clarify that conditions included in a water quality certification must
be within the scope of certification, as defined in this final rule.
Some commenters supported the proposed definition of condition and the
structure of the proposed rule. Other commenters stated that the EPA

unnecessarily defined ``condition'' to allow for federal review of
water quality certifications. One commenter stated that the argument
that Congress intended to allow the EPA to define the term
``condition'' under section 401 misconstrues the structure of section
401(d). This commenter stated that under the plain language of section
401(d), States impose ``limitations'' and ``monitoring requirements''
in a certification, and the certification itself then becomes ``a
condition'' on the federal permit. This commenter further stated that
there is no ambiguity in the statute, which requires that the entire
certification is incorporated into the federal license or permit.
    The Agency disagrees that it misinterpreted section 401(d) of the
statute and further disagrees with the suggestion that there is no
ambiguity in section 401(d).\58\ The EPA acknowledges that
interpretations other than what were presented in the proposed rule
could be permissible under the statute, if adequately supported by a
reasoned explanation. The EPA considered the specific interpretation
advanced by this commenter and is not adopting this interpretation in
the final rule. As a practical matter, courts that have considered
challenges to certification conditions have routinely focused their
review on those specific conditions, rather than the entire
certification itself. See PUD No. 1, 511 U.S. at 713-14; Deschutes
River All. v. Portland Gen. Elec. Co., 331 F. Supp. 3d 1187, 1192,
1199-1209 (D. Or. 2018); Airport Communities Coal. v. Graves, 280 F.
Supp. 2d 1207, 1214-17 (W.D. Wash. 2003). The EPA's final rule is
consistent with these courts' interpretations. For these reasons and to
promote clarity and regulatory certainty, the EPA is declining to adopt
this particular interpretation. However, based on other enhancements in
the final rule, the Agency has decided not to finalize a definition for
``condition.'' Together, the ``scope of certification'' and ``water
quality requirements,'' as well as the rule's language specifying the
elements required in a certification with conditions, appropriately
limit what can be properly considered a condition under the final rule,
such that defining the term is not necessary. Moreover, section
121.7(a) of the final rule specifically provides that any action to
grant a certification with conditions must be within the scope of
certification. The scope of certification extends to the scope of
conditions that are appropriate for inclusion in a certification--
specifically, that these conditions must be necessary to assure that
the discharge from a federally licensed or permitted activity will
comply with water quality requirements, as defined at section 121.1(n)
of this final rule.
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    \58\ The legislative history of the 1972 amendments does not
provide a clear answer on this issue. See H.R. Rep. No. 91-911, at
124 (1972) (``the effluent limitations and other limitations and any
monitoring requirements will become a condition on any Federal
license or permit.'' But see S. Rep. No. 92-414, at 69 (1971)
(``such a certification becomes an enforceable condition on the
Federal license or permit.'')
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F. Timeframe for Certification Analysis and Decision

1. What is the Agency finalizing?
    In this final rule, the EPA is reaffirming that CWA section 401
requires certifying authorities to act on a request for certification
within a reasonable period of time, which shall not exceed one year. By
establishing an absolute outer bound of one year following receipt of a
certification request, Congress signaled that certifying authorities
have the expertise and ability to evaluate potential water quality
impacts from even the most complex proposals within a reasonable period
of time after receipt of a request, and in all cases within one year.
Under the final rule, federal agencies determine the reasonable period
of time for a certifying authority to act on a certification request,
and the final rule establishes procedures for setting, communicating,
and (where appropriate) extending the reasonable period of time. The
EPA is also reaffirming that section 401 does not include a tolling
provision, and the period of time to act on a certification request
does not pause or stop once the certification request has been
received. The final rule provides additional clarity on what is a
``reasonable period'' and how the period of time is established.
2. Summary of Final Rule Rationale and Public Comment
a. Reasonable Period of Time
    The EPA is finalizing the proposed rule's provision that federal
licensing and permitting agencies determine the reasonable period of
time, either categorically or on a case-by-case basis. Some federal
licensing and permitting agencies have appropriately exercised their
authority to set the reasonable period of time through promulgated
regulations, including EPA, FERC and the Corps. EPA's regulations at 40
CFR 124.53(c)(3) provide that ``the State will be deemed to have waived
its right to certify unless that right is exercised within a specified
reasonable time not to exceed 60 days from the date the draft permit is
mailed to the certifying State agency. . . .'' FERC's regulations at 18
CFR 5.23(b)(2) provide that ``[a] certifying agency is deemed to have
waived the certification requirements of section 401(a)(1) of the Clean
Water Act if the certifying agency has not denied or granted
certification by one year after the date the certifying agency received
a written request for certification.'' The Corps' regulations at 33 CFR
325.2(b)(1)(ii) state that ``[a] waiver may be explicit, or will be
deemed to occur if the certifying agency fails or refuses to act on a
request for certification within sixty days after receipt of such a
request unless the district engineer determines a shorter or longer
period is reasonable for the state to act.'' The Executive Order
directed all federal agencies with licenses or permits that may trigger
section 401 certification to update their existing regulations to
promote consistency across the federal government upon completion of
this rulemaking to modernize the EPA's certification regulations.
    Public commenters provided a variety of perspectives about which
entity should set the reasonable period of time. Some commenters agreed
with the proposed rule that federal agencies are the appropriate entity
to determine the reasonable period of time, subject to the statutory
one-year limit. One commenter said the federal agencies should set the
time period to maximize efficiency, increase timeliness of decision-
making, and reduce uncertainty. Some commenters asserted that the
reasonable period of time should be set by the certifying authority,
because they believe that federal agencies lack expertise on State
environmental and administrative requirements and therefore may set a
reasonable period of time that is incompatible with those requirements
or too short for complex projects. Other commenters asserted that
federal agencies do not have authority under section 401 to determine
the reasonable period of time. One commenter asserted that while
federal agencies have the authority to adopt regulations setting a
``reasonable time'' for decisions, citing Millennium Pipeline Co. v.
Seggos, 860 F. 3d 696, 700 (D.C. Cir. 2017), the CWA did not give
federal agencies unfettered discretion to set deadlines that prevent
States and Tribes from exercising their substantive authority under
section 401, citing City of Tacoma v. FERC, 460 F.3d 53, 67 (D.C. Cir.
2006). One commenter noted that it is a conflict of interest for the
federal agency to determine the

``reasonable period of time'' where that federal agency is both the
project proponent and the agency issuing the license or permit. Other
commenters believed that the EPA should determine the reasonable period
of time in coordination with the certifying authority. Finally, some
commenters stated that a one-year reasonable period of time should be
provided without any additional federal agency discretion, which they
asserted would increase regulatory certainty and ensure sufficient time
to meet Tribal consultation obligations.
    The EPA has considered these comments and concluded that it is
reasonable and appropriate for federal agencies to set the reasonable
period of time. The Agency disagrees that certifying authorities should
set the reasonable period of time and disagrees that the EPA should set
the reasonable period of time for all certification requests. The
Agency also disagrees that certifying authorities should always have an
entire year to act on a certification request, as a year may not be
``reasonable'' in all cases, and section 401 does not guarantee one
year but rather states the action shall be taken within a reasonable
period of time which ``shall not exceed one year.'' 33 U.S.C.
1341(a)(1). The statutory language of section 401 provides that a
certification shall be waived if the certifying authority fails or
refuses to act within the reasonable period of time, but the statute is
silent on who should set the reasonable period of time. Id. The Agency
is authorized to reasonably interpret the statute (see Chevron, 467
U.S. at 843-44) and concludes that federal licensing and permitting
agencies should continue to fill this role as they have done for the
past several decades. This interpretation is consistent with judicial
and administrative precedent \59\ and with federal regulations that
were promulgated decades ago through public notice and comment
rulemaking (see, e.g., 33 CFR 325.1(b)(ii) and 18 CFR 5.23(b)(1)). From
a practical standpoint, federal licensing and permitting agencies have
decades of experience in processing applications in accordance with
their license and permit programs, and it is reasonable for the EPA to
conclude that federal agencies would have the necessary knowledge and
expertise to establish a reasonable period of time that is appropriate
considering the applicable federal procedures.
---------------------------------------------------------------------------

    \59\ Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir.
2019) (``Thus, while a full year is the absolute maximum, it does
not preclude a finding of waiver prior to the passage of a full
year. Indeed, the [EPA]--the agency charged with administering the
CWA--generally finds a state's waiver after only six months. See 40
CFR 121.16.''); Constitution Pipeline Company, LLC, 164 FERC P 61029
(F.E.R.C.), 2018 WL 3498274 (2018) (``[T]o the extent that Congress
left it to federal licensing and permitting agencies, here the
Commission, to determine the reasonable period of time for action by
a state certifying agency, bounded on the outside at one year, we
have concluded that a period up to one year is reasonable.''). See
the Economic Analysis for further discussion on the litigation
posture of the Constitution Pipeline Company, LLC case.
---------------------------------------------------------------------------

    The Agency disagrees with the commenter's suggestion that there is
a conflict of interest when the federal agency setting the reasonable
period of time is also the project proponent. This final rule requires
federal agencies to comply with the same requirements, including
requirements concerning the reasonable period of time, as other project
proponents when they require a federal permit that triggers the
certification process.
    In setting the reasonable period of time for a certification--
either on a project-by-project basis or categorically--this final rule
requires federal agencies to 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.
    With one exception discussed further below, the EPA is finalizing
these factors as proposed. These factors maintain flexibility for
federal agencies to consider project-specific or categorical
information that should be readily available. If certifying authorities
believe more time is necessary than what is established by the federal
agency, they may request an extension to the reasonable period of time
as described below.
    A federal agency may decide that it is more efficient to establish
the reasonable period of time based on common attributes of a category
of licenses, permits, or potential discharges--rather than on a case-
by-case basis. This type of categorical approach may be set out through
rulemaking or other procedures in accordance with law. Establishing
categorical reasonable periods of time may be more efficient, conserve
resources, and increase regulatory transparency.
    Some commenters supported the proposed three factors for
determining the reasonable period of time. Other commenters recommended
that a variety of additional factors be added, including but not
limited to State law requirements for public participation and
procedure; State agency workload and resource constraints; substantive
State law requirements for environmental review, type of permit, or
timing of season-dependent field studies; time to review a
certification request and any subsequent supplemental information; time
for all stakeholders to provide input on a certification request; time
for project proponents to provide additional information; other federal
program requirements; and the extent of potential impact from a
discharge. Several commenters noted that under the process set forth in
the proposed rule, the federal agency could be required to set the
reasonable period of time based on the three factors, but without
receiving the actual certification request.
    After considering these public comments, the EPA is finalizing
three factors that federal agencies must consider when setting the
reasonable period of time. In response to comments, the second factor
has been modified to require the federal agency to consider the nature
of any potential discharge. This modification clarifies that, in
establishing the reasonable period of time, federal agencies should
consider not only the potential for a discharge, but also the nature of
any potential discharge, including (as appropriate) the potential
volume, extent, or type of discharge associated with a particular
project or particular category of license or permit. Consistent with
the proposal, these factors may be used to establish a reasonable
period of time on a project-by-project basis or categorically.
    Many of the factors that commenters recommended would be subsumed
by one of the factors that the EPA is finalizing, such as project
complexity. Many of the concerns that commenters raised about the
proposal--for example, that the reasonable period of time does not
account for State public notice procedures--would also be a concern
under the status quo 1971 certification regulations. However, over the
past few decades, certifying authorities and federal agencies have
formulated joint applications, memoranda of agreement, and other
mechanisms to ensure that public participation requirements are met
within the reasonable period of time. The EPA expects certifying
authorities and federal agencies to continue these cooperative
approaches to facilitate implementation of the final rule.
    The EPA received a variety of comments regarding a potential
default reasonable period of time of six months, including conflicting
views on whether

