from
the certified project will comply with the neighboring jurisdiction's
water quality requirements, the federal agency cannot issue the license
or permit. The final rule further clarifies that the federal agency may
not issue the license or permit pending the conclusion of the
determination of effects on a neighboring jurisdiction.
    One commenter asserted that the EPA should consider all Tribes as
neighboring jurisdictions for purposes of section 401(a)(2),
irrespective of whether they have TAS. The commenter argued that
limiting the application of the neighboring jurisdiction provision to
those Tribes with TAS would subject Tribes without TAS to a lesser
standard of review and ultimately resource protection. The Agency has
determined that only States or authorized Tribes are considered to be
``neighboring jurisdictions'' under the final rule. As explained in
section II.F.1 of this notice, section 518 of the CWA authorizes the
EPA to treat eligible Tribes with reservations ``as a State'' within
the meaning of that provision, but the CWA does not authorize the EPA
to treat all Tribes in that manner. 33 U.S.C. 1377(e).\63\
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    \63\ This final rule does not change the regulations under which
federally recognized Indian Tribes obtain authorization to be
treated in the same manner as states. 40 CFR 131.4(c) expressly
states that where the EPA determines that a Tribe is eligible for
TAS for purposes of water quality standards, the Tribe is likewise
eligible to the same extent as a State for purposes of section 401
certifications. The regulations also establish criteria, application
requirements, and application processing procedures for Tribes to
obtain TAS authorization for purposes of CWA water quality
standards. See 40 CFR 131.8.
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J. The EPA's Role in Review and Advice

    The final rule reaffirms the EPA's important role in providing
advice and technical assistance as requested through the certification
process. The final rule provision in section 121.16 has been modified
from the proposal to better align with the text of section 401 and the
scope of certification in this final rule.
    As described in the proposal, the EPA's 1971 regulations limited
the provision of technical assistance to concerns regarding ``water
quality standards.'' To be consistent with the 1972 amendments, the
final rule replaces this term with the broader ``water quality
requirements'' which, as defined in the final rule, includes water
quality standards. The proposed rule included a provision specifically
authorizing a certifying authority, federal agency, or project
proponent to request assistance from EPA to evaluate whether a
certification condition was intended to address water quality effects

from the discharge. The Agency is not finalizing that provision because
it concluded that the final rule section 121.16 is broad enough to
capture all technical advice that may be requested by certifying
authorities, federal agencies, and project proponents.
    Some commenters expressed concern that the proposed rule's
description of the EPA's review and advice role goes beyond the
authority provided in section 401(b). Other commenters supported the
EPA's providing assistance upon request. Other commenters asked whether
the EPA would be the ``decision maker'' or a party to litigation
challenging a certification if a project proponent, certifying
authority, or federal agency relied on the EPA's technical advice at
any point during the certification process.
    Under the final rule, federal agencies, certifying authorities, and
project proponents may seek the EPA's technical expertise at any point
during the section 401 water quality certification process. The Agency
disagrees with commenters who asserted that the proposed regulation
exceeded the authority provided in section 401(b). The Agency is not
asserting independent or expanded authority in this role, but rather
will provide assistance upon request. The legislative history for the
Act provides further support for the Agency's technical role under
section 401(b). See H.R. Rep. No. 92-911, at 124 (1972) (``The
Administrator may perform services of a technical nature, such as
furnishing information or commenting on methods to comply with
limitations, standards, regulations, requirements or criteria, but only
upon request of a State, interstate agency or Federal agency.''). Under
the final rule section 121.16, a certifying authority, federal agency,
or project proponent may request assistance from the Administrator to
provide relevant information and assistance regarding the meaning of,
content of, application of, and methods to comply with water quality
requirements. This provision of the final rule is not intended to give
the EPA authority to make certification decisions, or to independently
review certifications or certification requests. Nor does this
provision authorize the EPA to interpret a State or Tribal water
quality standard or designated use in a manner that is inconsistent
with the State or Tribe's interpretation or implementation of that
standard. This provision is merely intended to implement a provision of
the statute that has been in effect since 1972. The provision of
technical advice to project proponents, certifying authorities, or
federal agencies is not a final agency action, and it does not render
the EPA a decision maker for purposes of the certification action or
subsequent action of the federal agency.

K. Enforcement

1. What is the Agency finalizing?
    Under the final rule, the federal agency issuing the applicable
federal license or permit is responsible for enforcing certification
conditions that are incorporated into a federal license or permit. Once
the certifying authority acts on a certification request, the CWA does
not provide independent authority for certifying authorities to enforce
the conditions that are included in a certification under federal law.
Under the final rule, the EPA is interpreting the CWA to clarify that
this enforcement role is reserved to the federal agency issuing the
federal license or permit.
    Consistent with section 401, the final rule also expands the post-
certification inspection function from the 1971 certification
regulations to all certifying authorities. Under the final rule,
certifying authorities are provided the opportunity to inspect the
facility or activity prior to initial operations, in order to determine
whether the discharge from the certified project will violate the
certification. After an inspection, the certifying authority is
required to notify the project proponent and federal agency in writing
if it determines that the discharge from the certified project will
violate the certification. The certifying authority is also required to
specify recommendations concerning measures that may be necessary to
bring the certified project into compliance with the certification.
2. Summary of Final Rule Rationale and Public Comment
    The CWA expressly notes that all certification conditions ``shall
become a condition on any Federal license or permit'' subject to
section 401.33 U.S.C. 1341(d). The EPA's 1971 certification regulations
did not discuss the federal agency's responsibility to enforce
certification conditions after they are incorporated into the permit.
Under the final rule and consistent with the Act, the federal agency is
responsible for enforcing certification conditions that are
incorporated into a federal license or permit. In limited
circumstances, the EPA's 1971 certification regulations required the
Agency to provide notice of a violation and to allow six months for a
project proponent to return to compliance before pursuing further
enforcement. See 40 CFR 121.25. The EPA finds no support for that
provision in CWA section 401, and such a provision is not included in
the final rule.
a. Federal Agency Enforcement of Certification Conditions
    The CWA does not provide an independent regulatory enforcement role
for certifying authorities. The role of the certifying authority is to
review the proposed project and to either grant certification, grant
certification with conditions, deny certification, or waive
certification. Once the certifying authority acts on a certification
request, section 401 does not provide an additional or ongoing role for
certifying authorities to enforce certification conditions under
federal law. Rather, federal agencies typically have enforcement
authority in accordance with the enabling statutes that provide such
agencies with permitting and licensing authority.
    Many commenters agreed with the proposal that the enforcement of
section 401 conditions in a federal license or permit is the sole
responsibility of the federal agency that issues the license or permit.
A few commenters asserted that nothing in the CWA provides States with
the authority to enforce or implement conditions of a section 401
certification. Another commenter stated that if certification
conditions were enforceable independent of the federal license or
permit, there would have been no need for Congress to require
conditions to become part of the federal license or permit under
section 401(d). Another commenter requested that the final rule
unequivocally provide that section 401 certification conditions may be
enforced only after they are incorporated into the federal license or
permit and only in the same manner as the other conditions of the
federal license or permit, and that such conditions may not be
independently enforced pursuant to the CWA. As reflected in the final
rule regulatory text, the EPA generally agrees with these commenters.
    Other commenters asserted that the rule should allow States and
Tribes to independently enforce their section 401 certification
conditions. Some commenters asserted that providing federal agencies
with exclusive authority to enforce section 401 certification
conditions, and limiting State enforcement, is contrary to the language
of the CWA, legislative history, and case law, citing Deschutes River
Alliance v. PGE Co., 249 F.Supp.3d 1182 (D. Or. 2017); S.D. Warren, 547
U.S. at 386. Another commenter

