[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Proposed Rules]
[Pages 44080-44122]
[FR Doc No: 2019-17555]

Vol. 84

Thursday,

No. 163

August 22, 2019

Part III

Environmental Protection Agency

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40 CFR Part 121

Updating Regulations on Water Quality Certification; Proposed Rule

Federal Register / Vol. 84 , No. 163 / Thursday, August 22, 2019 /
Proposed Rules

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 121

[EPA-HQ-OW-2019-0405; FRL-9997-82-OW]
RIN 2040-AF86

Updating Regulations on Water Quality Certification

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is publishing for
public comment a proposed rule providing updates and clarifications to
the substantive and procedural requirements for water quality
certification under Clean Water Act (CWA or the Act) section 401. CWA
section 401 is a direct grant of authority to states (and tribes that
have been approved for ``treatment as a state'' status) to review for
compliance with appropriate federal, state, and tribal water quality
requirements any proposed activity that requires a federal license or
permit and may result in a discharge to waters of the United States.
This proposal is intended to increase the predictability and timeliness
of section 401 certification by clarifying timeframes for
certification, the scope of certification review and conditions, and
related certification requirements and procedures.

DATES: Comments must be received on or before October 21, 2019.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-OW-
2019-0405, at https://www.regulations.gov. Follow the online
instructions for submitting comments. Once submitted, comments cannot
be edited or removed from Regulations.gov. The EPA may publish any
comment received to its public docket. Do not submit electronically any
information you consider to be Confidential Business Information (CBI)
or other information whose disclosure is restricted by statute.
Multimedia submissions (audio, video, etc.) must be accompanied by a
written comment. The written comment is considered the official comment
and should include discussion of all points you wish to make. The EPA
will generally not consider comments or comment contents located
outside of the primary submission (i.e., on the web, cloud, or other
file sharing system). For additional submission methods, the full EPA
public comment policy, information about CBI or multimedia submissions,
and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Lauren Kasparek, Oceans, Wetlands, and
Communities Division, Office of Water (4504-T), Environmental
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460;
telephone number:<PHONE_NUMBER>; email address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

Table of Contents

I. General Information
    A. How can I get copies of this document and related
information?
    B. Under what legal authority is this proposed rule issued?
    C. How should I submit comments?
II. Background
    A. Executive Summary
    B. Executive Order 13868: Promoting Energy Infrastructure and
Economic Growth
    C. Pre-Proposal Stakeholder Engagement
    D. Guidance Document
    E. Effect on Existing Federal, State, and Tribal Regulations
    F. Legal Background
    1. The Clean Water Act
    2. The EPA's Role in Implementing Section 401
    3. The EPA's Existing Certification Regulations
    4. Judicial Interpretations of Section 401
    a. U.S. Supreme Court Decisions
    i. P.U.D. No. 1 of Jefferson County
    ii. S.D. Warren
    b. Circuit Court Decisions
    5. Administrative Law Principles
    6. Legal Construct for the Proposed Rule
    a. Scope of Certification
    i. Water Quality
    ii. Activity Versus Discharge
    iii. Discharges From Point Sources to Waters of the United
States
    b. Timeline for Section 401 Certification Analysis
III. Proposed Rule
    A. When Section 401 Certification Is Required
    B. Certification Request/Receipt
    C. Certification Actions
    D. Appropriate Scope for Section 401 Certification Review
    E. Timeframe for Certification Analysis and Decision
    F. Contents and Effect of a Certification
    G. Certification by the Administrator
    1. Public Notice Procedure
    2. Pre-filing Meeting Procedure
    3. Requests for Additional Information
    H. Determination of Effect on Neighboring Jurisdictions
    I. EPA's Role in Review and Advice
    J. Enforcement
    K. Modifications
IV. Economic Analysis
V. Statutory and Executive Order Reviews
    A. Executive Order 13771: Reducing Regulation and Controlling
Regulatory Costs
    B. Executive Order 12866: Regulatory Planning and Review;
Executive Order 13563: Improving Regulation and Regulatory Review
    C. Paperwork Reduction Act
    D. Regulatory Flexibility Act
    E. Unfunded Mandates Reform Act
    F. Executive Order 13132: Federalism
    G. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
    H. Executive Order 13045: Protection of Children From
Environmental Health and Safety Risks
    I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
    J. National Technology Transfer and Advancement Act
    K. Executive Order 12898: Federal Actions To Address
Environmental Justice in Minority Populations and Low-Income
Populations