six months is too long or too short, and whether a default reasonable
period of time would increase or decrease clarity and regulatory
certainty. Some commenters asserted that a default reasonable period of
time of six months would be too short in cases in which certifying
authorities have not received all necessary information from project
proponents, or for project proponents requiring FERC licenses. Another
commenter stated that without a default period of time, the rule would
introduce regulatory uncertainty and result in inefficiencies and
delays. The Agency has considered these comments and is finalizing the
rule as proposed with no default or minimum reasonable period of time.
The final rule thus provides federal licensing and permitting agencies
the maximum flexibility to develop appropriate procedures for their
permitting programs as they update their certification regulations in
accordance with the Executive Order.
    The final rule also clarifies the process by which federal agencies
and certifying authorities communicate regarding the reasonable period
of time. A clear understanding of the reasonable period of time will
prevent certifying authorities from inadvertently waiving their
opportunity to certify a request and will provide regulatory certainty
to the project proponent. As explained in section III.C of this notice,
the Agency has modified the proposed rule to respond to commenter
concerns and is finalizing a requirement that the project proponent
provide the certification request to the federal agency concurrently
when it submits the certification request to the certifying authority.
Under the final rule and consistent with the proposal, within 15 days
of receiving the certification request from the project proponent, the
federal agency must provide, in writing, the following information to
the certifying authority: The date of receipt, the applicable
reasonable period of time to act on the certification request, and the
date upon which waiver will occur if the certifying authority fails or
refuses to act. This provision is substantively identical to the one
proposed, with minor modifications to increase clarity.
    Public commenters expressed implementation concerns regarding the
process for federal agencies to communicate the reasonable period of
time to the certifying authority. One commenter believed that the 15-
day turnaround time may not be practical, and a few commenters
suggested that there is no accountability for federal agencies that
fail to provide the required information within 15 days. A few
commenters recommended adding a procedure for adjudicating
circumstances where the certifying authority disagrees with the
reasonable period of time set by the federal agency. One commenter
noted there is no requirement that the federal agency explain the
chosen time period, making it more difficult to challenge the federal
agency's decision or to petition for more time. One commenter said that
federal agencies should be required to communicate the reasonable
period of time even when agencies have promulgated time periods
categorically by project type in their section 401 implementing
regulations.
    The EPA has considered these comments and is finalizing as proposed
the process for federal agencies to communicate the reasonable period
of time. The EPA understands that this process may create additional
administrative burdens on federal agencies, given the number of section
401 certification requests that are submitted each year. However, the
Agency expects that the benefit of clarity and transparency that this
additional process will provide for all parties involved in a section
401 certification process will outweigh any additional burden on
federal agencies. The EPA also expects the federal agencies will
quickly routinize this process by developing and using forms,
electronic notifications, or other tools to minimize the potential
administrative burden associated with providing written notice of the
reasonable period of time. The EPA does not anticipate that federal
agencies will fail to set, or fail to notify certifying authorities of,
the reasonable period of time under this final rule. The EPA expects
federal agencies to communicate and act in good faith and in accordance
with this final rule regarding the establishment of a reasonable period
of time. Consistent with the proposal, the final rule authorizes
federal agencies to establish categorical reasonable periods of time
for types of licenses or permits, thereby increasing efficiency and
transparency. To provide additional certainty to certifying authorities
and project proponents, the EPA recommends that federal agencies
promulgate in their updated certification regulations a minimum
reasonable period of time that may be extended on a case-by-case basis,
so long as it does not exceed one year from receipt of the
certification request. To the extent that federal agencies are
considering establishing additional procedures for communicating the
reasonable period of time to certifying authorities (e.g., directing
all project proponents to a public website to view categorically-
established reasonable periods of time in federal agency regulations),
the EPA supports the development of such procedures so long as they
comply with the requirements in this rule. The EPA disagrees with the
suggestion that a separate appeal process is necessary for certifying
authorities to adjudicate the federal agency's reasonable period of
time, as this final rule provides a process for the certifying
authority to request an extension to the established reasonable period
of time and describes clear factors for federal agencies to consider
when setting the reasonable period of time in the first instance.
    The EPA is clarifying that section 401 does not prohibit a federal
agency from extending an established reasonable period of time,
provided that the extended time period is reasonable and does not
exceed one year from receipt. Some commenters stated that it would
increase regulatory uncertainty for project proponents if the
reasonable period of time could be modified. However, most commenters
on this issue agreed that the rule should allow the flexibility to
modify timeframes, and many of these commenters agreed that the rule
should mirror the statute and maintain the maximum timeframe of one
year. A few commenters suggested that the Agency clarify the process
for modifying the time period, for instance by requiring specific
information to be included in an extension request, or by providing
federal agencies with a deadline to respond to extension requests.
Another commenter said the rule should provide a dispute resolution
process in the event the federal agency denies the State's request for
an extension. A few commenters stated that federal agencies should be
prohibited from shortening the reasonable period of time, and other
commenters asserted that federal agencies, in the spirit of cooperative
federalism, should consult with certifying authorities about when
shorter timelines may be appropriate.
    The EPA does not expect reasonable periods of time to be extended
frequently, but the final rule is intended to provide federal agencies
with additional flexibility to account for unique circumstances that
may reasonably require a longer period of time than was originally
established. For such cases, the EPA is finalizing as proposed the
process by which the extended time period should be communicated in
writing to the certifying authority and the project proponent to ensure
that all parties are aware of the change. This provision is
substantively identical to the proposed provision, with minor
modifications to

increase clarity. The EPA finds it unnecessary to include additional
timelines and procedures in the regulatory text because, as many
commenters on the proposed rule pointed out, many certifying
authorities and federal agencies already have established procedures in
place through cooperative agreements or memoranda of agreement. The
Agency intends to maintain flexibility in the final rule for federal
agencies and certifying authorities to coordinate in this manner and to
routinize these processes to increase efficiencies. Under the final
rule, the reasonable period of time could be extended, as there may be
project-specific cases when this is appropriate, so long as the period
of time remains ``reasonable.'' Consistent with the proposal, the final
rule does not authorize a reasonable period of time to be shortened
once it is established. The Agency has made edits in final rule section
121.6 to clarify that the reasonable period of time can be extended,
but not shortened, once it is established. This change provides
flexibility in circumstances where unique or complex issues may arise,
but maintains certainty for the certifying authority that the
reasonable period of time, once established, cannot be made shorter.
    The EPA is reaffirming in this final rule that the federal agency
also determines whether waiver has occurred. Some commenters asserted
that federal agencies do not have authority to determine that waiver
has occurred. The EPA has considered these comments and disagrees with
them. Relevant court decisions and the EPA's 1971 certification
regulations recognized the role of the federal agency to determine
whether a waiver has occurred. See Millennium Pipeline Company, L.L.C.,
860 F.3d at 700-01 (acknowledging that a project proponent can ask the
federal agency to determine whether a waiver has occurred). Consistent
with the proposal, this final rule clarifies the procedures for a
federal agency to notify a certifying authority and project proponent
that a waiver has occurred. As discussed in section III.G.2.d of this
notice below and pursuant to section 121.9 of the final rule, if the
certifying authority fails or refuses to act before the date specified
by the federal agency, the federal agency is required to communicate in
writing to the certifying authority and the project proponent that
waiver has occurred.
b. Tolling
    Section 401 does not include a tolling provision. Consistent with
the proposal, the EPA concludes in this final rule that the period of
time to act on a certification request does not pause or stop for any
reason once the certification request has been received. One recent
court decision held that withdrawing and resubmitting the same
certification request for the purpose of circumventing the one-year
statutory deadline does not restart the reasonable period of time.
Hoopa Valley Tribe v. FERC, 913 F.3d 1099 (D.C. Cir. 2019) (Hoopa
Valley). The EPA agrees with the Hoopa Valley court that ``Section
401's text is clear'' that one year is the absolute maximum time
permitted for a certification, and that the statute ``does not preclude
a finding of waiver prior to the passage of a full year.'' Id. at 1103-
04. The court of appeals noted that ``[b]y shelving water quality
certifications, the states usurp FERC's control over whether and when a
federal license will issue. Thus, if allowed, the withdrawal-and-
resubmittal scheme could be used to indefinitely delay federal
licensing proceedings and undermine FERC's jurisdiction to regulate
such matters.'' Id. at 1104. The court further observed that the
legislative history supports its interpretation of the statute's plain
language, because ``Congress intended Section 401 to curb a state's
`dalliance or unreasonable delay.''' Id. at 1104-05 (emphasis in
original).
    The Hoopa Valley case raised another important issue: Perpetual
delay of relicensing efforts (in that case for more than a decade)
delays the implementation and enforcement of water quality requirements
that have been updated and made more stringent in the years or decades
since the last relicensing process. See id. at 1101.\60\ This concern
was also raised in stakeholder recommendations received during pre-
proposal outreach. One stakeholder specifically cited the delays in the
Hoopa Valley case as a ``concrete example of how the Sec.  401
certification process was being manipulated by a state certification
agency to delay implementation of effective water quality controls and
enhancement measures'' and that ``allowing the Sec.  401 certification
process to be used to achieve further delays in the re-licensing
process is in turn an abuse of the certification process.'' Letter from
National Tribal Water Council to David P. Ross, Assistant Administrator
of the Office of Water, EPA (Mar. 1, 2019).
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    \60\ This is a concern shared by the EPA. The Agency has taken
steps to promote its own compliance with CWA deadlines, including
acting on State and Tribal water quality standard submittals,
because prior delays have created a significant backlog of state
submittals awaiting an Agency action. Memorandum from David P. Ross,
Assistant Administrator of the Office of Water, to Regional
Administrators (June 3, 2019). These delays and backlogs prevent
States and Tribes from timely implementing and enforcing updated
programs and standards that could otherwise be improving water
quality.
---------------------------------------------------------------------------

    Given the Hoopa Valley court's plain language analysis of the
statute and the potential water quality impacts from allowing
certification decisions to be delayed, and the Agency's agreement with
that analysis, section 121.6(e) of the final rule provides:

    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 section 121.6(d).