asserted that the Agency failed to cite any legal authority for
prohibiting States from enforcing their own certifications. One
commenter asserted that section 401 does not override State enforcement
authority under State law, in those States that have provided for it. A
few commenters referenced the savings clause in section 510 as
explicitly preserving State authority to enforce State laws and
requirements and suggested that reservation includes enforcement of
section 401 certifications.
    The EPA has considered these comments and has concluded that some
of them reflect a misunderstanding of the proposed rule. The Agency
recognizes that some States have enacted State laws authorizing State
enforcement of certifications or certification conditions in State
court. State enforcement under State authorities may be lawful where
State authority is not preempted by federal law.\64\ Nothing in this
final rule prohibits States from exercising their enforcement authority
under enacted State laws; however, the legality of such enforcement
actions may be subject to review by a court of competent jurisdiction.
Therefore, today's rule does not implicate, let alone violate, the
reservation of state authority contained in section 510 of the Act.
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    \64\ Examples of situations where State authority would be
preempted by federal law include FERC's sole authority to approve
the construction of interstate natural gas pipelines and to regulate
the transportation of natural gas for resale on these interstate
pipelines under the Natural Gas Act (5 U.S.C. 717 et seq.; see also
Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (1988); Dominion
Transmission, Inc. v. Summers, 723 F.3d 238 (D.C. Cir. 2013)) and
FERC's exclusive authority to license nonfederal hydropower projects
under the Federal Power Act (16 U.S.C. 797(e), 817(1); see also
California v. Federal Energy Regulatory Comm'n, 495 U.S. 490 (1990);
First Iowa Hydro-Electric Cooperative v. FPC, 328 U.S. 152 (1946)).
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    Rather, the EPA concludes that section 401 of the CWA does not
authorize States and Tribes to independently enforce section 401
certification conditions under federal law. The CWA expressly
authorizes the certifying authority to review the proposed project and
to either grant certification, grant certification with conditions,
deny certification, or waive certification. Once the certifying
authority acts on a certification request, the CWA does not authorize
certifying authorities to enforce certification conditions under
federal law; rather, a federal agency may enforce its license or
permit, including section 401 certification conditions. The EPA has
reviewed and considered legislative history from the 1972 amendments
and concludes that, on this point, the legislative history is either
silent or lacks a definitive statement of congressional intent.\65\ The
Agency agrees with the commenter who noted that if certification
conditions were enforceable independent of the federal license or
permit, there would have been no need for Congress to require
conditions to be included in the federal license or permit under
section 401(d).
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    \65\ Most of the legislative history simply repeats the language
from section 401 that certification conditions ``will become a
condition on any Federal license or permit'' (H.R. Rep. No. 92-911,
at 124 (1972) or that the certification becomes an ``enforceable
condition on the Federal license or permit'' (S. Rep. No. 92-414, at
69 (1971)). However, the Senate's consideration of the Conference
report states that ``If a State establishes more stringent
limitations and/or time schedules pursuant to Section 303, they
should be set forth in a certification under Section 401. Of course,
any more stringent requirements imposed by a State pursuant to this
section shall be enforced by the Administrator.'' Sen. Consideration
of Conf. Rep. No. 92-1236 (Exhibit 1), at 171 (1972) (emphasis
added) As discussed in sections III.H, III.I, and III.J of this
notice, the text of section 401 provides specific roles for EPA as a
certifying authority, protecting waters in neighboring
jurisdictions, and providing technical assistance, but section 401
does not provide an enforcement role for EPA when it is not the
federal licensing or permitting agency.
---------------------------------------------------------------------------

    A few commenters asserted that without State enforcement, project
proponents will be less likely to comply with the State conditions, to
the detriment of the environment. Some commenters asserted that the
certifying authority, not the federal agency, often has the technical
knowledge, organizational structure, and staffing capacity to conduct
inspections and to enforce section 401 certification conditions. One
commenter noted that the proposal creates regulatory uncertainty if
States cannot enforce certifications and conditions. Other commenters
suggested that enforcement of section 401 certifications should be done
jointly by federal agencies and certifying authorities. One commenter
asserted that the proposed rule should be revised to allow federal
agencies and States to determine their appropriate roles in enforcing
water quality certifications. Another commenter asserted that federal
agencies are not precluded from consulting with certifying authorities
if additional substantive expertise is needed, but argued that it was
important for project proponents to know to whom they are accountable
and to eliminate the potential for any conflicting obligations.
    The Agency disagrees with commenters' suggestion that water quality
will be compromised if States cannot independently enforce
certifications under federal law. The federal licensing or permitting
agency remains responsible for exercising its enforcement authority for
all provisions of the federally issued license or permit, including any
conditions incorporated from a certification. The Agency also disagrees
with commenters who requested that the EPA include authority in the
final rule for States and Tribes to independently enforce or to jointly
enforce certification conditions. The EPA cannot create via rulemaking
federal or state enforcement authority that is not expressly authorized
in the statute. However, the EPA always encourages coordination and
cooperation between certifying authorities and federal agencies,
particularly if such coordination can result in greater accountability
and compliance with certification conditions. This final rule is
intended to promote efficient permitting processes and regulatory
certainty by clarifying that section 401 does not provide an additional
or ongoing role for certifying authorities to enforce certification
conditions under federal law. This final rule provides clarification on
who holds project proponents accountable under federal law and
eliminates any confusion about which entity is responsible for
enforcing specific certification conditions in the federal license or
permit. This final rule also eliminates the possibility of inconsistent
interpretation and enforcement of the certification conditions in the
federal license or permit, increasing the likelihood that project
proponents will be able to comply with the certification conditions.
Additionally, as discussed above, the final rule does not preclude
States from pursuing enforcement actions where authorized under State
law and not preempted by other federal statutory provisions.
Importantly, the Agency agrees that federal agencies are not precluded
from consulting with certifying authorities or the EPA when exercising
their enforcement authority under CWA section 401.
    The Agency received feedback during stakeholder outreach, both pre-
proposal and post-proposal, expressing concern that federal agencies
may not consistently or sufficiently enforce certification conditions
incorporated into their federal licenses or permits. The Agency has
also received feedback from other federal agencies noting the potential
challenge with enforcing certain certification conditions, particularly
those that are ill-defined, that lack clarity, or that are beyond the
scope of certification as outlined in section III.E of this notice. The
Agency anticipates the clarity provided in this final rule with respect
to the scope of a certification, the scope of the conditions

of a certification (see section III.E.2.c of this notice), and the
requirements for a certification with conditions (see section III.G.2.b
of this notice) will provide federal agencies with sufficient
information to enable them to effectively enforce certification
conditions.
    Enforcement plays an essential role in maintaining robust
compliance with the CWA, and a critical part of any strong enforcement
program is the appropriate use of enforcement discretion. See, e.g.,
Heckler v. Chaney, 470 U.S. 821, 831 (1985). Enforcement programs
exercise discretion and make careful and informed choices about where
to conduct investigations, identifying the most serious violations and
reserving limited enforcement resources for the cases that can make the
most difference. See Sierra Club v. Whitman, 268 F.3d 898, 902-03 (9th
Cir. 2001). It is important for enforcement programs to retain their
enforcement discretion because federal agencies are in the best
position to (1) determine whether a particular action is likely to
succeed, (2) assess whether the action fits agency policies, and (3)
determine whether there are enough agency resources to undertake and
effectively prosecute the action, taking account of all other agency
constraints and priorities. See Heckler, 470 U.S. at 831.
    A couple of commenters asserted that section 401 is not included in
the CWA enforcement provision, CWA section 309, and that the CWA
citizen suit provision, CWA section 505, does not authorize a citizen
suit to enforce certification conditions. One commenter noted that
although Dombeck held that a citizen suit could be used to challenge
the issuance of a permit without a certification, the court did not
make reference to the enforcement of certification conditions. A few
other commenters asserted that enforcement of section 401 certification
conditions is authorized under the CWA citizen suit provision, citing
CWA section 505, Oregon Natural Desert Ass'n v. Dombeck, 172 F.3d 1092
(9th Cir. 1998), and Deschutes River Alliance v. PGE Co., 249 F.Supp.3d
1182 (D. Or. 2017).
    The EPA considered these public comments and the varying
interpretations described above and is declining to adopt a particular
interpretation in this final rule. The EPA did not propose an
interpretation of the CWA section 505 citizen suit provision and did
not solicit comment on its applicability to section 401 certifications
or certification conditions, and EPA is therefore declining to finalize
an interpretation of these provisions in this final rule.
    Section 401(a)(4) and the EPA's 1971 certification regulations at
40 CFR part 121.26 through 121.28 describe circumstances in which the
certifying authority may inspect a facility that has received
certification prior to operation \66\ and may notify the federal agency
so that the agency may determine whether the facility will violate
applicable water quality requirements. 33 U.S.C. 1341(a)(4). The Agency
is updating these regulations to reflect the scope of certification
review under the modern CWA. See section 121.11 of the final rule and
section III.E of this notice. The Agency has made minor, non-
substantive modifications to section 121.11(a) from proposal to match
the language of section 121.11(b) and section 401(a)(4). Additionally,
consistent with section 401, the EPA is expanding this inspection
function to all certifying authorities and is clarifying the process by
which certifying authorities should notify the federal agency and
project proponent of any concerns arising from inspections.
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    \66\ The Agency notes that operation may include implementation
of a certified project.
---------------------------------------------------------------------------