I. General Information

A. How can I get copies of this document and related information?

    1. Docket. An official public docket for this action has been
established under Docket ID No. EPA-HQ-OW-2019-0405. The official
public docket consists of the documents specifically referenced in this
action, and other information related to this action. The official
public docket is the collection of materials that is available for
public viewing at the OW Docket, EPA West, Room 3334, 1301 Constitution
Ave. NW, Washington, DC 20004. This Docket Facility is open from 8:30
a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The
OW Docket telephone number is<PHONE_NUMBER>. A reasonable fee will be
charged for copies.
    2. Electronic Access. You may access this Federal Register document
electronically under the ``Federal Register'' listings at https://www.regulations.gov. An electronic version of the public docket is
available through EPA's electronic public docket and comment system,
EPA Dockets. You may access EPA Dockets at https://www.regulations.gov
to view public comments as they are submitted and posted, access the
index listing of the contents of the official public docket, and access
those documents in the public docket that are available electronically.
For additional information about EPA's public docket, visit the EPA
Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
Although not all docket materials may be available electronically, you
may still access any of the publicly available docket materials through
the Docket Facility.

B. Under what legal authority is this proposed rule issued?

    The authority for this action is the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., including section 401 and 501(a).

C. How should I submit comments?

    Throughout this document, the EPA solicits comment on a number of
issues related to the proposed rulemaking. Comments on this proposed
rulemaking should be submitted to Docket ID No. EPA-HQ-OW-2019-0405 at
https://www.regulations.gov per the online instructions for submitting
comments and the information provided in ADDRESSES, above.
    As discussed in section II.C in this preamble, this proposed rule
is the outgrowth of extensive outreach efforts, including requests for
recommendations, and the EPA has taken recommendations received into
account in developing this proposal. In developing a final rule, the
EPA will be considering comments submitted on this proposal. Persons
who wish to provide views or recommendations on this proposal and have
them considered as part of this rulemaking process must provide
comments to the EPA as part of this comment process. To facilitate the
processing of comments, commenters are encouraged to organize their
comments in a manner that corresponds to the outline of this proposal.