    This clear statement reflects the plain language of section 401
and, as described above, is supported by legislative history. The
Agency expects this clarification to reduce delays and to help ensure
that certification requests are processed within the reasonable period
of time established by the federal agency, and at most, within one year
from receipt of the request.
    Some commenters agreed that section 401 establishes an outer bound
of one year for the reasonable period of time. However, other
commenters argued that the rule should allow flexibility on the
timeline beyond one year. Many of these commenters argued States should
not be limited to one year if they have received inadequate information
and if projects are complex. One commenter asserted that section 401
allows for a State to ``act on'' a request within one year without
reaching a final decision in that one year, and the commenter asserted
that this interpretation provides a legal basis to allow extensions
exceeding one year.
    Some commenters supported the proposed provision to the effect that
the certifying authority is not authorized to request the project
proponent to withdraw a request or take other action to modify or
restart the time period. Most of these commenters stated that the
proposed rule makes clear the allowable time may not exceed the maximum
of one year, and some of these commenters agreed that no tolling should
be allowed. Some of these commenters cited the Hoopa Valley case, and
one commenter cited the CWA legislative history. However, some
commenters disagreed with the suggestion that certifying authorities
should be prohibited from coordinating with project proponents to
modify or restart the reasonable period of time, as they asserted this
would be contrary to well-established practice. Some commenters stated
that a reasonable period of time longer than one year may

be warranted for complete information to be submitted and for
accommodating adequate State review and certification of projects. Most
of these commenters asserted that withdrawal and resubmittal to toll
the timeline is the best way to manage unforeseen issues or information
gaps. A few of these commenters stated that the words ``for the purpose
of'' in proposed rule section 121.4(f) (``[t]he certifying authority is
not authorized to request the project proponent to withdraw a
certification request or to take any other action for the purpose of
modifying or restarting the established reasonable period of time''
(emphasis added)) creates a subjective element depending on the
certifying authority's intent, and would create ambiguity in the rule
if finalized as proposed.
    The Agency understands that in cases where the certifying authority
and project proponent are working collaboratively and in good faith, it
may be desirable to allow the certification process to extend beyond
the reasonable period of time and beyond the one-year statutory
deadline. However, the final rule reflects the statutory language that
the reasonable period of time may not exceed one year, 33 U.S.C.
1341(a)(1), and the Hoopa Valley holding that certifying authorities
and project proponents lack discretion under the CWA to engage in a
coordinated effort to extend the reasonable period of time.
Additionally, the Agency disagrees with the commenter's assertion that
the term ``act on'' provides a legal basis to extend the reasonable
period of time beyond one year. As discussed in section III.D of this
notice, a certifying authority may take one of four actions on a
certification request: Grant certification, grant certification with
conditions, deny certification, or expressly waive certification. If a
certifying authority fails or refuses to take one of these actions
within the reasonable period of time, the CWA provides that the
certifying authority will be deemed to have waived the certification
requirement. 33 U.S.C. 1341(a)(1). The Agency agrees with public
commenters that it would increase clarity to remove the words ``for the
purpose of'' in proposed rule section 121.4(f), and the final rule has
been modified accordingly. The Agency has also clarified in final rule
section 121.6(e) that the certifying authority may take action to
extend the reasonable period of time only in accordance with section
121.6(d). Because the final rule does not contemplate that the
reasonable period of time can be tolled or ``restarted,'' as described
below in this section, final regulatory text section 121.6(e) was also
edited from the proposal so as to increase clarity and to remove the
term ``restarting.''
    Many commenters asked for clarification on a project proponent's
ability to withdraw and resubmit a request, noting that project
proponents often voluntarily withdraw and resubmit applications. Some
commenters requested that the Agency clarify what action a certifying
authority should take when a project proponent withdraws a request. In
response, the Agency notes that nothing in the final rule precludes
project proponents from voluntarily withdrawing requests of their own
accord. However, to prevent scenarios like the Hoopa Valley case, and
to address the EPA's policy concern about section 401 delays, the
Agency expects that project proponents will rarely voluntarily withdraw
requests for certification. The EPA expects that such withdrawals will
take place only if the project plans have been modified such that a new
certification request is required, or if the project is no longer
planned. If a project proponent withdraws a certification request
because the project is no longer being planned or if the project
materially changes from what was originally proposed, as described
above, the certifying authority no longer has an obligation to act on
that request within the reasonable period of time. In all cases,
project proponent withdrawals would not result in tolling or pausing
the clock, but rather any resubmitted request would be subject to the
pre-filing meeting request requirement. After receipt by the certifying
authority, the new request would initiate a new reasonable period of
time as determined by the federal agency.
    Some commenters supported stopping the clock when project
proponents are not responsive to requests for additional information,
or do not provide adequate information to the certifying authority.
Some commenters requested clarification on whether withdrawn requests
that are resubmitted would restart a paused clock, or completely
restart the reasonable period of time. Commenters also asked for
clarification on whether the contents of the request, i.e., whether it
is substantially the same or a different request, would affect the
restarting of the clock.
    The Agency is reaffirming in this final rule that the clock does
not toll for any reason. The Agency disagrees that the clock should
toll while project proponents gather additional information or for any
other reason, as there is no statutory basis for tolling. As described
above, the reasonable period of time begins when a certifying authority
receives a certification request as defined in the final rule, and it
ends when the certifying authority takes action to grant, grant with
conditions, deny, or waive. The Agency is clarifying that the
reasonable period of time does not continue to run after a
certification decision is issued regardless of whether there is time
remaining in the ``reasonable period of time.'' As explained in section
III.L of this notice, a certifying authority cannot modify the
certification after issuing a decision to the federal agency.
    The EPA recognizes that there may be project-specific situations
when the reasonable period of time may be extended (not to exceed one
year) to account for project complexities or the need to gather
additional information. Procedures for extending the reasonable period
of time are explained above and included in the final rule. As
discussed above, the EPA expects voluntary withdrawals of certification
requests to occur only when the project has materially changed, as
described above, or is no longer planned. In such a case, a new request
would initiate a new reasonable period of time and would not
``restart'' the clock from a prior withdrawn request for certification.
The EPA would not expect such a new request to be identical to a
previously withdrawn request for certification.
    Many commenters noted that given the proposed rule's shortened
timeframes, limitations on States and Tribes collecting additional
information, and provisions allowing the reasonable period of time to
begin prior to ``an application being complete,'' States may decide to
deny certification rather than risking the possibility that a federal
agency would determine that the State waived certification. These
commenters noted that the process of successive State denials of
certification and the resulting litigation could result in delaying
projects and defeating the intent of the proposed rule to promote
efficiency and certainty.
    The Agency disagrees with these commenters. Neither the proposal
nor the final rule shortened the timeframe for certification. The
statute requires action on a certification request within a reasonable
period of time not to exceed one year. The proposed rule and this final
rule provide exactly the same timeframe as the statute provides. To the
extent commenters view the clarifications in the rule that the statute
does not authorize tolling or a ``withdrawal and resubmit'' scheme as
``shortening the timeframe,'' the Agency disagrees because these
mechanisms that have previously been used to

extend the reasonable period of time are not authorized by the statute.
Similarly, neither the proposal nor this final rule limits the ability
of a certifying authority to collect additional information from a
project proponent. The final rule provides an objective list of
information that a project proponent must provide to a certifying
authority to start the reasonable period of time. As described above,
this is intended to provide transparency and predictability so all
parties understand what information is necessary to start the
reasonable period of time. The Agency encourages the parties to engage
throughout the certification process to help ensure the certifying
authority has the information needed to act on the certification
request.
    Additionally, the final rule includes a number of provisions that
should reduce the need for certifying authorities to deny certification
based on insufficient information. Section III.B of this notice
describes a mandatory pre-filing meeting request, which will allow
project proponents and certifying authorities to begin early
conversations about proposed projects prior to the start of the
reasonable period of time. Additionally, section III.C of this notice
discusses factors that a project proponent should consider in
determining when to submit a certification request, as the timing of
request submission affects the information that may be available for
certifying authorities to make timely decisions. Section III.C
identifies opportunities for federal licensing and permitting agencies
to establish by rule an appropriate point in the federal licensing or
permitting process when a project proponent should request
certification. Finally, this final rule establishes certain criteria
that the EPA as a certifying authority must follow when making
additional information requests (e.g., only requesting information that
is related to the discharge; only requesting information that can be
collected within the reasonable period of time). The Agency encourages
all certifying authorities to consider whether similar criteria would
help clarify expectations when certifying authorities seek additional
information during the certification process.

G. Contents and Effects of Certification

1. What is the Agency finalizing?
    Under the final rule, 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 CWA. Alternatively, a certifying authority may waive
the certification requirement, whether expressly or by failing to act.
The Agency is finalizing the requirement that any action on a
certification request must be in writing and must clearly state whether
the certifying authority has chosen to grant, grant with conditions, or
deny certification. This final rule also requires that any express
waiver of the certification requirement by the certifying authority be
in writing.
    Under the final rule, a certification must include certain
supporting information for each condition, including, at a minimum, a
statement explaining why the condition is necessary to assure that the
discharge from the proposed project will comply with water quality
requirements, and a citation to the federal, State, or Tribal law that
authorizes the condition. The final rule also includes slightly
different information requirements to support conditions in a
certification for issuance of a general license or permit. These
requirements are described in section III.M below. The EPA had proposed
also to require a statement of whether and to what extent a less
stringent condition could satisfy applicable water quality
requirements. The EPA is not including that provision in the final
rule.
    In circumstances where certification is denied, the EPA is
finalizing the requirement that the written notification of denial
state the reasons for denial, including the specific water quality
requirements with which the discharge will not comply; a statement
explaining why the discharge will not comply with the identified water
quality requirements; and 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. The Agency has made minor editorial changes to these
provisions in the final rule to increase clarity, but the final rule
provisions retain the same meaning as the proposed rule provisions. The
final rule also includes slightly different information requirements to
support a denial of a certification for issuance of a general license
or permit. These requirements are described in section III.M below.
    Under the final rule, if a certification or denial does not include
the information requirements described further below, the certification
or the denial will be considered waived by the federal licensing or
permitting agency. Likewise, if a certification condition is not
supported by the required information, the condition will be considered
waived under the final rule. Under the final rule, a waived condition
does not result in waiver of the entire certification.
    Additionally, if a certifying authority fails to follow the
procedural requirements of section 401, such as the public notice
provisions, or fails to complete its review within the reasonable
period of time, the certification will be deemed waived.
2. Summary of Final Rule Rationale and Public Comments
    The CWA does not define the term ``certification'' or offer a
definitive list of its contents or elements. Section 304(h) of the CWA
requires the EPA to promulgate factors which must be provided in any
section 401 certification, and under section 501(a) the EPA may
reasonably interpret the statute to add content to those terms. See 33
U.S.C. 1251(d); 33 U.S.C. 1361(a); Chevron, 467 U.S. at 843-44. The
EPA's 1971 certification regulations included certification
requirements. In this final rule, EPA is updating those requirements
for each type of certification action and is more fully addressing the
effects of those actions.
a. Grant
    Granting a section 401 certification demonstrates that the
certifying authority has concluded that the potential discharge into
waters of the United States from the proposed activity will be
consistent with water quality requirements. Granting certification
allows the federal agency to proceed with issuing the license or
permit. Consistent with the proposal, the final rule requires all
certification grants, with or without conditions, to be in writing and
to include a written statement that the discharge from the proposed
federally licensed or permitted project will comply with water quality
requirements, as defined at section 121.1(n) of the final rule. The
Agency has concluded that this is a straightforward requirement and one
that promotes transparency for the public.
b. Grant With Conditions
    If the certifying authority determines that the potential discharge
from a proposed activity would be consistent with water quality
requirements only if certain conditions are met, the authority may
include such conditions in its certification. The EPA proposed that
three elements be included in a certification to support each
condition.