    Consistent with section 401, this final rule provides certifying
authorities the opportunity to inspect the facility or activity prior
to initial operation in order to determine whether the discharge from
the certified project will violate the certification. The EPA notes
that section 401(a)(4) authorizes certifying authorities to ``review
the manner in which the facility or activity shall be operated . . . ''
for purposes of assuring that water quality requirements will not be
violated. 33 U.S.C. 1341(a)(4). The final rule uses the terms
``inspect'' and ``inspection'' because these are well understood terms
that provide additional clarity in the final rule. The Agency does not
expect these terms to change the meaning of section 401(a)(4), as
implemented through section 121.11 of the final rule. After an
inspection, the certifying authority is required to notify the project
proponent and the federal agency responsible for issuing the federal
license or permit in writing if the discharge from the certified
project will violate the certification. The certifying authority is
also required to specify recommendations concerning measures that may
be necessary to bring the certified project into compliance with the
certification.
    Some commenters asserted that a certifying authority's compliance
assurance and enforcement role should not be limited to one pre-
operational inspection and asserted that the certifying authority must
be allowed to inspect the project both before and during operation in
order to ensure the project is compliant with any certification
conditions. One commenter explained that the certifying authority would
not always be able to determine compliance with all conditions of the
certification prior to operation. Another commenter asserted that it
would be unacceptable for the State (rather than the project proponent)
to identify the measures necessary to correct identified violations of
certification conditions. Another commenter stated that it is unclear
whether States have jurisdiction over post-license maintenance and
repair projects that have an impact on water quality.
    The EPA disagrees with commenters who suggested that the final rule
should expand the inspection and enforcement authority provided in
section 401. As finalized, this rule is consistent with the breadth of
inspection and enforcement authority provided in section 401. This
provision in the final rule is intended to allow the certifying
authority the opportunity to inspect the facility or activity to
determine whether the discharge will violate the certification issued.
This final rule clarifies that after commencement of operations,
enforcement of certification conditions incorporated into the federal
license or permit is reserved to the federal agency that issued the
federal license or permit under federal law. Accordingly, after
commencement of operations, all inspections and enforcement will be
conducted by the federal agencies. As discussed above, federal agencies
are not precluded from consulting with certifying authorities or the
EPA when exercising their enforcement authority under section 401.
b. Reasonable Assurance vs. Will Comply
    The proposed rule replaced the language from the existing
regulations requiring a ``reasonable assurance that the proposed
activity will not result in a violation of applicable water quality
standards'' with language requiring ``that a discharge from a Federally
licensed or permitted activity will comply with water quality
requirements.'' The Agency received comments expressing concerns about
this proposed change. According to these commenters, the ``will
comply'' language could result in States' including certification
conditions that are difficult or impossible to comply with, resulting
in greater non-compliance by project proponents. A few commenters
expressed concern that ``will comply'' would impose a stricter standard
on States than ``reasonable

assurance,'' such that they would be unable to develop conditions that
include adaptive management provisions. These commenters maintained
that the ``reasonable assurance'' standard currently allows for
adaptive future decision-making despite present uncertainties. Other
commenters stated that, in some cases, certifying authorities may be
unable to demonstrate that a proposed project will be in compliance
with water quality requirements at all times in the future, potentially
resulting in more denials. Another commenter stated that the language
in the final rule should include a ``reasonable assurance'' standard
that a discharge would meet water quality requirements, rather than the
``will comply'' standard in the proposal. Several commenters noted that
sections 401(a)(3) and (a)(4) retained the ``reasonable assurance''
language and asserted that Congress inadvertently changed the language
in (a)(1) and (d). Another commenter argued that the ambiguity
throughout 401(a) and (d) suggests that the competing provisions cannot
be harmonized based on a plain language reading of the statute alone.
    The Agency disagrees with the suggestion that the ``reasonable
assurance'' language should be retained in the final rule. The
``reasonable assurance'' language in the EPA's 1971 certification
regulations was an artifact from the pre-1972 version of section 21(b),
which provided that the certifying authority would certify ``that there
is reasonable assurance . . . that such activity will be conducted in a
manner which will not violate applicable water quality standards.''
Public Law 91-224, 21(b)(1), 84 Stat. 91 (1970). The Agency
acknowledges that the inclusion of the phrase ``reasonable assurance''
in section 401(a)(3) and (a)(4) creates some ambiguity. The legislative
history does not explain why Congress retained the term in sections
401(a)(3) and (a)(4) but not in sections 401(a) and (d).
    Under basic canons of statutory construction, the EPA begins with
the presumption that Congress chose its words intentionally. See, e.g.,
Stone v. INS, 514 U.S. 386, 397 (1995) (``When Congress acts to amend a
statute, we presume it intends its amendment to have real and
substantial effect.''). The Agency presumes that Congress chose to use
the phrase ``will comply'' in sections 401(a)(1) and (d), while
retaining the phrase ``reasonable assurance'' in 401(a)(3) and (a)(4).
As such, the scope under this final rule and the ``will comply''
language are consistent with the 1972 CWA amendments to section
401(a)(1) and (d), which require certifying authorities to conclude
that a discharge ``will comply'' with water quality requirements (as
defined in section 121.1(n) of this final rule).
    The Agency disagrees with the suggestion that using ``will comply''
will place an impossible standard on certifying authorities. The Agency
does not intend or believe that the statutory language requires States
to ensure that a project will maintain strict compliance, in every
respect, throughout its entire existence. The inclusion of the
statutory language ``will comply'' does not require certifying
authorities to provide absolute certainty that applicants for a federal
license or permit will never violate water quality requirements.
Indeed, future compliance depends on many factors besides just facility
design and operation, and it would not be reasonable for an authority
to certify that no unknown future event could ever result in a
violation of the certification. The use of the language comparable to
``will comply'' is not uncommon in CWA regulatory programs. For
example, CWA section 402 contemplates that an NPDES permits may issue
only upon a showing that discharge ``will meet'' various enumerated
provisions. 33 U.S.C. 1342(a). This standard has not precluded States,
Tribes, or the EPA from routinely issuing NPDES permits for a variety
of discharges; nor has it resulted in NPDES permits that are impossible
for permittees to comply with. The Agency concludes that use of the
statutory language ``will comply'' in the final rule remains loyal to
the words that Congress chose when it enacted section 401. The Agency
has no theoretical or empirical basis to conclude that the language in
the final rule will materially change the way in which certifying
authorities, including the EPA, process certification requests, so long
as certifying authorities act in good faith and in accordance with CWA
section 401.

L. Modifications

1. What is the Agency finalizing?
    The EPA is finalizing the rule as proposed and is removing EPA's
oversight role for modifications to an existing certification.
Additionally, the final rule does not authorize or include any
procedure for certifying authorities to modify certifications after
issuance. As discussed below, there are other established procedures
that certifying authorities may rely on to address modifications,
should the need arise.
2. Summary of Final Rule Rationale and Public Comment
a. The EPA's Role in Modifications
    Section 401 does not provide an express oversight role for the EPA
with respect to the issuance or modification of section 401
certifications. The EPA's role under section 401 consists of providing
a common framework for the program through rulemaking, providing
technical assistance under section 401(b), ensuring the protection of
other States' waters under section 401(a)(2), and acting as the
certifying authority in some circumstances. However, the EPA's 1971
certification regulations provided the Agency an oversight role in the
unique context of modifications to existing water quality
certifications. 40 CFR 121.2(b). The final rule removes this oversight
role from the regulatory text, as it is inconsistent with the statute.
    The Agency solicited comment generally on the appropriate scope of
the EPA's oversight role under section 401, and specifically whether
the EPA should play any role in oversight of State or Tribal
certifications or modifications, and, if so, what that role should be.
The Agency received a considerable number of public comments on this
issue, most of which supported removing the EPA's oversight role for
modifications to certifications. Some commenters agreed with the
proposal that there is no statutory basis for section 121.2(b) of the
1971 certification regulations, nor is there any indication that
Congress intended for the EPA to have an oversight role for
modifications to certifications. Another commenter suggested that the
EPA could follow the process described in the proposed rule section
121.10 to meet its obligation under section 401(a)(2) regarding
neighboring States with respect to a modification to a section 401
certification.
    The EPA agrees with commenters that there is no statutory basis in
section 401 for the Agency to have an oversight role for modifications
to certifications. The Agency disagrees with the commenter who asserted
that it would be appropriate to expand the EPA's authority provided
under section 401(a)(2) to grant the Agency a more formal oversight
role. The EPA's role under section 401(a)(2) is plainly limited to (1)
notifying a State or authorized Tribe if the Agency makes a
discretionary determination that a discharge from a certified project
may affect the waters of that jurisdiction, and (2) subsequently
providing recommendations to the federal agency if the affected
neighboring jurisdiction