II. Background

A. Executive Summary

    Congress enacted section 401 of the CWA to provide states and
authorized tribes with an important tool to help protect water quality
of federally regulated waters within their borders in collaboration
with federal agencies. Under section 401, a Federal agency may not
issue a license or permit to conduct any activity that may result in
any discharge into waters of the United States,\1\ unless the state or
authorized tribe where the discharge would originate either issues a
section 401 water quality certification finding compliance with
existing water quality requirements or waives the certification
requirement. As described in greater detail below, section 401
envisions a robust state and tribal role in the federal licensing or
permitting process where local authority may otherwise be preempted by
federal law, but places limitations on how that role may be implemented
to maintain an efficient process, consistent with the overall
cooperative federalism construct established by the CWA as explained
below in section II.F.1 in this preamble.
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    \1\ The CWA, including section 401, uses ``navigable waters'',
defined as ``waters of the United States, including territorial
seas.'' 33 U.S.C. 1362(7). This proposal uses ``waters of the United
States'' throughout. The EPA is currently in the process of revising
the definition of waters of the United States via rulemaking and
expects the final definition of the term to control in all CWA
contexts.
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    The plain language of section 401 provides that a state or
authorized tribe must act on a section 401 certification request within
a reasonable period of time, which shall not exceed one year.\2\
Section 401 does not guarantee a state or tribe a full year to act on a
certification request. The statute only grants as much time as is
reasonable, and federal licensing or permitting agencies, in their
discretion, may establish a period of time shorter than one year if the
federal licensing and permitting agencies determine that a shorter
period is ``reasonable.'' 33 U.S.C. 1341(a)(1). The CWA provides that
the timeline for action on a section 401 certification begins ``upon
receipt'' of a certification request. Id. If a state or tribe does not
grant, grant with conditions, deny, or expressly waive the section 401
certification within a reasonable time period as determined by the
federal licensing and permitting agencies, section 401 authorizes the
federal licensing and permitting agencies to find that the state or
tribe waived the section 401 certification requirement and issue the
federal license or permit. Id. at 1341; 40 CFR 121.16(b). If the
certification requirement has been waived and the federal license or
permit is issued, any subsequent action by a state or tribe to grant,
grant with condition, or deny section 401 certification has no legal
force or effect.
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    \2\ ``If the State, interstate agency, or Administrator, as the
case may be, fails or refuses to act on a request for certification,
within a reasonable period of time (which shall not exceed one year)
after receipt of such request, the certification requirements of
this subsection shall be waived with respect to such Federal
application.'' 33 U.S.C. 1341(a)(1); see also Hoopa Valley Tribe v.
FERC, 913 F.3d 1099 (D.C. Cir. 2019).
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    Section 401 authorizes states and tribes to certify that a
discharge to waters of the United States that may result from a
proposed activity will comply with certain enumerated sections of the
CWA, including the effluent limitations and standards of performance
for new and existing discharge sources (sections 301, 302 and 306 of
the CWA), water quality standards and implementation plans (section
303), and toxic pretreatment effluent standards (section 307). When
granting a section 401 certification, states and tribes are directed by
CWA section 401(d) to include conditions, including ``effluent
limitations \3\ and other limitations, and monitoring requirements''
that are necessary to assure that the applicant for a federal license
or permit will comply with applicable provisions of CWA sections 301,
302, 306 and 307, and with ``any other appropriate requirement of State
law.''
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    \3\ This proposal does not interpret ``effluent limitations'' to
be synonymous with ``effluent limitation guidelines'', the pollution
control technology-based limits developed under section 304, 306,
and 307 of the CWA, but also does interpret the term to include, for
example, water quality based effluent limits required under sections
301 and 303.
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    As the agency charged with administering the CWA,\4\ the EPA is
responsible for developing a common framework for certifying
authorities to follow when completing section 401 certifications. See
33 U.S.C. 1251(d), 1361(a). In 1971, the EPA promulgated at 40 CFR part
121 a common framework for implementing the certification provisions
pursuant to section 21(b) of the Federal Water Pollution Control Act of
1948 (FWCPA), but the EPA never updated that framework to reflect the
1972 amendments to the FWCPA (commonly known as the Clean Water Act or
CWA), which created section 401. Over the last several years,
litigation over the section 401 certifications for several high-profile
infrastructure projects have highlighted the need for the EPA to update
its regulations to provide a common framework for consistency with CWA
section 401 and to give project proponents, certifying authorities, and
federal licensing and permitting agencies additional clarity and
regulatory certainty.
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    \4\ The EPA co-administers section 404 with the Corps.
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    In April 2019, the President issued Executive Order 13868 titled
Promoting Energy Infrastructure and Economic Growth, which directed the
EPA to engage with states, tribes, and federal agencies and update the
Agency's outdated guidance and regulations, including the existing
certification framework. Consistent with Executive Order 13868 and the
modern CWA, this proposal provides an updated common framework that is
consistent with the modern CWA and which seeks to increase
predictability and timeliness.