The Agency is finalizing two of those elements.
    Some commenters supported the proposed requirement for certifying
authorities to cite applicable State or Tribal law and to provide an
explanation of the necessity for each condition. Some commenters agreed
that these requirements would provide transparency, and assist the
federal license or permitting agency with implementation and
enforcement. Other commenters asserted that these requirements would be
overly burdensome for certifying authorities. Some commenters asserted
that certifying authorities already generally cite the applicable State
laws and regulations on which they base their conditions, and other
commenters said that these requirements would create new obligations
for certifying authorities. Other commenters confirmed that the value
of including this information in every certification, in terms of
transparency and regulatory certainty, will far outweigh the minimal
additional administrative burden of including this information in a
certification. The EPA agrees that requiring an explanation for the
necessity of the condition and a citation to the underlying State,
Tribal, or federal laws, as appropriate, will promote transparency and
consistency and is finalizing these requirements. The EPA intends this
provision to require citation to the specific State or Tribal statute
or regulation or the specific CWA provision, e.g., CWA section
301(b)(1)(C), that authorizes the condition, and that general citations
to CWA section 401 or other general authorization or policy provisions
in federal, State, or Tribal law would be insufficient to satisfy the
proposed requirement.
    Some commenters also supported the proposed requirement for
certifying authorities to identify whether a less stringent condition
could satisfy applicable water quality requirements. However, most
commenters asserted that this requirement would be burdensome for
certifying authorities, suggesting that States and Tribes would need to
conduct two detailed analyses for the certification: One to establish
appropriate conditions, and another to evaluate whether a less
stringent condition would be sufficient. A commenter suggested that
proposed section 121.5(d)(1) may conflict with proposed section
121.5(d)(3). This commenter recommended replacing section 121.5(d)(3)
with a requirement that the certifying authority include only the least
stringent conditions necessary to satisfy applicable water quality
requirements. The EPA has considered these comments. Under the final
rule, certifying authorities will not have to identify whether and to
what extent a less stringent condition could satisfy applicable water
quality requirements. As described in the preamble for the proposed
rule, this provision is included in the EPA's existing certification
regulations for the NPDES permit program (see 40 CFR 124.53(e)(3)), but
the EPA agrees with the commenters that asserted that it may be
difficult to provide an explanation as to why a condition is necessary
and to also identify a less stringent condition that could satisfy
water quality requirements.
    The EPA disagrees with the suggestion that the information
requirements for conditions in section 121.5(d)(1) and (2) of the final
rule would be burdensome for certifying authorities. Certifying
authorities should already be generating this type of information to
build complete and legally defensible administrative records to support
their certification actions. As a general matter, if a certifying
authority determines that one or more conditions are necessary for a
section 401 certification, the certifying authority should clearly
understand and articulate why it is necessary and should identify the
legal authority for requiring such conditions. Including this
information in the certification itself provides transparency for the
project proponent, the federal licensing and permitting agency, and the
public at large. For these reasons, the EPA has determined that these
are appropriate requirements, and they are included in the final rule.
    During pre-proposal stakeholder engagement, the EPA also heard from
federal agencies that, because several court decisions have concluded
that such agencies do not have authority to ``review and reject the
substance of a State certification or the conditions contained
therein,'' Am. Rivers, Inc., 129 F.3d at 106, non-water quality-related
conditions are often included in federal licenses and permits. Once
included in the federal license or permit, federal agencies have found
it challenging to implement and enforce these non-water quality-related
conditions. Additionally, stakeholders in pre-proposal engagement and
in public comments expressed concern that federal agencies do not
always enforce the certification conditions incorporated in their
federal licenses or permits.
    EPA agrees that it is important for federal agencies to have a
clear understanding of the basis for certification conditions, because
conditions must be included in a federal license or permit. Several
appellate courts have analyzed the plain language of the CWA and
concluded that the Act ``leaves no room for interpretation'' and that
``state conditions must be'' included in the federal license or permit.
Sierra Club v. U.S. Army Corps of Engineers, 909 F.3d 635, 645 (4th
Cir. 2018) (emphasis in original); see also U.S. Dep't of Interior v.
FERC, 952 F.2d 538, 548 (D.C. Cir. 1992) (``FERC may not alter or
reject conditions imposed by the states through section 401
certificates.''); Am. Rivers, Inc. v. FERC, 129 F.3d 99, 107 (2d Cir.
1997) (recognizing the ``unequivocal'' and ``mandatory'' language of
section 1341(d)); Snoqualmie Indian Tribe v. FERC, 545 F.3d 1207, 1218
(9th Cir. 2008) (collecting cases). The EPA acknowledges commenters who
asserted that federal agencies may not consistently enforce
certification conditions, and also acknowledges that federal agencies
can apply discretion in enforcement decisions. However, providing a
citation to the legal authority underpinning a certification condition
is one way to make it easier for federal agencies to enforce these
conditions. Federal agencies during pre- and post-proposal engagement
acknowledged that this information will help them understand how best
to implement and enforce certification conditions. In addition,
including this information in each certification will provide
transparency for the overall certification process and allow the
project proponent to understand the legal basis for each condition and
to assess whether a condition is within the statute's lawful scope and
what recourse may be available to challenge it in an appropriate court
of competent jurisdiction. Overall, the EPA concludes that the benefits
of providing this information will significantly outweigh any
additional administrative burden that certifying authorities may incur
because of these new requirements.
    One commenter asserted that the language in proposed section
121.8(b) should be changed from ``[t]he license or permit must clearly
identify any conditions that are based on the certification'' to
``[t]he license or permit must clearly identify any conditions that are
from the certification.'' This commenter asserted that the conditions
cannot be based on the certification because federal agencies do not
have authority to develop their own certification conditions or to
modify a condition in a certification prior to incorporating it into
the federal permit. The EPA has made this change in

section 121.10 of the final rule for clarity and to reaffirm that if a
condition meets the procedural requirements of section 401 and includes
the elements listed in 121.7(d) of the final rule, the condition must
be incorporated into the federal license or permit in its entirety, as
drafted by the certifying authority. Consistent with the proposal,
under the final rule, deficient certification conditions do not
invalidate the entire certification, nor do they invalidate the
remaining conditions in the certification. As discussed below, the
Agency has clarified in the final rule that conditions that do not meet
these requirements will be deemed waived.
c. Deny
    A certifying authority may choose to deny certification if it is
unable to certify that the discharge from a proposed project would be
consistent with applicable water quality requirements. If a
certification is denied, the federal agency may not issue a license or
permit for the proposed project. Id. at 1341(a). Consistent with the
proposal, the final rule requires certification denials to be made in
writing and to include three elements to support certification denials.
The Agency has made minor editorial changes to these provisions in the
final rule to increase clarity, but the final rule provisions retain
the same meaning as the proposed rule provisions.
    Some commenters agreed with the proposal to require certain
information in a certification denial. One commenter asserted that when
preparing denials, it would be helpful for certifying authorities to
specify water quality requirements with which the proposed project will
not comply, as this would assist federal agencies with their duty to
determine whether a section 401 certification facially satisfies the
requirements of section 401. Another commenter recommended that the
final rule also require a statement that there is no certification
condition which would prevent noncompliance with water quality
requirements.
    Other commenters opposed the proposed requirement that
certification denials include ``the specific water quality data or
information, if any, that would be needed to assure that the discharge
from the proposed project complies with water quality requirements.''
These commenters asserted that this requirement was vague, unnecessary,
and burdensome and further asserted that it would improperly place a
new burden on certifying authorities that should be borne by project
proponents to show why their project complies with water quality
requirements. A few of these commenters recommended that insufficient
information should be a basis for denial.
    As a general matter, the EPA disagrees with the suggestion that
including this information in a denial would be overly burdensome for
certifying authorities. Indeed, a number of States asserted in public
comments that the primary reason why certifications cannot be issued
within the reasonable period of time is that project proponents have
not provided sufficient information or a ``complete'' certification
request. If this is the case, certifying authorities should be able to
identify what information is lacking that precludes a determination
that the project will comply with water quality requirements, as the
term is defined in the final rule. Clearly establishing a record to
support the basis for a denial should already be done as a matter of
course to establish a complete defensible administrative record for the
certifying authority's action. Further, any denial should be informed
by the record before the certifying authority and should be issued with
information sufficient to allow the project proponent to understand the
basis for denial and have an opportunity to modify the project or to
provide new or additional information in a new certification request.
    The EPA is finalizing the requirement that a certification denial
be in writing and include three elements to support the denial. The
required elements will lead to more transparent decision-making and a
more complete record of the administrative action. The final rule's
requirements may also facilitate discussions between certifying
authorities and project proponents about what may be necessary to
obtain a certification should the project proponent submit a new
certification request in the future. A certifying authority's
explanation of why a discharge from a proposed project will not comply
with relevant water quality requirements will also assist reviewing
courts in understanding whether the denial is appropriately based on
the scope of certification discussed in section III.E of this notice.
    Some commenters asserted that the proposed rule would prohibit
certifying authorities from denying certification based on a lack of
information sufficient to grant certification. The EPA disagrees with
these commenters. Indeed, by requiring that ``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,'' the final rule reaffirms and clarifies that
insufficient information about the proposed project can be a basis for
a certification denial. If the certifying authority determines that
there is no specific data or information that would allow the
certifying authority to determine that the discharge will comply with
water quality requirements, it should indicate as such and provide the
basis for the determination in its written decision to deny
certification.
    As noted in the preamble to the proposed rule, the EPA is aware
that some certifying authorities have requested ``additional
information'' in the form of multi-year environmental investigations
and studies, including completion of a NEPA review, before the
certifying authority would act on a certification request. As discussed
in section III.H of this notice, the final rule explicitly prohibits
the EPA from requesting additional information that cannot be generated
within the reasonable period of time. The rationale for this
prohibition applies to all certifying authorities; the Agency believes
that such requests for additional information, regardless of which
certifying authority generates such requests, would be contrary to the
plain language of the statute, which requires certifying authorities to
act on a request within a reasonable period of time that does not
exceed one year. While additional information requests may be a
necessary part of the certification process, such requests may not
result in extending the period of time beyond which the CWA requires
certifying authorities to act.
d. Waiver
    When a certifying authority waives the requirement for a
certification, under this final rule the federal agency may proceed to
issue the license or permit in accordance with its implementing
regulations. A certifying authority may waive expressly by issuing a
written statement that it is waiving certification, or implicitly waive
by failing or refusing to act. Waiver may occur due to a failure or
refusal to act in accordance with the procedural requirements of
section 401 or within the reasonable period of time (see section III.F
of this notice), or by failing or refusing to provide information
required to support certifications (section 121.7(c) of the final rule)
or denials (section 121.7(e) of the final rule). A condition may also
be waived by failing or refusing to provide information required to
support