requests a hearing. See section III.I of this notice.
b. Modifications by Certifying Authorities
    In light of the statute's one-year time limit for a certifying
authority to act on a section 401 certification, the EPA solicited
comment on whether and to what extent States or Tribes should be able
to modify a previously issued certification, either before or after the
reasonable period of time expires, before or after the license or
permit is issued, or to correct an aspect of a certification or its
conditions if remanded or found unlawful by a federal or State court or
administrative body.
    Certain commenters were in favor of retaining the ability for
States and Tribes to modify certifications. One commenter asserted that
other CWA sections, such as sections 402 and 404, also do not
explicitly allow for modifications, yet the EPA and the Corps assume
authority to modify permits issued under those sections as long as they
follow their own processes to do so. However, many commenters suggested
that certain parameters should be applied to modifications, such as
restrictions on ``unilateral'' modifications and ``reopener'' clauses.
The EPA disagrees with commenters who argued in favor of allowing
modifications to certifications. As described throughout this final
rule preamble, section 401 certifications are unique in that they are
not subject to ongoing enforcement by certifying authorities or
oversight by the EPA, as section 402 and 404 permits may be. Indeed,
once a certification is issued, the conditions therein are incorporated
into a different document, a federal license or permit, for
implementation and enforcement. Allowing certifications to be modified
after issuance could create significant confusion and regulatory
uncertainty within those federal license and permit programs.
    Some commenters argued that ``unilateral'' modifications by the
certifying authority should not be allowed, whereas other commenters
favored a broad ability for States and Tribes to modify certifications.
The commenters who disfavored unilateral modifications argued that it
would effectively void the maximum reasonable period of time of one
year and would lead to economic uncertainty for the project and
possibly lengthy and expensive litigation. One commenter stated that
unilateral modifications should be allowed in certain circumstances,
such as before the reasonable period of time has expired.
    Some commenters encouraged the EPA to provide clarity on the
process by which a certification can be modified and the timeframe for
that modification, so as to help avoid future regulatory uncertainty
and litigation. A few commenters asked the EPA to clarify the process
by which federal agencies must respond to any requested revisions to
certifications beyond the reasonable period of time. As discussed in
more detail below, the final rule does not authorize certifications to
be modified after they have been issued. Section 401 does not grant
States the authority either to unilaterally modify a certification
after it is issued or to include ``reopener'' clauses in a
certification. However, other established procedures are available to
address situations that necessitate a modification after a
certification has been issued.
    Some commenters distinguished between modifications made within the
reasonable period of time and those outside of that timeframe. A few of
these commenters suggested various scenarios in which a modification
should be allowed, including scenarios in which a court remands a
certification or condition, the project proponent wants to correct an
error, or the discharge in the federal license or permit changes.
Another commenter asserted that State modification of certification
conditions outside of the one-year review period should not
automatically become part of the license or permit, citing Airport
Communities Coalition v. Graves, 280 F. Supp. 2d 1207, 1217 (W.D. Wash.
2003).
    The EPA has determined that section 401 does not provide authority
for a certifying authority to unilaterally modify a certification,
either through certification conditions that purport to authorize the
certifying authority to reopen the certification in the future or
through any other mechanism. The Agency also notes that the ability to
unilaterally modify a certification after issuance is unnecessary,
because circumstances that may necessitate modifications often will be
linked to other actions that have established procedures. For example,
if a federal license or permit is modified or the underlying project is
changed such that the federal license or permit requires modification,
it may trigger the requirement for a new certification, depending on
the federal agency's procedures. See, e.g., 18 CFR 5.23 (requiring
project proponents to submit a new certification request when the
project proponent submits an application to FERC to amend an existing
hydropower license or to amend a pending application for a hydropower
license). Similarly, if a court vacates or remands a certification or
condition thereof, the certifying authority may need to modify the
certification, depending on the specifics of the court's decision, and
the federal agency may need to modify the license or permit
accordingly. To reduce uncertainty, federal agencies may establish
procedures in their regulations to clarify how modifications would be
handled in these specific scenarios. For example, the EPA's existing
regulations regarding certification in the NPDES program, located at 40
CFR 124.55(b), provide procedures for modification in certain
circumstances (``If there is a change in the State law or regulation
upon which a certification is based, or if a court of competent
jurisdiction or appropriate State board or agency stays, vacates, or
remands a certification, a State which has issued a certification under
[section] 124.53 may issue a modified certification or notice of waiver
and forward it to EPA.'').
    Additionally, the need to unilaterally modify a certification to
address a change in the proposed project should be unnecessary under
this final rule. As discussed in section III.C of this notice, if
certain elements of the proposed project change materially after a
certification is issued, it may be reasonable for the project proponent
to submit a new certification request. The clock stops after a
certifying authority issues a certification decision, and therefore the
Agency disagrees with the suggestion that modifications should be
allowed to occur after that point but within the reasonable period of
time.
    The EPA requested comment on whether EPA should expressly prohibit
certification conditions that may create regulatory uncertainty,
including conditions that extend the effective date of a certification
beyond the reasonable period of time and conditions that authorize
certifications to be reopened. Some commenters opposed certification
conditions that enable a State or Tribe to ``reopen'' or revisit the
certification at a specific time or upon certain triggering events. A
few commenters argued that reopeners could effectively eliminate the
one-year time limit in the statute and transform section 401's grant of
State authority into an ongoing regulatory role. Another commenter,
stating that reopener clauses allowing a State or Tribe to unilaterally
modify a certification are contrary to law, noted that a regulation
prohibiting such clauses would be consistent with judicial precedent,
citing Triska v. Dept of Health & Envtl. Control, 355 SE2d 531, 533-34
(S.C. 1987). Other commenters maintained that States and Tribes should
retain their authority to

modify certifications whenever circumstances warrant, and that no
federal agency should have authority over conditions issued by a State
or Tribe or future modifications to those conditions. A few commenters
noted that the broad authority granted in section 401(d) of the CWA
also provides authority for a State or Tribe to include a ``reopener''
clause to ensure that their waters are protected, especially given the
long timeframes for some projects.
    The EPA has considered these comments and concludes that reopener
clauses are inconsistent with section 401. The final rule does not
include an explicit prohibition on reopener clauses because the EPA has
concluded that such conditions are already proscribed by section
121.6(e) of the final rule. By including a reopener condition in a
certification, the certifying authority intends to take an action to
reconsider or otherwise modify a previously issued certification at
some unknown point in the future. As described in section III.F above,
the reasonable period of time to act on a certification request begins
when a certifying authority receives the request, and ends when the
certifying authority takes action to grant, grant with conditions,
deny, or waive. The reasonable period of time does not continue to run
after a certification decision is issued. A reopener condition, if
allowed under this final rule, would effectively extend the established
reasonable period of time into the future, potentially indefinitely.
The Agency acknowledges that projects may change after a certification
is issued; but, as discussed above, there are other procedures in this
final rule and in other federal agency regulations that can address
project changes that would necessitate a new or modified certification
or federal license or permit. Reopener conditions are not authorized
under this final rule because such actions by the certifying authority
would modify the reasonable period of time, contrary to section
121.6(e) of the final rule.
    As discussed above, section 401 does not provide certifying
authorities with the authority to modify certifications after they are
issued. The Agency disagrees with commenters who assert that section
401(d) provides certifying authorities with authority to include
reopener clauses as a condition on a federal license or permit. As a
general matter, administrative agencies possess the inherent authority
to reconsider prior decisions; \67\ however, section 401 provides
express statutory language (e.g., specifying the time period in which a
certifying authority must act on a certification request or waive its
right to act; requiring certification conditions to be incorporated
into a separate federal permit) that displaces the general principle,
and thus Congress has precluded the certifying authority from
reconsidering or modifying a certification. For the reasons explained
above, unilateral modifications, including certification conditions
that would reopen the certification in the future, are not authorized
in section 401.
---------------------------------------------------------------------------

    \67\ See e.g., Motor Vehicle Mfrs. Ass'n v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 42 (1983); FCC v. Fox Television
Studios, 556 U.S. 502, 514-15 (2009); Belville Mining Co. v. United
States, 999 F.2d 989, 997 (6th Cir. 1993).
---------------------------------------------------------------------------

    The Agency also disagrees with commenters that assert that the
federal agency should not have authority over certification conditions
or modifications. As discussed in section III.G.2.b of this notice,
consistent with section 401(d), certification conditions that meet the
requirements of final rule section 121.7(d) shall be incorporated into
the federal license or permit. Accordingly, the federal agency is the
appropriate party to address any modifications to the license or
permit, including those certification conditions incorporated into the
license or permit.

M. General Licenses and Permits

1. What is the Agency finalizing?
    In response to comments received, the Agency is finalizing several
provisions specific for certifications for the issuance of general
licenses or permits. Section 121.5(c) of the final rule specifically
defines elements of a ``certification request'' that must be submitted
for the issuance of general licenses or permits. The Agency is also
including additional provisions in section 121.7 of the final rule to
address certification conditions and denials for general licenses and
permits.
    This final rule preamble also reaffirms that a federal agency
seeking certification for a general license or permit must comply with
all provisions of this final rule, including the pre-filing meeting
request requirement in section 121.4. This final rule preamble also
clarifies a federal agency's obligation under section 401(a)(2) to
notify the EPA when it receives certification for a general license or
permit.
2. Summary of Final Rule Rationale and Public Comment
    The majority of certifications are issued for projects that require
an individual federal license or permit. However, certifications are
also required prior to the issuance or establishment of a general
license or permit. General licenses and permits are vital to the
effective operation of several federal programs such as the CWA section
402 and section 404 programs, producing efficiencies that save time and
money for project proponents and regulators. General licenses and
permits provide streamlined procedures for project proponents by
authorizing categories of discharges or simplified review procedures
when the discharges comply with specified requirements. Federal
licensing and permitting agencies must obtain a section 401
certification when issuing general licenses or permits, and the final
rule accounts for the potential variation of future projects or
activities that may be covered under the general license or permit. The
final rule provides slightly modified requirements to account for
differences between individual and general licenses and permits in the
water quality certification context.
a. Certification Request for a General License or Permit
    The Agency took comment on whether federal agencies seeking
certification for a general license or permit should be subject to the
same or different ``certification request'' submittal requirements as
other project proponents seeking certification for an individual
license or permit. A few commenters stated that federal agencies should
follow the same procedures as other project proponents for submitting
certification requests. Another commenter encouraged the EPA to revise
the elements of a certification request to provide flexibility for
general licenses or permits, because the type, means, and methods used
to monitor the future discharges that may be authorized in the future
may not be known. The final rule includes specific requirements for
certification requests for the issuance of general licenses or permits.
    Where a federal agency is seeking to issue a general license or
permit, the EPA expects the federal agency to follow the requirements
of section 121.5(c) of the final rule. Section 121.5(c) of the final
rule includes a list of documents and information required for
``certification request for issuance of a general license or permit,''
similar to the list that was included in the proposed rule as an
alternative approach:

    1. Identify the project proponent(s) and a point of contact;
    2. identify the proposed categories of activities to be
authorized by the general license or permit for which certification
is requested;

    3. include the draft or proposed general license or permit;
    4. estimate the number of discharges expected to be authorized
by the proposed general license or permit each year;
    5. include documentation that a pre-filing meeting request was
submitted to the certifying authority at least 30 days prior to
submitting the certification request;
    6. contain the following statement: `The project proponent
hereby certifies that all information contained herein is true,
accurate, and complete to the best of my knowledge and belief'; and
    7. contain the following statement: `The project proponent
hereby requests that the certifying authority review and take action
on this CWA 401 certification request within the applicable
reasonable period of time.'