B. Executive Order 13868: Promoting Energy Infrastructure and Economic
Growth

    On April 10, 2019, the President issued Executive Order 13868
titled Promoting Energy Infrastructure and Economic Growth. Its purpose
is to encourage greater investment in energy

infrastructure in the United States by promoting efficient federal
permitting processes and reducing regulatory uncertainty. The Executive
Order identifies the EPA's outdated federal guidance and regulations as
one source of confusion and uncertainty hindering the development of
energy infrastructure. As noted above, the EPA's current certification
regulations (codified at 40 CFR part 121) have not been updated since
they were promulgated in 1971, pursuant to section 21(b) of the FWPCA.
Additionally, at the time the Executive Order was issued, the EPA's
only guidance to the public on section 401 implementation was an
interim handbook titled Clean Water Act Section 401 Water Quality
Certification: A Water Quality Protection Tool for States and Tribes,
which had not been updated since it was released in 2010 and therefore
no longer reflected the current case law interpreting CWA section 401.
    The Executive Order directed the EPA to review CWA section 401 and
the EPA's existing certification regulations and interim guidance,
issue new guidance to states, tribes, and federal agencies within 60
days of the Order, and propose new section 401 regulations within 120
days of the Order. The Executive Order also directed the EPA to consult
with states, tribes, and relevant federal agencies while reviewing its
existing guidance and regulations to identify areas that would benefit
from greater clarity.
    As part of its review, the Executive Order directed the EPA to take
into account the federalism considerations underlying section 401 and
to focus its attention on the appropriate scope of water quality
reviews and conditions, the scope of information needed to act on a
certification request in reasonable period of time, and expectations
for certification review times. Section 3.a. of Executive Order 13868
Promoting Energy Infrastructure and Economic Growth. Following the
release of the EPA's new guidance document, the Executive Order
directed the EPA to lead an interagency review of all existing federal
regulations and guidance pertaining to section 401 to ensure
consistency with the EPA's new guidance and rulemaking efforts. The
Executive Order directs all federal agencies to update their existing
section 401 guidance within 90 days after publication of the EPA's new
guidance documents. Additionally, the Executive Order directs other
federal agencies to initiate rulemaking, if necessary, within 90 days
of the completion of the EPA's rulemaking, to ensure their own CWA
section 401 regulations are consistent with the EPA's new rules and
with the Executive Order's policy goals. Although the Executive Order
focuses on section 401's impact on the energy sector, section 401
applies broadly to any proposed federally licensed or permitted
activity that may result in any discharge into a water of the United
States. Therefore, updates to the EPA's existing certification
regulations and guidance are relevant to all water quality
certifications.
    Additional information on the EPA's state and tribal engagement is
discussed in section II.C in this preamble, and additional information
on the EPA's updated guidance document is discussed in section II.D in
this preamble.