certification conditions (section 121.7(d) of the final rule).
i. Explicit Waiver
    Under the final rule, a certifying authority may waive expressly by
issuing a written statement that it is waiving the requirement for
certification. Some commenters supported allowing certifying
authorities to explicitly waive certification. One commenter observed
that doing so could allow the federal permitting authority to proceed
more quickly with issuing a license or permit if it need not wait until
the end of the reasonable period of time. Several commenters asserted
that the statute does not provide for express waiver. A few other
commenters stated that certifying authorities should be required to
provide a detailed statement explaining their reasoning for waiving
certification.
    The EPA has determined that, although the statute does not
explicitly provide for express or affirmative waiver, providing this
opportunity in the final rule is not inconsistent with a certifying
authority's ability to waive through failure or refusal. See EDF v.
Alexander, 501 F. Supp. 742, 771 (N.D. Miss. 1980) (``We do not
interpret [the Act] to mean that affirmative waivers are not allowed.
Such a construction would be illogical and inconsistent with the
purpose of this legislation.''). The EPA also agrees with the
commenters who stated that allowing explicit waivers may create
efficiencies in circumstances where the certifying authority knows
early in the process that it will waive. The EPA is not requiring
certifying authorities to provide a detailed statement explaining their
reasoning for waiving, as the Agency recognizes certifying authorities
may waive for a variety of reasons. Consistent with the proposal, the
final rule provides that a certifying authority may expressly waive by
providing written notification of waiver to the project proponent and
federal agency.
    An express or affirmative waiver does not reflect a determination
that the discharge will comply with water quality requirements.
Instead, an express or affirmative waiver indicates that the certifying
authority has chosen not to act on a certification request. The EPA
agrees with the commenter who noted that express or affirmative waiver
enables the federal agency to proceed with issuing a license or permit
where the certifying authority has stated it does not intend to act,
thereby avoiding the need to wait for the reasonable period of time to
lapse.
ii. Implicit Waiver
    The plain language of section 401(a)(1) provides that the
certification requirement is waived when a certifying authority ``fails
or refuses to act on a request for certification, within a reasonable
period of time (which shall not exceed one year).'' 33 U.S.C.
1341(a)(1). The Agency proposed to define ``fails or refuses to act''
with the intention of providing greater clarity for project proponents,
certifying authorities, and federal agencies about when an implicit or
constructive waiver could occur. The Agency is not finalizing the
proposed definition of ``fails or refuses to act'' and is instead
providing additional clarification in the final rule about specific
procedural failures that could trigger a federal agency to determine
that waiver has occurred.
    Under the proposed rule, waiver would occur if the certifying
authority actually or constructively failed or refused to act within
the scope of certification or within the reasonable period of time. The
proposed rule preamble explained that the phrase ``fails or refuses to
act'' lends itself to at least two interpretations. Under one
interpretation, a certifying authority that takes no action, or refuses
to take action, has waived certification. Under an alternative
interpretation, a certifying authority that takes action beyond the
scope of section 401 has failed or refused to act in a way Congress
intended and has waived certification. The proposed definition was
intended to resolve this ambiguity in the statute.
    Some commenters supported the proposed definition of ``fail or
refuse to act,'' including the implicit or constructive waiver
provision. A few commenters cited City of Tacoma v. FERC, 460 F.3d 53
(D.C. Cir. 2006), in support of the proposed rule, and these commenters
agreed that it would be appropriate for federal agencies to facially
review certifications. Some of these commenters said that this approach
is not supported by the text of the statute or by congressional intent.
Many commenters asserted that the legislative history of the waiver
provision makes clear that it was intended only to prevent a State's
sheer inactivity. One of these commenters noted that the legislative
history acknowledges that the waiver provision cannot protect against
arbitrary State agency action and that the courts are the forum to
challenge a State's refusal to give a certification.\61\ Some
commenters stated that allowing the federal agency to review a
certification denial as a failure to act is unreasonable and
essentially grants the federal government veto power over State action.
---------------------------------------------------------------------------

    \61\ The EPA observes that some legislative history related to
section 401 is internally inconsistent and should not be relied upon
as a definitive statement of congressional intent. The history
quoted by these commenters (H.R. Rep. No. 92-911, at 121-22 (1972))
says both that a failure or refusal amounts to waiver and that a
refusal must be addressed in a State court challenge brought by the
project proponent. ``In such situations, where there is conflicting
legislative history and `the statute is silent or ambiguous with
respect to the specific issue,' our [the court's] role is to
determine `whether the agency's answer is based on a permissible
construction of the statute.''' Smriko v. Ashcroft, 387 F.3d 279,
288 (3d Cir. 2004) (quoting Chevron); United States v. Deardorff,
343 F. Supp. 1033, 1037-38 (S.D.N.Y 1971) (the canon of statutory
interpretation that ``legislative history not be used to interpret a
statute that is clear and unambiguous on its face . . . is
particularly apposite where the legislative history is itself
somewhat ambiguous.'').
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    The EPA disagrees with commenters who asserted that federal
agencies cannot review certifications. As discussed below, some courts
have concluded that federal agencies have an affirmative obligation to
determine whether a certifying authority has complied with requirements
related to a section 401 certification. See City of Tacoma v. FERC, 460
F.3d 53, 67-68 (D.C. Cir. 2006); Keating v. FERC, 927 F.2d 616, 622-
623, 625 (D.C. Cir. 1991). The final rule affirms that it is the
responsibility of the federal agency to facially review certifications
to ensure that certifying authorities have complied with the procedural
requirements of section 401. If a federal agency, in its review,
determines that a certifying authority failed or refused to comply with
the procedural requirements of the Act, including the procedural
requirements of this final rule, the certification action, whether it
is a grant, grant with conditions, or denial, will be waived.
    After considering public comments and other enhancements in this
final rule, the Agency is not finalizing the definition of ``fail or
refuse to act.'' The Agency concludes that the key ambiguous term in
this statutory phrase is ``to act'' and reasonably interprets this term
to mean not just any act or action, but an act or action that is ``in
conformance with applicable statutes and regulations.'' The final rule
provides a clear and unambiguous list of actions that are not in
conformance with section 401 and that therefore amount to waiver. The
clarity in the final rule provides certifying authorities with
sufficient notice that all actions on certification requests must be
taken in accordance with the procedural requirements of the statute and
this final

rule. Accordingly, the Agency has decided that a separate definition of
``fail or refuse to act'' is not necessary. Treatment of procedural
deficiencies as waivers is consistent with the EPA's existing
regulations for the NPDES program. See 40 CFR 124.53(e)(2) (providing
that for certification on a draft permit, ``[f]ailure to provide such
citation waives the right to certify with respect to that condition'').
    The waiver provision in section 121.9 of the final rule has been
expanded to provide additional clarity on the circumstances that amount
to a failure or refusal to act. As discussed in section III.G.2.e of
this notice, a federal agency must determine whether waiver has
occurred, either expressly or implicitly through a failure or refusal
to act. Section 401 provides that certifying authorities may take one
of four possible actions on a certification request: Grant, grant with
conditions, deny, or waive. As long as a certifying authority takes one
of these four actions within the reasonable period of time and in
accordance with the procedural requirements of the Act and this final
rule, the certifying authority will have acted on the certification
request. However, section 401 provides that where a certifying
authority ``fails or refuses'' to act on a certification request,
certification shall be waived. 33 U.S.C. 1341(a)(1). Under the final
rule, a certifying authority waives certification if it fails or
refuses to act on a certification request in accordance with the
procedural requirements of section 401 and this final rule, including
but not limited to issuing public notice, acting within the reasonable
period of time, providing certification for projects that are within
their jurisdiction, providing certification decisions in writing, and
including the information required to support a certification or
denial. The final rule also provides that a certification condition may
be waived if the certifying authority fails or refuses to provide
information required in section 121.7(d). Under the final rule,
deficient conditions are severable from the certification. In other
words, waiver of a specific certification condition does not waive the
entire certification.
e. Federal Agency Review of Certifications
    The proposed rule would have required federal agencies to review a
certification action to determine whether it was issued in accordance
with the procedural requirements of the Act and determine whether the
action was taken within the ``scope of certification'' as provided in
the rule. The EPA has considered public comments and relevant court
decisions and is retaining in the final rule the requirement that
federal agencies review certification actions for compliance with the
procedural requirements of section 401, including procedural
requirements in this final rule. However, the final rule does not
require federal agencies to substantively evaluate or determine whether
a certification action was taken within the scope of certification. As
a general matter, federal agencies may not readily possess the
expertise or detailed knowledge concerning water quality and State or
Tribal law matters that would be necessary to make such substantive
determinations. The EPA has determined that other provisions of this
final rule, such as the definitions of ``water quality requirements,''
``discharge,'' and ``certification,'' and the information requirements
for certification conditions and denials listed in section 121.7(d) and
section 121.7(e), will help ensure that certifying authorities have the
information and necessary tools to act on a certification request
within the scope of certification as provided in this rule. The Agency
is not finalizing the provisions in section 121.6(c) and section
121.8(a)(1)-(2) of the proposed rule.
i. Federal Agency Procedural Review
    The final rule requires federal agencies to determine whether a
certifying authority's certification, certification condition, or
denial includes the information requirements in sections 121.7(c),
121.7(d), or 121.7(e) of the final rule. This federal agency review is
entirely procedural in nature and does not require any specific
expertise or knowledge in water quality or State or Tribal law. Under
the final rule, the federal agency's review is limited to determining
whether the certification action was taken in accordance with
procedural requirements and whether the certification, condition, or
denial includes all of the required information. Federal agency review
under the final rule does not include a substantive evaluation of the
sufficiency of that information.
    A few commenters supported the proposed requirement that federal
agencies substantively review water quality certifications and asserted
that such reviews would bring clarity and certainty to the water
quality certification process. These commenters also supported the
proposed authority for federal agencies to determine that constructive
waiver occurred for certifications, conditions, and denials that failed
to comply with procedural requirements of the rule. Some commenters
stated that allowing federal agencies to review and reject
certifications, conditions, and denials would violate the rights of
States and Tribes. Some commenters stated that section 401(a)(1), which
provides that ``[n]o license or permit shall be granted if
certification has been denied,'' prohibits the federal government from
vetoing denials. Some commenters stated that the EPA did not provide
any legal support from the CWA or case law for its proposed approach of
allowing federal review of certifications, conditions, and denials.
    The Agency has made modifications in the final rule text to clarify
that federal agency review of certifications, conditions, and denials
is procedural in nature and does not extend to substantive evaluations.
The EPA's final regulatory text at sections 121.8 (Effect of denial of
certification), 121.9 (Waiver), and 121.10 (Incorporation of
certification conditions into the license or permit) contemplate that
the federal licensing or permitting agency will review certifications
only to ensure that certifying authorities have included certain
required elements and completed certain procedural aspects of a section
401 certification. Under the final rule, federal agencies are required
to determine whether certification denials include the three elements
listed in section 121.7(e). If certification denials do not include
these three elements, the certifying authority has ``fail[ed] or
refuse[d] to act'' (as explained in section III.G.2.d of this notice)
and therefore has waived certification. Similarly, federal agencies are
required to determine whether certification conditions include the two
elements listed in section 121.7(d) of the final rule. If the
certification conditions do not satisfy the requirements by listing
these two elements, the certifying authority has ``fail[ed] or
refuse[d] to act'' and will waive that deficient certification
condition.
    In delineating such a role for federal licensing or permitting
agencies, the EPA has interpreted the statute reasonably and
appropriately. In City of Tacoma, Washington v. FERC, the Court of
Appeals for the D.C. Circuit noted that ``[i]f the question regarding
the state's section 401 certification is not the application of state
water quality standards but compliance with the terms of section 401,
then [the federal agency] must address it. This conclusion is evident
from the plain language of section 401: `No license or permit shall be
granted until the certification required by this section has been
obtained or has been waived.' '' 460 F.3d at 67-68 (citing 33 U.S.C.