    The list in section 121.5(c) is similar to the list in section
121.5(b) of the final rule, including the two new requirements (a
statement that all information contained in the request is true,
accurate, and complete to the best of the project proponent's
knowledge, and documentation that a pre-filing meeting request was
submitted to the certifying authority at least 30 days prior to
submitting the certification request), but with some differences to
account for the distinctions between issuing a general license or
permit and issuing a license or permit for a specific project, with
respect to the available information at the time of certification. The
Agency has made these changes regarding how general licenses and
permits are handled under this final rule to improve clarity and for
consistent administration of section 401 for all general licenses and
permits.
b. Information Requirements for General License or Permit Certification
Conditions and Denials
    Consistent with commenters and other federal agency concerns
regarding the need to account for the differences between individual
and general license and permits, the final rule contains additional
language in sections 121.7(d) and 121.7(e) to ensure that the rule can
be consistently and appropriately applied to certifications issued for
the issuance of general licenses and permits. Section 121.7(d)(1) of
the final rule provides the information requirements for certification
conditions that apply when a project proponent has requested
certification for an individual license or permit that may result in a
specific discharge or set of discharges into waters of the United
States. See section III.C of this notice. The final rule includes a new
section 121.7(d)(2), which provides slightly different information
requirements for certification conditions for issuance of general
licenses and permits. Certifications for issuance of general permits
and licenses must include the information requirements in section
121.7(d)(2) of the final rule.
    For each certification condition on issuance of a general license
or permit, section 121.7(d)(2) of the final rule requires:
    (i) A statement explaining why the condition is necessary to assure
that any discharge authorized under the general license or permit will
comply with water quality requirements; and
    (ii) A citation to federal, state, or tribal law that authorizes
the condition.
    Similarly, section 121.7(e)(1) of the final rule provides the
information requirements for certification denials that apply when a
project proponent has requested certification for an individual license
or permit that may result in a specific discharge or set of discharges
into waters of the United States. See section III.G.2.c of this notice.
The final rule also includes a new section 121.7(e)(2), which provides
slightly different information requirements for denials for general
licenses and permits. For each certification denial for issuance of a
general license or permit, section 121.7(e)(2) of the final rule
requires:

    (i) The specific water quality requirements with which
discharges that could be authorized by the general license or permit
will not comply;
    (ii) A statement explaining why discharges that could be
authorized by the general license or permit will not comply with the
identified water quality requirements; and
    (iii) If the denial is due to insufficient information, the
denial must describe the types of water quality data or information,
if any, that would be needed to assure that the range of discharges
from potential projects will comply with water quality requirements.

    Although these are both new provisions in the final rule, the
substance of these information requirements is very similar to the
information requirements for certification conditions and denials for
individual licenses and permits that were included in the proposed
rule. The EPA made only slight changes to these proposed provisions to
facilitate their application in the general licensing and permitting
context. Certification denials for a general license or permit must
contain the information in section 121.7(e)(2) of the final rule.
c. Other Provisions of the Final Rule Also Apply to Certifications for
General Licenses or Permits
    As mentioned in sections III.B and III.I of this notice, the EPA
expects that all of the procedural and substantive requirements in this
final rule will apply to entities seeking certification for a general
license or permit. As discussed in section III.I of this notice,
section 401(a)(2) provides a mechanism for the EPA to notify a State or
an authorized Tribe where the EPA has determined that the discharge
from a certified project may affect the quality of that State's or
Tribe's waters. The Act requires federal agencies to notify the EPA of
certifications and associated federal licensing or permitting
applications. 33 U.S.C. 1341(a)(2). This statutory obligation extends
to any circumstance where a federal agency receives a certification,
including where the federal agency receives certification for issuance
of a general license or permit.
    The EPA is finalizing a pre-filing meeting requirement that
requires all project proponents, including federal agencies when they
seek certification for general licenses or permits, to request a
meeting with a certifying authority at least 30 days prior to
submitting a certification request, as discussed in section III.B of
this notice.

IV. Economic Analysis

    Pursuant to Executive Orders 12866 and 13563, the Agency conducted
an economic analysis to better understand the potential effects of this
final rule on certifying authorities and project proponents. While the
economic analysis is informative in the rulemaking context, the EPA is
not relying on the analysis as a basis for this final rule. See, e.g.,
Nat'l. Assn. of Homebuilders v. EPA, 682 F.3d 1032, 1039-40 (D.C. Cir.
2012). The analysis is contained and described more fully in the
document Economic Analysis for the Clean Water Act Section 401
Certification Rule (``the Economic Analysis''). A copy of this document
is available in the docket for this action.
    Section 401 certification decisions have varying effects on
certifying authorities and project proponents. The Agency has limited
data regarding the number of certification requests submitted and the
outcome of those certifications. To make the best use of limited
information to assess the potential impacts of this final rule on
project proponents and certifying authorities, the Economic Analysis
provides a qualitative analysis of the section 401 certification
process under the 1971 certification regulations and under the final
rule. In particular, the Economic Analysis focuses on the revisions to
the time period for review, the scope of review, and the pre-filing
meeting request requirement.
    This final rule will help certifying authorities, federal agencies,
and project

proponents understand what is required and expected during the section
401 certification process, thereby increasing transparency and reducing
regulatory uncertainty. The EPA concludes that improved clarity
concerning the time period for review and the scope of review may make
the certification process more efficient for project proponents and
certifying authorities.

V. Statutory and Executive Order Reviews

    Additional information about these statutes and Executive Orders
can be found at https://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. In addition, the Agency prepared an analysis of
potential costs and benefits associated with this action. This analysis
is contained in the Economic Analysis, which is available in the docket
and is briefly summarized in Section IV of this notice. While economic
analyses are informative in the rulemaking context, the Agency is not
relying on the economic analysis performed pursuant to Executive Orders
12866 and 13563 and related procedural requirements as a basis for this
final rule.

B. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs

    Pursuant to Executive Order 13771 (82 FR 9339, February 3, 2017),
this final rule is a deregulatory action. See the Economic Analysis for
further discussion about the potential effects of this rule.

C. Paperwork Reduction Act

    The information collection activities in this final rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act (PRA). The Information Collection
Request (ICR) document that the EPA prepared has been assigned EPA ICR
number 2603.05 (OMB Control No. 2040-0295). You can find a copy of the
ICR in the docket for this rule, and it is briefly summarized here. The
information collection requirements are not enforceable until they are
approved by OMB.
    The information collected under this ICR is used by certifying
authorities for reviewing proposed projects for potential water quality
impacts from discharges from an activity that requires a federal
license or permit, and by the EPA to evaluate potential effects on
downstream or neighboring jurisdictions. Except for when the EPA is the
certifying authority, information collected under section 401 is not
directly collected by or managed by the EPA. The primary collection of
information is performed by States and Tribes acting as certifying
authorities. Information collected directly by the EPA under section
401 in support of the section 402 program is already captured under
existing EPA ICR No. 0229.22 (OMB Control No. 2040-0295).
    The final rule clarifies the information that project proponents
must provide to request a section 401 certification and introduces a
pre-filing meeting request requirement for all project proponents. The
final rule also removes information requirements related to
certification modifications and section 401(a)(2) procedures for
neighboring jurisdictions, and provides additional transparency by
identifying, unambiguously, information necessary to support
certification actions. The EPA expects this final rule will provide
greater clarity on section 401 requirements, reduce the overall
preparation time spent by a project proponent on certification
requests, and reduce the review time for certifying authorities.
    In the interest of transparency and public understanding, the EPA
has provided here relevant portions of the burden assessment of the
final rule. More information about the burden assessment can be found
in the supporting statement for the ICR.
    Respondents/affected entities: Project proponents, State and Tribal
reviewers (certifying authorities).
    Respondent's obligation to respond: required to obtain 401
certification (33 U.S.C. 1341(a)(1)).
    Estimated number of respondents: 97,119 per year.
    Frequency of response: one per federal application.
    Total estimated burden: 931,000 hours (per year). Burden is defined
at 5 CFR 1320.3(b).
    Total estimated cost: $58 Million (per year), includes $8 Million
annualized capital or operation & maintenance costs.
    The final rule results in an estimated marginal burden decrease of
136,000 hours. This marginal decrease is associated with the reduction
of information requirements in the final rule and a projected decrease
in certifying authority review times associated with the clearer scope
of certification in section 121.3 of the final rule. A full description
of the analysis is available in the supporting statement accompanying
this information collection request.
    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 the
EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB
approves this ICR, the Agency will announce that approval in the
Federal Register and publish a technical amendment to 40 CFR part 9 to
display the OMB control number for the approved information collection
activities contained in this final rule.