C. Pre-Proposal Stakeholder Engagement

    Prior to the release of Executive Order 13868 Promoting Energy
Infrastructure and Economic Growth, the Agency's 2018 Spring Unified
Agenda of Regulatory and Deregulatory Actions announced that the Agency
was considering, as a long-term action, the issuance of a notice
soliciting public comment on whether the section 401 certification
process would benefit from a rulemaking to promote nationwide
consistency and regulatory certainty for states, authorized tribes, and
stakeholders. While the Agency has decided to issue this proposal
instead of the notice, that entry was the first indication to the
public of the Agency's interest in revising its section 401
certification process.
    On August 6, 2018, the Agency sent a letter to the Environmental
Council of the States, the Association of Clean Water Administrators,
the Association of State Wetlands Managers, the National Tribal Water
Council, and the National Tribal Caucus indicating the Agency's
interest in engaging on potential clarifications to the section 401
process. The Agency discussed section 401 at several association
meetings and calls in Fall 2018 and Spring 2019 and received
correspondence from several stakeholders between Fall 2018 and Spring
2019. Early stakeholder feedback received prior to the issuance of the
Executive Order, as well as presentations given between Fall 2018 and
Spring 2019, may be found in the pre-proposal recommendations docket
(Docket ID No. EPA-HQ-OW-2018-0855).
    Following the release of the Executive Order, the EPA continued its
effort to engage with states and tribes on how to increase clarity in
the section 401 certification process, including creating a new website
to provide information on section 401 and notifying state environmental
commissioners and tribal environmental directors of a two-part webinar
series for states and tribes. See www.epa.gov/cwa-401. The first
webinar was held on April 17, 2019, and discussed the Executive Order,
the EPA's next steps, and solicited feedback from states and tribes
consistent with the Executive Order. Shortly thereafter, the EPA
initiated formal consultation efforts with states and tribes regarding
provisions that require clarification within section 401 of the CWA and
related federal regulations and guidance. Consultation occurred from
April 24, 2019 through May 24, 2019, and the EPA opened a docket for
pre-proposal recommendations during this time period (Docket ID No.
EPA-HQ-OW-2018-0855). On May 7, 2019 and May 15, 2019, the EPA held
tribal informational webinars, and on May 8, 2019, the EPA held an
informational webinar for both states and tribes. See section V in this
preamble for further details on the Agency's federalism and tribal
consultations. Questions and recommendations from the webinar attendees
are available in the pre-proposal docket (Docket ID No. EPA-HQ-OW-2018-
0855).
    During the consultation period, the EPA participated in phone calls
and in-person meetings with inter-governmental and tribal associations
including the National Governor's Association and National Tribal Water
Council. The EPA also attended the EPA Region 9 Regional Tribal
Operations Committee meeting on May 22, 2019, to solicit
recommendations for the proposed rule. The EPA engaged with federal
agencies that issue permits or licenses subject to section 401,
including the United States Department of Agriculture, Federal Energy
Regulatory Commission, Army Corps of Engineers, Alcohol and Tobacco Tax
and Trade Bureau, and Nuclear Regulatory Commission through several
meetings and phone calls to gain additional feedback from federal
partners.
    At the webinars and meetings, the EPA provided a presentation and
sought input on areas of section 401 that may require updating or
benefit from clarification, including timeframe, scope of certification
review, and coordination among certifying authorities, federal
licensing or permitting agencies, and project proponents. The EPA
requested input on issues and process improvements that the EPA might
consider for a future rule. Participant recommendations from webinars,

meetings, and the docket represent a diverse range of interests,
positions and suggestions. Several themes emerged throughout this
process, including support for ongoing state and tribal engagement,
support for retention of state and tribal authority, and suggestions
for process improvements for CWA section 401 water quality
certifications.
    Tribes provided several specific recommendations regarding the
proposed rulemaking. First, some tribes requested the EPA better
clarify its responsibilities under CWA section 401(a)(2). These tribes
expressed the importance of considering impacts to neighboring
jurisdictions during the section 401 certification process. Tribes also
emphasized that section 401 certification decision-making should not be
prolonged such that section 401 certifications delay implementation of
updated water quality standards. Tribes also requested that any changes
to the section 401 certification process should maintain tribal
authority and sovereignty. Finally, tribes emphasized the importance of
meaningful consultation and engagement throughout the rulemaking
process.
    The EPA received several specific recommendations regarding process
improvements for section 401 certifications. First, states, cross-
cutting state organizations, and industry groups expressed support for
pre-application meetings and information-sharing among project
proponents, certifying authorities, and federal licensing and
permitting agencies. Additionally, state officials, tribal officials,
and cross-cutting state organizations cited deficient certification
applications as a primary cause for delays in the certification
decision-making process. Permit applicants suggested the lack of clear
state processes and prolonged information requests contributed
significantly to the delay in the 401 certification process. The Agency
was also made aware of relatively low staffing availability in many
state and tribal 401 certification programs. Stakeholders suggested
that pre-application meetings as well as explicit state processes and
checklists could increase the quality of certification applications.
    Additionally, state and tribal officials as well as cross-cutting
state organizations cautioned the Agency against mandating a specific
reasonable period of time (e.g., 60 days) that would apply to all types
of projects. These recommendations encouraged the EPA to maintain the
authority of federal licensing and permitting agencies to determine the
appropriate reasonable period of time.
    Finally, the EPA received pre-proposal recommendations covering a
wide variety of viewpoints on the certifying authority's scope of
certification review. The EPA considered all of this information and
stakeholder input, including all 72 recommendations submitted to the
docket during development of this proposed rule, and feedback received
prior to the initiation of and during the formal consultation period.