1341(a)(1)) (emphasis in original). The court went on to explain that
even though the federal agency did not need to ``inquire into every
nuance of the state law proceeding . . . it [did] require [the federal
agency] at least to confirm that the state has facially satisfied the
express requirements of section 401.'' Id. at 68; see also Hoopa Valley
Tribe v. FERC, 913 F.3d 1099, 1105 (D.C. Cir. 2019) (``had FERC
properly interpreted Section 401 and found waiver when it first
manifested more than a decade ago, decommissioning of the Project might
very well be underway''); Airport Communities Coalition v. Graves, 280
F. Supp.2d 1207, 1217 (W.D. Wash. 2003) (holding that the Army Corps
had discretion not to incorporate untimely certification conditions).
    Some commenters stated that allowing federal review of water
quality certifications would ignore the fact that the States and Tribes
are the experts on their water resources and know what is necessary to
assure that the water quality standards passed under State and Tribal
law are met. Another commenter requested clarification about whether
the EPA would provide any assistance or guidance to federal agencies as
they review certification denials and asked for clarification about how
the EPA would ensure consistency and reliability across such decisions.
    As discussed below, the final rule does not require the federal
agency to make a substantive inquiry into the sufficiency of the
information provided in support of a certification, condition, or a
denial. Rather, the final rule requires only that the federal agency
confirm that the certifying authority has complied with procedural
requirements of the Act and these regulations and has included the
required information in a certification, condition, or denial. Although
this limited review function may be new to some federal agencies, it is
consistent with the EPA's own longstanding practice under its NPDES
regulations implementing section 401 that allow the EPA to make such
determinations under certain circumstances. See 40 CFR 124.53(e). Under
the final rule, if a certification, condition or denial meets the
procedural requirements of section 401 and this final rule, the federal
agency must implement the certifying authority's action, irrespective
of whether the federal agency may disagree with aspects of the
certifying authority's substantive determination.
ii. Federal Agency Review of Scope
    The proposed rule would have required federal licensing and
permitting agencies to review and determine whether certifications,
conditions, and denials are within the ``scope of certification,'' as
articulated in this final rule. The final rule does not include this
additional substantive federal agency review requirement.
    A number of commenters supported the proposed language that would
allow a federal agency to set aside certification conditions or denials
that are not within the ``scope of certification.'' Some of these
commenters agreed that conditions should not be included in licenses or
permits if they do not meet the definition of ``water quality
requirements'' under the final rule. One of these commenters stated
that federal agency review of certifications would allow issues of
scope to be resolved expeditiously by the federal agency through the
federal licensing or permitting process, rather than by forcing the
applicant to challenge the certification decision through a separate
administrative or judicial appeal process, which could take months or
years to resolve. The commenter also asserted that the proposal would
allow the federal agency to protect the integrity of its licensing or
permitting process by rejecting conditions that exceed the scope of
section 401 even if the applicant chooses not to challenge the
conditions. Another commenter asserted that the federal agency has an
obligation to determine that a certification decision ``complies with
the terms of section 401,'' and that this obligation is supported by
case law. The commenter maintained that this obligation logically also
includes the obligation to confirm that certification conditions are
within the scope of section 401.
    Other commenters asserted that the proposed approach would conflict
with sections 401(a) and (d) because, they assert, that under section
401(a) a federal license or permit may not issue if certification is
denied, and under section 401(d), federal agencies have no authority to
review or veto State or Tribal conditions or certifications. These
commenters stated that the proposed provision would improperly
circumvent judicial review. Some commenters stated that the proposed
rule's federal agency review provision is in contravention of the
legislative intent. Some commenters stated that judicial precedent
prohibits the EPA from authorizing federal agencies to review the scope
or grounds for State and Tribal decisions on water quality
certifications. One commenter stated that the authority of federal
agencies to review State section 401 certifications is narrow and
limited to ensuring that the State complies with the specific
procedural requirements set forth in section 401, citing City of
Tacoma, Wash. v. FERC, 460 F.3d 53 (D.C. Cir. 2006); Alcoa Power
Generating Inc. v. FERC, 643 F.3d 963 (D.C. Cir. 2011); Keating v.
FERC, 927 F.2d 616 (D.C. Cir. 1991). A few commenters stated that a
federal agency's scope of review would lead to more confusion and
litigation and would make the certification process more time
consuming.
    The Agency has considered this diverse range of opinions. For the
reasons explained above, the Agency has concluded that under the final
rule, federal agencies have an affirmative obligation to review
certifications to ensure that certifying authorities have complied with
procedural requirements and have included the required information for
certifications, conditions, and denials. But the final rule does not
authorize federal agencies to substantively review certifications or
conditions to determine whether they are within the scope of
certification. The EPA disagrees with commenters who assert that
section 401(d) unambiguously requires one approach or another. As
described throughout the proposed and final rule preambles, there are
widely varying views and interpretations of section 401, and relevant
court decisions reflect these disparate views and interpretations. The
final rule provides a framework for section 401 water quality
certifications that is reasonable, is supported by the language of the
CWA, and will provide greater clarity and regulatory certainty.
    One commenter stated that none of the cases cited by the EPA in the
proposed rule suggested that federal agencies have authority to review
the substance of State-imposed section 401 conditions to determine
whether they comply with the EPA's view of the appropriate scope of the
statute. The same commenter stated that the proposal's rationale that
federal agencies have struggled to enforce State certification
conditions misses the point and that enforcement of certification
conditions may also be initiated by the appropriate States through
State law, citing Delaware Riverkeeper Network v. Secretary of Penn.
Dep't of Envt'l Protection, 833 F.3d 360 (3d Cir. 2016). One commenter
stated that EPA Office of General Counsel opinions have previously
``interpreted [401(d)] broadly to preclude federal agency review of
state certifications,'' citing Roosevelt Campobello Inter. Park v. U.S.
EPA, 684 F.2d 1041, 1056 (1st Cir. 1982) (citing opinions of the EPA
Office of General Counsel on the issue). Some commenters also stated
that to review a condition to determine whether it falls

substantively within the scope of water quality requirements would
create a substantial burden on federal agencies making these types of
determinations.
    Some commenters stated that the proper place for water quality
certifications and their conditions to be challenged is in court,
particularly State court. Some commenters stated that State courts are
the appropriate venue to challenge water quality certifications because
those certifications are issued under State law and State courts know
how best to interpret State law. Some commenters stated that the
legislative history for the 1972 amendments to the CWA repeatedly shows
that Congress intended conflicts regarding the scope of section 401 to
be resolved by State courts, not federal agencies.
    For the reasons articulated in the proposed and final rule
preambles, the EPA disagrees with the proposition that relevant case
law precludes any federal review of certification conditions. The EPA
also disagrees with one commenter's assertion that, as a general
matter, States may independently enforce certification conditions
through State law. See section III.K.2.a of this notice for further
discussion on the enforcement of certification conditions within
federal licenses or permits. Although the proposed requirement was
consistent with the principle that federal agencies have the authority
to reject certifications or conditions that are inconsistent with the
requirements and limitations of section 401 itself (see City of Tacoma,
Wash. v. FERC), the final rule reflects the EPA's conclusion that
courts of competent jurisdiction are better suited to evaluate the
underlying State or Tribal law to determine whether a specific
certification condition or the basis for a denial is within the scope
of certification. The EPA also acknowledges that existing lower court
case law on this topic is mixed, and that requiring federal agencies to
conduct a substantive review to determine whether conditions or denials
are within the scope of certification could create new litigation risk
(including litigation-related staffing and cost burdens) for those
federal agencies and further complexity and uncertainty concerning the
appropriate path for remedying a substantively unlawful certification
condition or denial. The final rule's scope of certification, requiring
that ``conditions'' be within that scope, and requiring certifying
authorities to provide specific information in support of a condition
or a denial, will help provide reviewing courts with the information
and tools necessary to conduct a proper evaluation of certification
conditions and denials.
iii. Remedying Deficient Conditions and Denials
    The proposed rule would have allowed federal agencies to provide
certifying authorities with the opportunity to remedy deficient
conditions and denials. However, in response to public comments and to
increase clarity in the final rule, the Agency is not finalizing these
provisions.
    Commenters expressed a variety of viewpoints about whether federal
agencies can or should provide certifying authorities with the
opportunity to remedy deficient conditions and denials. One commenter
did not support providing certifying authorities with the opportunity
to remedy conditions that are not related to water quality, while other
commenters asserted that the ability to remedy deficient conditions
should be mandatory rather than discretionary. Some commenters
expressed concern regarding timeframes for federal review, notification
to States and Tribes, and opportunity for States and Tribes to remedy
water quality certifications and suggested that the opportunity to cure
a deficient condition could effectively shorten the reasonable period
of time. Commenters also requested that certifying authorities should
be able to remedy deficient conditions regardless of whether the
reasonable period of time has expired, or at least up until the one-
year maximum reasonable period of time specified in the CWA. Some
commenters expressed concern that the proposal did not provide an
administrative appeal process for a certifying authority to dispute
that conditions and denials are in fact ``deficient.''
    The Agency has considered these comments and determined not to
include in the final rule an express allowance for certifying
authorities to remedy deficient conditions after the certification
action is taken. The Agency recognizes and agrees with many of the
implementation and process-related concerns raised by commenters,
including concerns that there may not be sufficient time to remedy
deficient conditions during the established reasonable period of time.
The EPA disagrees with the commenters who asserted that the certifying
authority must be given an opportunity to remedy deficient conditions
even after the reasonable period of time has expired. The final rule
contains additional clarification on procedural and substantive
requirements. These clarifications should provide certifying
authorities with the information and tools necessary to act on
certification requests consistent with section 401 and within the scope
of certification provided in this final rule, reducing the need to
remedy deficient conditions or denials. The EPA has concluded in the
final rule that if a federal licensing or permitting agency wishes to
create procedures whereby certifying authorities may remedy deficient
conditions or denials, it may do so in its own water quality
certification regulations. Such procedures may not be used to exceed
the one-year statutory limit on the reasonable period of time. The
approach in the final rule provides sufficient flexibility to those
federal agencies should they wish to update their water quality
certification regulations to provide additional procedures for
remedying deficient certification conditions or denials.

H. Certification by the Administrator

1. What is the Agency finalizing?
    In the final rule, the Agency is establishing specific procedures
regarding public notice and requests for additional information that
apply only when the EPA is the certifying authority. As discussed in
section III.B of this notice, the Agency proposed to require pre-filing
meeting procedures only when the EPA is the certifying authority, but
the final rule expands the requirement for pre-filing meeting requests
to all project proponents, including federal agencies when they seek
certification for general licenses or permits, regardless of the
certifying authority. The rationale for expanding this practice to all
section 401 certifying authorities as a best practice for all
certification actions is more fully explained in section III.B of this
notice.
2. Summary of Final Rule Rationale and Public Comments
    Section 401(a)(1) of the CWA provides that ``[i]n any case where a
State or interstate agency has no authority to give such a
certification, such certification shall be from the Administrator.'' 33
U.S.C. 1341(a)(1). Currently, all States have authority to implement
section 401 certification programs. However, the EPA acts as the
certifying authority in two scenarios: (1) On behalf of federally
recognized Indian Tribes that have not received TAS for section 401,
and (2) on lands of exclusive federal jurisdiction, such as Denali
National Park. When acting as a certifying authority, the EPA is
subject to the same timeframes and section 401 certification
requirements as other

certifying authorities. This section outlines additional procedures
that apply only when the EPA is the certifying authority.
    The first scenario arises when Tribes do not obtain TAS
authorization for section 401 certifications. As discussed in section
II.F.1 of this notice, Tribes may obtain TAS authorization for purposes
of issuing CWA section 401 certifications. If a Tribe does not obtain
TAS for section 401 certifications, the EPA is responsible to act as
the certifying authority for projects resulting in a potential
discharge into waters of the United States on Tribal land.
    The second scenario arises when the federal government has
exclusive federal jurisdiction over land. The federal government may
obtain exclusive federal jurisdiction in multiple ways, including where
the federal government purchases land with State consent to
jurisdiction, consistent with article 1, section 8, clause 17 of the
U.S. Constitution; where a State chooses to cede jurisdiction to the
federal government; and where the federal government reserved
jurisdiction upon granting statehood. See Collins v. Yosemite Park Co.,
304 U.S. 518, 529-30 (1938); James v. Dravo Contracting Co., 302 U.S.
134, 141-42 (1937); Surplus Trading Company v. Cook, 281 U.S. 647, 650-
52 (1930); Fort Leavenworth Railroad Company v. Lowe, 114 U.S. 525, 527
(1895). For example, the federal government retained exclusive
jurisdiction over Denali National Park in Alaska's Statehood Act.
Alaska Statehood Act, Public Law 85-508, 72 Stat. 339 (1958).
    The EPA's 1971 certification regulations identified circumstances
where the Administrator certifies instead of a State, Tribe, or
interstate authority, and limited the Administrator's certification to
certifying that a potential discharge ``will not violate applicable
water quality standards.'' 40 CFR 121.21. However, this language
reflects the language of section 21(b) of the FWPCA (1970) and is not
consistent with the statutory language of section 401(a), which
requires authorities to certify that the potential discharge will
comply with the applicable provisions of CWA sections 301, 302, 303,
306, and 307. In this final rule, the Agency is modernizing and
clarifying its regulations by finalizing the following text in section
121.13(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.