D. Regulatory Flexibility Act

    I certify that this action will not have a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act (RFA). In making this determination, the impact of
concern is any significant adverse economic impact on small entities.
An agency may certify that a rule will not have a significant economic
impact on a substantial number of small entities if the rule relieves
regulatory burden, has no net burden, or otherwise has a positive
economic effect on the small entities subject to the rule.
    Under section 401, a federal agency may not issue a license or
permit to conduct any activity that may result in any discharge into
waters of the United States, unless the State or authorized Tribe where
the discharge would originate (or the EPA, in certain circumstances
described above) either (1) issues a section 401 water quality
certification finding compliance with applicable water quality
requirements or (2) waives certification. Under section 401 and this
final rule, the applicant for the federal license or permit (the
project proponent) is required to request and obtain a water quality
certification. This action provides project proponents with greater
clarity and regulatory certainty on the substantive and procedural
requirements for obtaining a water quality certification. This action
also provides procedural clarity to certifying authorities and Federal
licensing and permitting agencies. The Agency anticipates this action
will result in faster, more efficient and more transparent decision-
making by certifying authorities. As discussed in the Economic Analysis
accompanying this final rule, the Agency concludes

that improved clarity concerning the scope and reasonable period of
time for certification review may make the certification process more
efficient for project proponents, including small entities, and does
not expect the cost of the rule to result in a significant economic
impact on a substantial number of small entities.

E. Unfunded Mandates Reform Act

    This action does not contain an unfunded mandate of $100 million or
more as described in the Unfunded Mandates Reform Act of 1995 (UMRA), 2
U.S.C. 1531-1538, and does not contain any regulatory requirements that
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 Section IV of this notice
for further discussion on the Economic Analysis.

F. Executive Order 13132: Federalism

    Executive Order 13132, titled ``Federalism'' (64 FR 43255, August
10, 1999), requires federal agencies to develop an accountable process
to ensure ``meaningful and timely input by state and local officials in
the development of regulatory policies that have federalism
implications.'' The Executive Order defines ``policies that have
federalism implications'' to include regulations that have
``substantial direct effects on the states, on the relationship between
the national government and the states, or on the distribution of power
and responsibilities among the various levels of government.'' The
Agency concludes that the final rule may have federalism implications
because it may impact how some States have historically implemented
water quality certification programs. This final rule makes the EPA's
CWA section 401 regulation consistent with the statutory language, and
acknowledges that States may modify their practices to be consistent
with this regulation. The EPA provides the following federalism summary
impact statement.
    The Agency consulted with State and local government officials, or
their representative national organizations, during the development of
this action as required under the terms of Executive Order 13132 to
permit them to have meaningful and timely input into the proposed
rule's development. On April 24, 2019, the Agency initiated a 30-day
Federalism consultation period prior to proposing this rule to allow
for meaningful input from State and local governments. The kickoff
Federalism consultation meeting occurred on April 23, 2019; attendees
included representatives of intergovernmental associations and other
associations representing State and local governments. Organizations in
attendance included: National Governors Association, U.S. Conference of
Mayors, National Conference of State Legislatures, the Environmental
Council of the States, National League of Cities, Council of State
Governments, National Association of Counties, National Association of
Towns and Townships, Association of Clean Water Administrators, Western
States Water Council, Conference of Western Attorneys General,
Association of State Wetland Managers, and Western Governors'
Association. Additionally, one in-person meeting was held with the
National Governors Association on May 7, 2019. The Agency also held an
informational webinar for States and Tribes on May 8, 2019. At these
webinars and meetings, the EPA provided a presentation and sought input
on areas of section 401 that may require clarification, including
timeframe, scope of certification review, and coordination among
project proponents, certifying authorities, and federal licensing or
permitting agencies. See section II.C of this notice for more
information on outreach with States prior to Federalism consultation.
    Letters and webinar attendee feedback received by the Agency before
and during Federalism consultation may be found on the pre-proposal
recommendations docket (Docket ID No. EPA-HQ-OW-2018-0855, available at
https://www.regulations.gov/docket?D=EPA-HQ-OW-2018-0855). These
webinars, meetings, and letters provided a wide and diverse range of
interests, positions, and recommendations to the Agency. Following
publication of the proposed rule, the Agency held two additional in-
person meetings with State representatives to answer clarifying
questions about the proposal and to discuss implementation
considerations. The Agency has prepared a report summarizing its
consultation and additional outreach to state and local governments and
the results of this outreach. A copy of the final report is available
in the docket (Docket ID No. EPA-HQ-OW-2019-0405) for this final rule.
Correspondence received from State and local governments and their
representative national associations during the public comment period
can be found in Docket ID No. EPA-HQ-OW-2019-0405, available at https://www.regulations.gov/docket?D=EPA-HQ-OW-2019-0405.
    During Federalism consultation and engagement efforts and in the
State and local government comments on the proposed rule, many States
expressed concern that the proposed rule would adversely impact State
authority and States' ability to protect state waters. Commenters
raised several concerns, including concerns about the federal agency
review role in the certification process; constraints on the
certification review process, including the scope, timeframe, and
information to start the statutory review clock; information
requirements to act on a certification request; State enforcement role
in certification; and the potential impact on existing State
regulations and law.
    The Agency acknowledges that the final rule may change how States
administer the section 401 program, but has made adjustments in the
final rule to account for many of the concerns raised by states. The
Agency has made certain changes in response to comments, including
comments from States and local governments. The final rule preserves
the robust State role in the certification process in a manner
consistent with the CWA. As discussed in section III.G of this notice,
the final rule does not provide federal agencies with a role in
substantively reviewing State certification decisions. Additionally,
the final rule expands the pre-filing meeting requirement to all
project proponents and allows States, in their discretion, to meet with
project proponents to discuss information needs and concerns prior to
starting the reasonable period of time. The final rule notice also
clarifies that certifying authorities may request additional
information during the reasonable period of time, and the final rule
preserves certifying authorities' ability to deny certification
requests if they have inadequate information to determine whether a
discharge complies with water quality requirements. The final rule
definition of ``water quality requirements'' no longer limits other
appropriate requirements of State law to requirements that are EPA-
approved; rather, the definition captures State or Tribal regulatory
requirements for point source discharges into waters of the United
States. The final rule also removes the requirement for certifying
authorities to provide a statement of whether and to what extent a less
stringent condition could satisfy applicable water quality
requirements.
    As required by Section 8(a) of Executive Order 13132, the EPA
included a certification from its Federalism Official stating that the
EPA

had met the Executive Order's requirements in a meaningful and timely
manner. A copy of this certification is included in the official record
for this final action.

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

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, Nov. 9, 2000), requires
agencies to develop an accountable process to ensure ``meaningful and
timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This action has Tribal
implications. However, it will neither impose substantial direct
compliance costs on federally recognized Tribal governments nor preempt
Tribal law.
    During Tribal consultation and engagement efforts and in Tribal
comments on the proposed rule, many Tribes expressed concern that the
proposed rule would adversely impact Tribal waters. The final rule may
affect how Tribes with treatment in a similar manner as a state (TAS)
for CWA section 401 administer their section 401 program, but will not
have an administrative impact on Tribes for whom the EPA certifies on
their behalf. The Agency has made changes in the final rule in response
to comments, including comments from Tribes. The final rule maintains
the ability for Tribes to provide input in the certification process
and preserves the robust Tribal role in the certification process in a
manner consistent with the CWA.
    The Agency consulted with Tribal officials at the beginning of rule
development to permit meaningful and timely input, consistent with the
EPA Policy on Consultation and Coordination with Indian Tribes. The EPA
initiated a Tribal consultation and coordination process before
proposing this rule by sending a ``Notification of Consultation and
Coordination'' letter dated April 22, 2019, to all 573 Federally
recognized Tribes. The letter invited Tribal leaders and designated
consultation representatives to participate in the Tribal consultation
and coordination process. The Agency held two identical webinars on
this action for Tribal representatives on May 7 and May 15, 2019. The
Agency also presented on this action at the Region 9 Regional Tribal
Operations Committee Spring meeting on May 22, 2019. Additionally,
Tribes were invited to two webinars for States, Tribes, and local
governments on April 17, 2019 and May 8, 2019. Tribes and Tribal
organizations sent 15 pre-proposal recommendation letters to the Agency
as part of the consultation process. All Tribal and Tribal organization
letters and webinar feedback may be found on the pre-proposal
recommendations docket (Docket ID No. EPA-HQ-OW-2018-0855). The Agency
met with four Tribes at the staff-level.
    The Agency continued engagement with Tribes after the end of the
formal consultation period. Following the publication of the proposed
rule, the Agency held two in-person meetings with Tribal
representatives to answer clarifying questions about the proposal, and
to discuss implementation considerations and Tribal interest in the
section 401 water quality certification process. In addition, the
Agency continued to meet with individual Tribes requesting consultation
or engagement following publication of the proposed rule, holding
staff-level meetings with 11 Tribes and leader-to-leader level meetings
with two Tribes post-proposal. In total, the Agency met with 14
individual Tribes requesting consultation, holding leader-to-leader
level consultation meetings with two individual Tribes and staff-level
meetings with 13 individual Tribes (the Agency met with some Tribes
more than once). The Agency has prepared a report summarizing the
consultation and further engagement with Tribal nations. This report,
Summary Report of Tribal Consultation and Engagement for the Clean
Water Act Section 401 Certification Rule (Docket ID No. EPA-HQ-OW-2019-
0405), is available in the docket for this final rule.
    As required by section 7(a), the EPA's Tribal Consultation Official
has certified that the requirements of the executive order have been
met in a meaningful and timely manner. A copy of the certification is
included in the docket for this action.