D. Guidance Document

    Pursuant to Executive Order 13868, the Agency released updated
section 401 guidance on June 7, 2019, available at https://www.epa.gov/cwa-401/clean-water-act-section-401-guidance-federal-agencies-states-and-authorized-tribes. Coincident with the release of the new guidance,
EPA rescinded the 2010 document titled Clean Water Act Section 401
Water Quality Certification: A Water Quality Protection Tool for States
and Tribes (``Interim Handbook''). The 2010 Interim Handbook had not
been updated or revised since its release in 2010, and therefore no
longer reflected the current case law interpreting CWA section 401, nor
had it been finalized.
    The updated guidance provides information and recommendations for
implementing the substantive and procedural requirements of section
401, consistent with the areas of focus in the Executive Order. More
specifically, the guidance focuses on aspects of the certification
process, including the timeline for review and decision-making and the
appropriate scope of review and conditions. Additionally, the guidance
provides recommendations for how federal licensing and permitting
agencies, states, and tribes can better coordinate to improve the
section 401 certification process. The emphasis on early coordination
and collaboration to increase process efficiency aligns with other
agency directives under Executive Order 13807, Establishing Discipline
and Accountability in the Environmental Review and Permitting Process
for Infrastructure Projects, or simply, the ``One Federal Decision''
policy. For major infrastructure projects, the One Federal Decision
policy directs federal agencies to use a single, coordinated process
for compliance with the National Environmental Policy Act (NEPA), 42
U.S.C. 4321 et seq., and emphasizes advance coordination to streamline
federal permitting actions.
    The new guidance is not a regulation, nor does it change or
substitute for any applicable regulations. Therefore, it does not
impose legally binding requirements on the EPA, states, tribes, other
federal agencies, or the regulated community. The EPA expects its final
regulation, once promulgated, will provide the clarity and regulatory
certainty expected by the Executive Order and additional guidance will
not be necessary to implement section 401. The Agency therefore
requests comment on whether it should rescind its June 7, 2019 guidance
upon completion of this rulemaking or whether separate guidance would
be helpful on implementation of the provisions that are finalized in
this proposal.

E. Effect on Existing Federal, State, and Tribal Regulations

    Section 3.d. of Executive Order 13868 provides that, within 90 days
after the EPA issues its final section 401 regulations, ``if necessary,
the heads of each 401 implementing Agency shall initiate a rulemaking
to ensure that their respective agencies' regulations are consistent
with'' EPA's final section 401 regulations and ``the policies set forth
in section 2 of [the Executive Order].'' According to the Executive
Order, these subsequent federal agency rulemaking efforts will follow
an EPA-led interagency review and examination of existing federal
guidance and regulations ``for consistency with EPA guidance and
regulations.'' As the EPA understands the Executive Order, the other
federal agencies that issue permits or licenses subject to the
certification requirements of section 401 are expected to ensure that
regulations governing their own processing, disposition, and
enforcement of section 401 certifications are consistent with the EPA's
final regulations and the policies articulated in section 2 of the
Executive Order. The EPA plans to review its own National Pollutant
Discharge Elimination System (NPDES) regulations to ensure its program
certification regulations are also consistent with the Agency's final
regulations under this proposal. The EPA will be working with its
fellow section 401 implementing agencies to accomplish this goal.
    The EPA recommends that states and authorized tribes update, as
necessary, their own CWA section 401 regulations to provide procedural
and substantive requirements that are consistent with those the EPA
eventually promulgates. Regulatory consistency across both federal and
state governments with respect to issues like timing, waiver, and scope
of section 401 reviews and conditions will substantially contribute
towards ensuring that section 401 is implemented in an efficient,
effective,