    In circumstances where the EPA is the certifying authority and the
water body impacted by the proposed discharge does not have any
applicable water quality standards, the EPA's 1971 certification
regulations provided the EPA with an advisory role. 40 CFR 121.24. The
statute does not explicitly provide for this advisory role, and
therefore, this final rule does not include a similar provision.
However, the Agency believes that the technical advisory role provided
in section 401(b) and discussed in section III.J of this notice is
sufficient to authorize the EPA to play an advisory role in such
circumstances. As a result, omitting this text in the final rule is
unlikely to change the Agency's existing practice. 33 U.S.C. 1341(b).
    Commenters provided feedback on a few general aspects of this
topic. Several commenters expressed the importance of the
Administrator's certification authority where a Tribe or interstate
authority lacks such authority. Some of these commenters stressed that
the EPA has a trust obligation to protect water quality for those
Tribes that lack TAS and a responsibility to provide Tribes with an
opportunity for meaningful input. One commenter stated that the EPA had
not provided a list or map of the geographic areas in which it intends
to assert certification authority and requested that the EPA explicitly
identify all lands within its jurisdiction and the basis for EPA's
jurisdictional assertion.
    The EPA has a statutory obligation to act as a certifying
authority, pursuant to CWA section 401(a)(1). Separately, pursuant to
the Agency's 1984 Indian Policy (EPA Policy for the Administration of
Environmental Programs on Indian Reservations, see https://www.epa.gov/tribal/epa-policy-administration-environmental-programs-indian-reservations-1984-indian-policy), the EPA has a responsibility to
coordinate with Tribes when making decisions and managing environmental
programs that affect reservation lands. The EPA takes these obligations
and responsibilities seriously. Consistent with the CWA, the final rule
directs the EPA to act as the certifying authority on behalf of Tribes
that do not have TAS for CWA section 401. Under the final rule, the EPA
does this by determining whether the potential discharge from a
proposed project will comply with water quality requirements, as
defined and explained in section III.E.2.b of this notice. As provided
in section 401(a)(1) and in section 121.7(f) of the final rule, if
there are no water quality requirements applicable to the waters
receiving the discharge from the proposed project, the EPA will grant
certification. The Agency will continue to comply with the EPA Policy
on Consultation and Coordination with Indian Tribes when certifying on
behalf of Tribes and disagrees with commenters who suggested that this
rule would preclude Tribes from contributing meaningful input.
    The EPA does not maintain a national map of lands for which the
Agency serves as the certifying authority, as such borders may on
occasion change as Tribes continue to annex and cede lands. Rather, it
is the duty of the project proponent to determine the appropriate
certifying authority when seeking a section 401 certification. The EPA
acknowledges that there may be potential for jurisdictional overlap
between certifying authorities at certain project sites (e.g., at the
boundaries of Tribal lands), and the Agency believes that the
requirement for project proponents to request a pre-filing meeting with
certifying authorities will provide an opportunity for clarifying
discussions about which agency or organization is the proper certifying
authority.
    Some commenters expressed confusion about whether the ``EPA as the
certifying authority requirements'' in the proposed rule applied to
just the EPA, or to all certifying authorities, and one commenter
asserted that subpart D of the proposed regulatory text should not use
the term ``certifying authority'' to define those instances in which
the EPA is taking action. The Agency disagrees that using the term
``certifying authority'' in subpart D of the proposed regulatory text
is unclear, as subpart D of the proposed rule is titled ``Certification
by the Administrator'' and section 121.11(c) of the proposed rule
explained that for purposes of this subpart the Administrator is the
certifying authority. However, to avoid any potential for confusion,
the EPA has replaced the word ``certifying authority'' with ``the
Administrator'' throughout subpart D of the final rule. As noted above,
when the EPA is the certifying authority, it must comply with all of
the requirements in the final rule, not just subpart D.
    This final rule includes two sets of procedural requirements that
would apply only when the Administrator is the certifying authority:
(1) Clarified public notice procedures, and (2) specific timelines and
requirements for the EPA to request additional information to support a
certification request. These requirements are discussed below and are
included in final rule sections 121.15 and 121.14.

    The EPA also proposed a third set of procedural requirements that
would have applied only when the Administrator is the certifying
authority: Pre-filing meeting request requirements. As explained in
section III.B of this notice, the EPA is finalizing a requirement that
all project proponents, including federal agencies when they seek
certification for general licenses or permits, submit a pre-filing
meeting request to the certifying authority, regardless of whether the
Administrator is the certifying authority. This requirement is now in
section 121.4 of final rule subpart B, rather than in subpart D.
    Some commenters recommended extending all three of these sets of
proposed requirements to all certifying authorities. Other commenters
recommended that none of the proposed requirements should apply to all
certifying authorities. The EPA has considered the conflicting
perspectives in these comments and has concluded in this final rule
that only the pre-filing meeting request requirements will apply to all
certifying authorities, as described in section III.B of this notice.
a. Public Notice Procedure
    Section 401 requires a certifying authority to provide procedures
for public notice, and a public hearing where necessary, on a
certification request. Some courts have held that this includes a
requirement for public notice itself. City of Tacoma, 460 F.3d at 68.
The 1971 certification regulations at 40 CFR part 121.23 described the
EPA's procedures for public notice after receiving a request for
certification. The EPA is updating its regulations to provide greater
clarity to project proponents, federal agencies, and other interested
parties concerning the EPA's procedures for public notice when the
Administrator is the certifying authority.
    Under the final rule, when the Administrator is the certifying
authority, the Agency will provide appropriate public notice, within 20
days of receipt of a certification request, to parties known to be
interested. If the EPA in its discretion determines that a public
hearing is appropriate or necessary, the Agency will, to the extent
practicable, give all interested and affected parties the opportunity
to present evidence or testimony at a public hearing.
    One commenter stated that the public should be kept informed of the
section 401 process and proposed project plans, especially for large
projects. Another commenter suggested that public participation
requirements in the section 401 certification review process should be
expanded, which they maintained would lead to better identification of
projects that should be denied certification because of adverse effects
on water quality. A few commenters disagreed with the proposition that
public notice should be limited to parties known to be interested and
asserted that notice should be provided to the general public. One
commenter suggested that the public should receive a minimum of 30-
days' notice prior to a hearing, or another timeframe tied to the date
when information is made available for public review.
    The EPA appreciates the public commenters who provided feedback on
the public notice process for when the EPA is the certifying authority.
The public notice and hearing process in the final rule will ensure
that the Agency keeps the public informed about the section 401
certification process and proposed project plans. The proposed rule
included a list of potentially interested parties, such as Tribal,
State, county, and municipal authorities, heads of State agencies
responsible for water quality, adjacent property owners, and
conservation organizations. To avoid artificially or unintentionally
narrowing the universe of potentially interested parties, this list is
not included in the final rule. The procedures in the final rule,
including providing notice to interested parties, will provide
sufficient public notice, as required in section 401, and will provide
the public with an opportunity to inform the EPA's certification
decision through public comments. Under the final rule, the Agency may
also, at its discretion, determine whether a public hearing is
appropriate and necessary. In such cases, all interested and affected
parties would be given the opportunity to present evidence or testimony
at a public hearing. The Agency is not prescribing a single timeframe
for the length of public notice under the final rule. The appropriate
timeframe for notice and comment is more appropriately determined on a
case-by-case basis, considering project-specific characteristics as
well as the length of the established reasonable period of time. In
general, the EPA anticipates that public notices will provide for a 30-
day comment period; however, comment periods as short as 15 days or as
long as 60 days may be warranted in some cases, based on the nature of
the project and the reasonable period of time. The public hearing may
be conducted in-person, or remotely (through telephone, online, or
other virtual platforms), as deemed appropriate by the Agency.
b. Requests for Additional Information
    The definition of a certification request in this final rule
identifies the information that project proponents are required to
provide to certifying authorities when they submit a certification
request. However, in some cases, the EPA may conclude that additional
information is necessary to determine that the potential discharge will
comply with water quality requirements (as defined at section 121.1(n)
of the final rule). Section 401 does not expressly address the issue of
whether and under what circumstances a certifying authority may request
additional information to review and act on a certification request.
The EPA concluded that it is reasonable and consistent with the CWA's
statutory framework that when the Administrator is the certifying
authority, the Agency be afforded the opportunity to seek additional
information necessary to do its job. However, consistent with the
statute's firm timeline to act on a certification request, it is also
reasonable to assume that Congress intended some appropriate limits be
placed on the timing and nature of such requests. This final rule fills
the statutory gap and provides a structure for the Administrator as the
certifying authority to request additional information and for project
proponents to timely respond. Consistent with the proposal, this final
rule includes procedural requirements and timeframes for action that
will provide transparency and regulatory certainty for the Agency and
project proponents. However, in response to public comments and to
increase clarity, the Agency has provided enhancements to the final
rule text.
    Some commenters stated that the procedures proposed for when the
EPA is the certifying authority would inhibit the EPA from seeking
additional information on water quality effects relevant to making a
certification decision. Some of these commenters stated that this would
lead to unnecessary denials of certification where, had better
information been developed, a certification may have been granted. The
Agency disagrees with the suggestion that the procedures proposed for
when the EPA is the certifying authority would lead to certification
decisions based on incomplete information. Consistent with the
proposal, the EPA must request information within 30 days of receipt.
The final rule includes additional