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

    This action is not subject to Executive Order 13045 (62 FR 19885,
April 23, 1997) because the environmental health or safety risks
addressed by this action do not present a disproportionate risk to
children.

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

    This action is not a ``significant energy action'' as defined in
Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not
likely to have a significant adverse effect on the supply,
distribution, or use of energy.

J. National Technology Transfer and Advancement Act

    This action is not subject to the National Technology Transfer and
Advancement Act of 1995 because the rule does not involve technical
standards.

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

    This action is not subject to Executive Order 12898 (59 FR 7629,
February 11, 1994) because there is no significant evidence of
disproportionately high and adverse human health or environmental
effects on minority populations, low income populations, and/or
indigenous populations, as specified in Executive Order 12898.

L. Congressional Review Act

    This action is subject to the CRA, and the EPA will submit a rule
report to each House of the Congress and to the Comptroller General of
the United States. This action is not a ``major rule'' as defined by 5
U.S.C. 804(2).

List of Subjects in 40 CFR Part 121

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

Andrew Wheeler,
Administrator.

    For the reasons set forth in the preamble, EPA is revising 40 CFR
part 121 as follows:

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

Sec.
Subpart A--General
121.1 Definitions.
Subpart B--Certification Procedures
121.2 When certification is required.
121.3 Scope of certification.
121.4 Pre-filing meeting request.
121.5 Certification request.
121.6 Establishing the reasonable period of time.
121.7 Action on a certification request.
121.8 Effect of denial of certification.
121.9 Waiver.
121.10 Incorporation of certification conditions into the license or
permit.
121.11 Enforcement and compliance of certification conditions.
Subpart C--Other Jurisdictions
121.12 Determination of effects on neighboring jurisdictions.

Subpart D--Certification by the Administrator
121.13 When the Administrator certifies.
121.14 Request for additional information.
121.15 Notice and hearing.
Subpart E--Consultations
121.16 Review and advice.

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

Subpart A--General

Sec.  121.1   Definitions.

    (a) Administrator means the Administrator of the Environmental
Protection Agency or an authorized representative.
    (b) Certification means a water quality certification issued in
accordance with Clean Water Act section 401 and this part.
    (c) Certification request means a written, signed, and dated
communication that satisfies the requirements of Sec.  121.5(b) or (c).
    (d) Certified project means a proposed project that has received a
certification or for which the certification requirement has been
waived.
    (e) Certifying authority means the agency responsible for
certifying compliance with applicable water quality requirements in
accordance with Clean Water Act section 401.
    (f) Discharge for purposes of this part means a discharge from a
point source into a water of the United States.
    (g) 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.
    (h) License or permit means any license or permit granted by an
agency of the Federal Government to conduct any activity which may
result in a discharge.
    (i) Neighboring jurisdiction means any other state or authorized
tribe whose water quality the Administrator determines may be affected
by a discharge for which a certification is granted pursuant to Clean
Water Act section 401 and this part.
    (j) Project proponent means the applicant for a license or permit
or the entity seeking certification.
    (k) Proposed project means the activity or facility for which the
project proponent has applied for a license or permit.
    (l) Reasonable period of time means the time period during which a
certifying authority may act on a certification request, established in
accordance with Sec.  121.6 of this part.
    (m) Receipt means the date that a certification request is
documented as received by a certifying authority in accordance with
applicable submission procedures.
    (n) Water quality requirements means applicable provisions of
Sec. Sec.  301, 302, 303, 306, and 307 of the Clean Water Act, and
state or tribal regulatory requirements for point source discharges
into waters of the United States.

Subpart B--Certification Procedures

Sec.  121.2   When certification is required.

    Certification is required for any license or permit that authorizes
an activity that may result in a discharge.

Sec.  121.3   Scope of certification.

    The scope of a Clean Water Act section 401 certification is limited
to assuring that a discharge from a Federally licensed or permitted
activity will comply with water quality requirements.

Sec.  121.4   Pre-filing meeting request.

    (a) At least 30 days prior to submitting a certification request,
the project proponent shall request a pre-filing meeting with the
certifying authority.
    (b) The certifying authority is not obligated to grant or respond
to the pre-filing meeting request.
    (c) If the certifying authority grants the pre-filing meeting
request, the project proponent and the certifying authority are
encouraged to discuss the nature of the proposed project and potential
water quality effects. The project proponent is encouraged to provide a
list of other required state, interstate, tribal, territorial, and
federal authorizations and to describe the anticipated timeline for
construction and operation.
    (d) After receiving the pre-filing meeting request, the certifying
authority is encouraged to contact the Federal agency and to identify
points of contact to facilitate information sharing between the
certifying authority and Federal agency throughout the certification
process.

Sec.  121.5   Certification request.

    (a) A certification request shall be submitted to the certifying
authority and to the Federal agency concurrently.
    (b) A certification request for an individual license or permit
shall:
    (1) Identify the project proponent(s) and a point of contact;
    (2) Identify the proposed project;
    (3) Identify the applicable federal license or permit;
    (4) Identify the location and nature of any potential discharge
that may result from the proposed project and the location of receiving
waters;
    (5) Include a description of any methods and means proposed to
monitor the discharge and the equipment or measures planned to treat,
control, or manage the discharge;
    (6) Include a list of all other federal, interstate, tribal, state,
territorial, or local agency authorizations required for the proposed
project, including all approvals or denials already received;
    (7) Include documentation that a pre-filing meeting request was
submitted to the certifying authority at least 30 days prior to
submitting the certification request;
    (8) Contain the following statement: `The project proponent hereby
certifies that all information contained herein is true, accurate, and
complete to the best of my knowledge and belief'; and
    (9) Contain the following statement: `The project proponent hereby
requests that the certifying authority review and take action on this
CWA 401 certification request within the applicable reasonable period
of time.'
    (c) A certification request for issuance of a general license or
permit shall:
    (1) Identify the project proponent(s) and a point of contact;
    (2) Identify the proposed categories of activities to be authorized
by the general license or permit for which certification is requested;
    (3) Include the draft or proposed general license or permit;
    (4) Estimate the number of discharges expected to be authorized by
the proposed general license or permit each year;
    (5) Include documentation that a pre-filing meeting request was
submitted to the certifying authority at least 30 days prior to
submitting the certification request;
    (6) Contain the following statement: `The project proponent hereby
certifies that all information contained herein is true, accurate, and
complete to the best of my knowledge and belief '; and
    (7) Contain the following statement: `The project proponent hereby
requests that the certifying authority review and take action on this
CWA 401 certification request within the applicable reasonable period
of time.'

Sec.  121.6   Establishing the reasonable period of time.

    (a) The Federal agency shall establish the reasonable period of
time either categorically or on a case-by-case basis. In either event,
the reasonable period of time shall not exceed one year from receipt.
    (b) Within 15 days of receiving notice of the certification request
from the project proponent, the Federal agency shall provide, in
writing, the following information to the certifying authority:

    (1) The date of receipt;
    (2) The applicable reasonable period of time to act on the
certification request; and
    (3) The date upon which waiver will occur if the certifying
authority fails or refuses to act on the certification request.
    (c) In establishing the reasonable period of time, the Federal
agency shall consider:
    (1) The complexity of the proposed project;
    (2) The nature of any potential discharge; and
    (3) The potential need for additional study or evaluation of water
quality effects from the discharge.
    (d) The Federal agency may extend the reasonable period of time at
the request of a certifying authority or a project proponent, but in no
case shall the reasonable period of time exceed one year from receipt.
    (1) Any request by a certifying authority or project proponent to
the Federal agency to extend the reasonable period of time shall be in
writing.
    (2) If the Federal agency agrees to extend the reasonable period of
time, the Federal agency shall notify the certifying authority and
project proponent in writing.
    (e) The certifying authority is not authorized to request the
project proponent to withdraw a certification request and is not
authorized to take any action to extend the reasonable period of time
other than specified in Sec.  121.6(d).

Sec.  121.7   Action on a certification request.