clarifications that if the EPA finds it necessary to request additional
information, then the EPA must make an initial request within 30 days
of receipt. Nothing in the regulation precludes the EPA from making
additional information requests at a later point in the process after
an initial request is made, so long as that information can be
developed by the project proponent and considered by the EPA within the
reasonable period of time. This final rule acknowledges that certifying
authorities like the EPA need relevant information as early as possible
to review and act on section 401 certification requests within the
reasonable period of time. As discussed in section III.B of this
notice, the pre-filing meeting request requirement under this final
rule is intended to ensure that the EPA has an opportunity to engage
with the project proponent early, learn about the proposed project, and
consider what, if any, additional information might be needed from the
project proponent.
    Under the final rule, if the Agency needs additional information,
an initial request for information must be made to the project
proponent within 30 days after the receipt of a certification request.
Additional information may include, for example, more detail about the
contents of the potential discharge from the proposed project or
specific information about treatment or waste management plans or
additional details about discharges associated with the operation of
the facility. The final rule does not preclude the Agency from making
additional requests for information, but such requests for information
must still comply with the requirements outlined below in this section
of the final rule preamble.
    The EPA is finalizing a provision that when the Administrator is
the certifying authority, the Agency can request only additional
information that is within the scope of certification and is directly
related to a potential discharge from the proposed project and its
potential effect on the receiving waters. Some commenters supported the
proposal to limit additional information requests to information within
the scope of the section 401 certification, while other commenters
disagreed with the limitation. The Agency considered these and other
comments and is finalizing this provision with minor modifications to
provide clarity and certainty when the EPA is the certifying authority.
    Several commenters stated that the proposal would not distinguish
between complex and simple projects and noted that the type of
information needed to develop a certification for a complex project,
such as a 30- or 50-year FERC license, would not be the same as that
needed for a shorter-term or simpler project. The EPA agrees with
commenters that information needs may differ depending on the
complexity of the proposed project and other project-specific factors.
The final rule provides sufficient flexibility for the Administrator to
request project-specific information to help inform the certification
decision. To ensure that the Agency's action remains within the scope
of certification, the EPA has determined that any additional
information requested must be within the scope of certification and
must be directly related to the discharge from the proposed project and
its potential effect on receiving waters. In addition to ensuring that
the Agency acts within the scope of certification, limiting the type of
information that the EPA may request as the certifying authority
eliminates unnecessary and burdensome requests. Doing so also limits
EPA review of information irrelevant to the Agency's decision-making
process.
    The EPA is also finalizing a provision that when the Administrator
is serving as the certifying authority, the Agency can request only
additional information that can be collected or generated within the
established reasonable period of time. Some commenters disagreed with
this provision, and one commenter asserted that this provision would
contravene the CWA and the statute's emphasis on protecting human
health and the environment. Several commenters stated that the proposal
defers to a project proponent to determine what information may
reasonably be developed during the ``reasonable period of time,''
because the project proponent could claim that it would take too long
to collect or generate the information.
    The Agency disagrees with commenters that suggested that this
provision defers to project proponents to determine what information
may be developed during the reasonable period of time. In most cases,
it should be objectively known whether certain information can be
generated or collected within the reasonable period of time. For
example, a multi-year study cannot be conducted within a 12-month
reasonable period of time. Similarly, a 180-day study cannot be
conducted within a 60-day reasonable period of time. In the event of
disputes between the EPA and the project proponent about whether
certain new information can be collected or generated within the
reasonable period of time, the EPA will engage directly and in good
faith with the project proponent to resolve the dispute.
    This final rule is also intended to address issues that have caused
delays in certifications and project development and that have resulted
in protracted litigation. Although these provisions apply only when the
EPA is the certifying authority, they may serve as models for other
certifying authorities. For example, the Agency is aware that some
certifying authorities have requested ``additional information'' in the
form of multi-year environmental investigations and studies, including
completion of a NEPA review, before the authority would even begin
review of the certification request.\62\ Consistent with the plain
language of section 401, under this final rule, when the Administrator
is acting as the certifying authority, such requests from the EPA would
not be authorized because they would extend the statutory reasonable
period of time, which is not to exceed one year. This final rule
provides clarity that, while additional information requests may be a
necessary part of the certification process, such requests may not
result in extending the period of time beyond which the CWA requires
the Agency to act.
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    \62\ Some stakeholders have suggested that it may be challenging
for a state to act on a certification request without the benefit of
review under NEPA or a similar state authority. See, e.g., Cal. Pub.
Res. Code Section 21000 et seq.; Wash. Rev. Code Section 43.21C.150.
Consistent with the EPA's 2019 Guidance, the EPA recommends that
certifying authorities do not need to delay action on a
certification request until a NEPA review is complete. The
environmental review required by NEPA has a broader scope than that
required by section 401. For example, the NEPA review evaluates
potential impacts to all environmental media, as well as potential
impacts from alternative proposals that may not be the subject of a
federal license or permit application. By comparison, a section 401
certification review is far more narrow and is focused on assessing
potential water quality impacts from the proposed federally licensed
or permitted project. Additionally, many NEPA reviews have taken
more than one year to complete. Waiting for a NEPA process to
conclude may result in waiver of the certification requirement for
failure to act within a reasonable period of time. To the extent
that State or Tribal implementing regulations may have required a
NEPA review to be completed as part of a section 401 certification
review, the EPA encourages certifying authorities to update those
regulations to incorporate deadlines consistent with the reasonable
period of time established under the CWA, or to decouple the NEPA
review from the section 401 process, so as to ensure timely action
on section 401 certification requests and to avoid waiver by the
certifying authority.
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    Under this final rule, when the Administrator is acting as the
certifying authority, in any request for additional information, the
EPA must include a deadline for the project proponent to respond. The
deadline must allow sufficient time for the Agency to review

the additional information once it is received, and to act on the
certification request within the established reasonable period of time.
    Many commenters asserted that the proposed rule would not require
project proponents to timely respond to requests for additional
information. Some commenters requested that the EPA clearly state that
failure by the project proponent to complete a section 401
certification request or provide requested additional information
within a specified time period should be grounds for denial of
certification.
    The Agency disagrees with the suggestion that the project proponent
would not be required to timely respond to requests for additional
information. Under the final rule, when the Administrator is the
certifying authority, project proponents must submit requested
information by the EPA's deadline. The Agency has clarified in section
121.14(e) that a project proponent's failure to provide additional
information does not prevent the Administrator from taking action on a
certification request. If the project proponent fails to submit the
requested information, the Agency may conclude that it does not have
sufficient information to certify that a potential discharge will
comply with applicable water quality requirements and may therefore
deny the certification request. The EPA may also use its expertise to
evaluate the potential risk associated with the remaining information
or data gap and to consider granting certification within the
reasonable period of time with conditions to address those potential
risks. The EPA expects that when the Administrator is the certifying
authority, these procedures will provide clarity and regulatory
certainty to the EPA and project proponents. The EPA notes that States
and Tribes may choose to adopt similar provisions to ensure that all
certifying authorities are working effectively and in good faith to act
on certification requests within the reasonable period of time, and
that denials based on a lack of information are not done simply for
administrative purposes but because additional information is needed to
assure that the discharge from the proposed project will comply with
water quality requirements and the lack of information cannot be
addressed by appropriate certification conditions. The EPA further
notes that under the proposal and this final rule, certifying
authorities are not obligated to act on incomplete certification
requests. If a certification request is not complete as required by
this final rule, the reasonable period of time does not begin.

I. Determination of Effect on Neighboring Jurisdictions

1. What is the Agency finalizing?
    Consistent with the proposal, under the final rule, if the EPA in
its discretion determines that a neighboring jurisdiction may be
affected by a discharge from a federally licensed or permitted project,
the EPA must notify the affected jurisdiction, the certifying
authority, and the federal agency within 30 days of receiving the
notice of the certification from the federal agency. The final rule
includes certain enhancements to the proposed rule to increase clarity
and regulatory certainty, as explained below in this section of the
final rule preamble.
2. Summary of Final Rule Rationale and Public Comment
    Section 401(a)(2) requires federal agencies to immediately notify
the EPA when a certification is issued by a certifying authority for a
federal licensing or permitting application. Section 401(a)(2) also
provides a mechanism for the EPA to notify States and authorized Tribes
where the EPA has determined the discharge from a proposed federally
licensed or permitted project subject to section 401 may affect the
quality of their waters. The EPA's 1971 certification regulations
established procedural requirements for this process but required
updating to align with CWA section 401 and to establish additional
clarity. The EPA recognizes that federal agencies may have different
processes to satisfy this requirement and will continue to work with
these agencies to ensure that the Agency is notified of all
certifications. The final rule does not contain a standardized process
for federal agencies to immediately notify the EPA when certifications
are issued. The EPA expects federal agencies to develop notification
processes as they update their certification regulations in accordance
with the Executive Order. The final rule provides flexibility for
federal agencies to develop processes and procedures that work best
within their licensing or permitting programs. Additionally, the Agency
has made minor, non-substantive modifications to the regulatory text at
section 121.12(a) to clarify that the federal agency's statutory
obligation to notify the EPA is triggered when the federal agency
receives a federal license or permit application and the related
certification. The text of section 401(a)(2) provides that the federal
agency must ``immediately'' notify the EPA of such application and
certification. To aid in clarity and implementation, the Agency
reasonably interprets ``immediately'' to mean within five days of the
Federal agency's receiving notice of the certification. 33 U.S.C.
1341(a)(2). The EPA believes that, in the context of section 401(a)(2),
five days is a reasonable interpretation of the statutory term
``immediately.'' The federal agency needs some amount of time to
process receipt of the license application and certification from the
project proponent or certifying authority, review the received
materials (which might be substantial), and then transmit notice to the
appropriate EPA office. Allowing for five days is a prompt yet
reasonable period of time to complete this process. Moreover, unlike
emergency response or notifications provisions in environmental
statutes, the provisions in CWA 401 governing certifications do not
appear to require an emergency response that might--in other contexts--
justify interpreting ``immediately'' to require a shorter period of
time to act. As provided in section 121.9(c) of the final rule, the
federal agency must provide a separate written notification of any
waiver determination; this notification need not occur prior to
transmitting the certification to EPA under section 121.12(a) of the
final rule.
    This final rule affirms the EPA's interpretation that section
401(a)(2) establishes authority for the Agency to determine in its
discretion whether the discharge from a certified project may affect
the water quality in a neighboring jurisdiction. One public commenter
agreed with the EPA's interpretation and discretion concerning the
determination whether a project may affect downstream States under CWA
section 401(a)(2). Other commenters stated that even if the EPA's
discretion is supported by the language of the CWA, the unbounded scope
of the discretion is not consistent with the statute and would not
provide accountability to neighboring States, the project proponent, or
the public without additional clarification. Some commenters stated
that the EPA should provide notice to neighboring jurisdictions in
every instance, thereby allowing neighboring jurisdictions who are best
situated to understand their own water quality concerns to make a
determination as to whether there would be an effect on water quality.
Some commenters stated that the rule should set forth specific factors
that the EPA would consider in making a determination or that the EPA's

determination should be made in consultation with neighboring
jurisdictions. Other commenters requested that the EPA develop
regulations or guidance that would explain when the EPA would exercise
its authority to notify downstream jurisdictions.
    The EPA appreciates these comments and recognizes the desire for
more prescriptive and specific provisions concerning the determination
of potential effects on neighboring jurisdictions. As a general matter,
the EPA intends to use its technical expertise from administering the
CWA over nearly fifty years to evaluate whether a certified project may
affect a neighboring jurisdiction. At this time, the EPA is not
establishing specific provisions in the final rule, but the EPA may in
the future take action to further clarify this provision via either
additional rulemaking or guidance.
    The final rule modifies the EPA's 1971 certification regulations to
mirror the CWA in describing the EPA's procedural duties regarding
neighboring jurisdictions. The statute provides that, following notice
of a section 401 certification, the Administrator shall within 30 days
notify a potentially affected downstream State or authorized Tribe
``[w]henever such a discharge may affect, as determined by the
Administrator, the quality of the waters of any other State.'' 33
U.S.C. 1341(a)(2) (emphasis added). Because the EPA's duty to notify is
triggered only when the EPA has made a determination that a discharge
``may affect'' a downstream State or Tribe, the section 401(a)(2)
notification requirement is contingent. It is not a duty that applies
to the EPA with respect to all certifications, rather it applies
where--exercising its discretion--the EPA has determined that the
certified discharge ``may affect'' a neighboring jurisdiction's waters.
This provision is being finalized with minor modifications to increase
clarity regarding the EPA's discretionary determination. The Agency has
made minor, non-substantive modifications to the regulatory text at
section 121.12(b) to clarify that the 30-day review period is triggered
after the Administrator receives notice from the federal agency.
    The EPA is also clarifying the section 401(a)(2) notification
process in this final rule, as such procedures were not described in
sufficient detail in the 1971 certification regulations. If, as
described above, the EPA determines that a neighboring jurisdiction may
be affected by a certified discharge from a federally licensed or
permitted project, the EPA must notify the affected jurisdiction,
certifying authority, federal agency, and project proponent within 30
days of receiving the notice that certification was issued for a