    (a) Any action by the certifying authority to grant, grant with
conditions, or deny a certification request must be within the scope of
certification, must be completed within the reasonable period of time,
and must otherwise be in accordance with section 401 of the Clean Water
Act. Alternatively, a certifying authority may expressly waive
certification.
    (b) If the certifying authority determines that a discharge from a
proposed project will comply with water quality requirements, it may
issue or waive certification. If the certifying authority cannot
certify that the discharge from a proposed project will comply with
water quality requirements, it may deny or waive certification.
    (c) Any grant of certification shall be in writing and shall
include a statement that the discharge from the proposed project will
comply with water quality requirements.
    (d) Any grant of certification with conditions shall be in writing
and shall for each condition include, at a minimum:
    (1) For certification conditions on an individual license or
permit,
    (i) A statement explaining why the condition is necessary to assure
that the discharge from the proposed project will comply with water
quality requirements; and
    (ii) A citation to federal, state, or tribal law that authorizes
the condition.
    (2) For certification conditions on issuance of a general license
or permit,
    (i) A statement explaining why the condition is necessary to assure
that any discharge authorized under the general license or permit will
comply with water quality requirements; and
    (ii) A citation to federal, state, or tribal law that authorizes
the condition.
    (e) Any denial of certification shall be in writing and shall
include:
    (1) For denial of certification for an individual license or
permit,
    (i) The specific water quality requirements with which the
discharge will not comply;
    (ii) A statement explaining why the discharge will not comply with
the identified water quality requirements; and
    (iii) If the denial is due to insufficient information, the denial
must describe the specific water quality data or information, if any,
that would be needed to assure that the discharge from the proposed
project will comply with water quality requirements.
    (2) For denial of certification for issuance of a general license
or permit,
    (i) The specific water quality requirements with which discharges
that could be authorized by the general license or permit will not
comply;
    (ii) A statement explaining why discharges that could be authorized
by the general license or permit will not comply with the identified
water quality requirements; and
    (iii) If the denial is due to insufficient information, the denial
must describe the types of water quality data or information, if any,
that would be needed to assure that the range of discharges from
potential projects will comply with water quality requirements.
    (f) If the certifying authority determines that no water quality
requirements are applicable to the waters receiving the discharge from
the proposed project, the certifying authority shall grant
certification.

Sec.  121.8   Effect of denial of certification.

    (a) A certification denial shall not preclude a project proponent
from submitting a new certification request, in accordance with the
substantive and procedural requirements of this part.
    (b) Where a Federal agency determines that a certifying authority's
denial satisfies the requirements of Sec.  121.7(e), the Federal agency
must provide written notice of such determination to the certifying
authority and project proponent, and the license or permit shall not be
granted.

Sec.  121.9   Waiver.

    (a) The certification requirement for a license or permit shall be
waived upon:
    (1) Written notification from the certifying authority to the
project proponent and the Federal agency that the certifying authority
expressly waives its authority to act on a certification request; or
    (2) The certifying authority's failure or refusal to act on a
certification request, including:
    (i) Failure or refusal to act on a certification request within the
reasonable period of time;
    (ii) Failure or refusal to satisfy the requirements of Sec.
121.7(c);
    (iii) Failure or refusal to satisfy the requirements of Sec.
121.7(e); or
    (iv) Failure or refusal to comply with other procedural
requirements of section 401.
    (b) A condition for a license or permit shall be waived upon the
certifying authority's failure or refusal to satisfy the requirements
of Sec.  121.7(d).
    (c) If the certifying authority fails or refuses to act, as
provided in this section, the Federal agency shall provide written
notice to the Administrator, certifying authority, and project
proponent that waiver of the certification requirement or condition has
occurred. This notice must be in writing and include the notice that
the Federal agency provided to the certifying authority pursuant to
Sec.  121.6(b).
    (d) A written notice of waiver from the Federal agency shall
satisfy the project proponent's requirement to obtain certification.
    (e) Upon issuance of a written notice of waiver, the Federal agency
may issue the license or permit.

Sec.  121.10   Incorporation of certification conditions into the
license or permit.

    (a) All certification conditions that satisfy the requirements of
Sec.  121.7(d) shall be incorporated into the license or permit.
    (b) The license or permit must clearly identify any certification
conditions.

Sec.  121.11   Enforcement of and compliance with certification
conditions.

    (a) The certifying authority, prior to the initial operation of a
certified project, shall be afforded the

opportunity to inspect the facility or activity for the purpose of
determining whether the discharge from the certified project will
violate the certification.
    (b) If the certifying authority, after an inspection pursuant to
subsection (a), determines that the discharge from the certified
project will violate the certification, the certifying authority shall
notify the project proponent and the Federal agency in writing, and
recommend remedial measures necessary to bring the certified project
into compliance with the certification.
    (c) The Federal agency shall be responsible for enforcing
certification conditions that are incorporated into a federal license
or permit.

Subpart C--Other Jurisdictions

Sec.  121.12   Determination of effects on neighboring jurisdictions.

    (a) A Federal agency shall within 5 days notify the Administrator
when it receives a license or permit application and the related
certification.
    (b) Within 30 days after the Administrator receives notice in
accordance with Sec.  121.12(a), the Administrator at his or her
discretion may determine that the discharge from the certified project
may affect water quality in a neighboring jurisdiction. In making this
determination and in accordance with applicable law, the Administrator
may request copies of the certification and the federal license or
permit application.
    (c) If the Administrator determines that the discharge from the
certified project may affect water quality in a neighboring
jurisdiction, the Administrator, within 30 days after receiving notice
in accordance with Sec.  121.12(a), shall notify that neighboring
jurisdiction, the certifying authority, the Federal agency, and the
project proponent. The federal license or permit may not be issued
pending the conclusion of the processes in this paragraph.
    (1) Notification from the Administrator shall: Be in writing, be
dated, and identify the materials provided by the Federal agency. The
notification shall inform the neighboring jurisdiction that it has 60
days to notify the Administrator and the Federal agency, 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.
    (2) Notification of objection and request for a hearing from the
neighboring jurisdiction shall: Be in writing; identify the receiving
waters it determined will be affected by the discharge; and identify
the specific water quality requirements it determines will be violated
by the certified project.
    (3) If the neighboring jurisdiction requests a hearing in
accordance with Sec.  121.12(c)(2), the Federal agency shall hold a
public hearing on the neighboring jurisdiction's objection to the
license or permit.
    (i) The Federal agency shall provide the hearing notice to the
Administrator at least 30 days before the hearing takes place.
    (ii) At the hearing, the Administrator shall submit to the Federal
agency his or her evaluation and recommendation(s) concerning the
objection.
    (iii) The Federal agency shall: Consider recommendations from the
neighboring jurisdiction and the Administrator, and any additional
evidence presented to the Federal agency at the hearing; and determine
whether additional certification conditions are necessary to assure
that the discharge from the certified project will comply with the
neighboring jurisdiction's water quality requirements.
    (iv) If additional certification conditions cannot assure that the
discharge from the certified project will comply with the neighboring
jurisdiction's water quality requirements, the Federal agency shall not
issue the license or permit.

Subpart D--Certification by the Administrator

Sec.  121.13   When the Administrator certifies.

    (a) Certification by the Administrator that the discharge from a
proposed project will comply with water quality requirements is
required where no state, tribe, or interstate agency has authority to
give such a certification.
    (b) In taking action pursuant to this paragraph, the Administrator
shall comply with the requirements of Clean Water Act section 401 and
40 CFR part 121.

Sec.  121.14   Request for additional information.

    (a) If necessary, the Administrator may request additional
information from the project proponent, provided that the initial
request is made within 30 days of receipt.
    (b) The Administrator shall request only additional information
that is within the scope of certification and is directly related to
the discharge from the proposed project and its potential effect on
receiving waters.
    (c) The Administrator shall request only information that can be
collected or generated within the reasonable period of time.
    (d) In any request for additional information, the Administrator
shall include a deadline for the project proponent to respond.
    (1) The project proponent shall comply with the deadline
established by the Administrator.
    (2) The deadline must allow sufficient time for the Administrator
to review the additional information and to act on the certification
request within the reasonable period of time.
    (e) Failure of a project proponent to timely provide the
Administrator with additional information does not extend the
reasonable period of time or prevent the Administrator from taking
action on a certification request.

Sec.  121.15   Notice and hearing.

    (a) Within 20 days of receipt, the Administrator shall provide
appropriate public notice of receipt, including to parties known to be
interested in the proposed project or in the receiving waters into
which the discharge may occur.
    (b) If the Administrator in his or her discretion determines that a
public hearing is appropriate or necessary, the EPA shall: Schedule
such hearing at an appropriate time and place; and, to the extent
practicable, give all interested and affected parties the opportunity
to present evidence or testimony in person or by other means at the
hearing.

Subpart E--Consultations

Sec.  121.16   Review and advice.

    The Administrator may, and upon request shall, provide Federal
agencies, certifying authorities, and project proponents with relevant
information and assistance regarding the meaning of, content of,
application of, and methods to comply with water quality requirements.

[FR Doc. 2020-12081 Filed 7-10-20; 8:45 am]
BILLING CODE 6560-50-P