transparent, and nationally consistent manner and will reduce the
likelihood of protracted litigation over these issues.
    The EPA solicits comments from state and tribal governments, and
the public at large regarding the need for, and potential benefits of,
a consistent, national and state regulatory approach to section 401 and
how the EPA may best promote such consistency.

F. Legal Background

    This proposal initiates the EPA's first comprehensive effort to
promulgate federal rules governing the implementation of CWA section
401. The Agency's existing certification regulations at 40 CFR part 121
pre-date the 1972 CWA amendments. This proposal therefore provides the
EPA's first holistic analysis of the statutory text, legislative
history, and relevant case law informing the implementation of the CWA
section 401 program by the Agency and our federal, state, and tribal
partners. The proposal, while focused on the relevant statutory
provisions and case law interpreting those provisions, is informed by
policy considerations where necessary to address certain ambiguities in
the statutory text. The following sections describe the basic
operational construct and history of the modern CWA, how section 401
fits within that construct, and certain core administrative legal
principles that guide agency decision-making in this context. This
legal background is intended to inform the public's review of the
proposed regulation by summarizing the legal framework for the
proposal.
1. The Clean Water Act
    Congress amended the CWA \5\ in 1972 to address longstanding
concerns regarding the quality of the nation's waters and the federal
government's ability to address those concerns under existing law.
Prior to 1972, the ability to control and redress water pollution in
the nation's waters largely fell to the U.S. Army Corps of Engineers
(Corps) under the Rivers and Harbors Act of 1899 (RHA). While much of
that statute focused on restricting obstructions to navigation on the
nation's major waterways, section 13 of the RHA made it unlawful to
discharge refuse ``into any navigable water of the United States,\6\ or
into any tributary of any navigable water from which the same shall
float or be washed into such navigable water.'' 33 U.S.C. 407. Congress
had also enacted the Water Pollution Control Act of 1948, Pub. L. 80-
845, 62 Stat. 1155 (June 30, 1948), to address interstate water
pollution, and subsequently amended that statute in 1956 (giving the
statute is current formal name), 1961, and 1965. The early versions of
the CWA promoted the development of pollution abatement programs,
required states to develop water quality standards, and authorized the
federal government to bring enforcement actions to abate water
pollution.
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    \5\ The FWPCA is commonly referred to as the CWA following the
1977 amendments to the FWPCA. Public Law 95-217, 91 Stat. 1566
(1977). For ease of reference, the Agency will generally refer to
the FWPCA in this notice as the CWA or the Act.
    \6\ The term ``navigable water of the United States'' is a term
of art used to refer to waters subject to federal jurisdiction under
the RHA. See, e.g., 33 CFR 329.1. The term is not synonymous with
the phrase ``waters of the United States'' under the CWA, see id.,
and the general term ``navigable waters'' has different meanings
depending on the context of the statute in which it is used. See,
e.g., PPL Montana, LLC v. Montana, 132 S. Ct. 1215, 1228 (2012).
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    These earlier statutory frameworks, however, proved challenging for
regulators, who often worked backwards from an overly-polluted waterway
to determine which dischargers and which sources of pollution may be
responsible. See EPA v. State Water Resources Control Bd., 426 U.S.
200, 204 (1976). In fact, Congress determined that they ultimately
proved inadequate to address the decline in the quality of the nation's
waters, see City of Milwaukee v. Illinois, 451 U.S. 304, 310 (1981), so
Congress performed a ``total restructuring'' and ``complete rewriting''
of the existing statutory framework of the Act in 1972. Id. at 317
(quoting legislative history of 1972 amendments). That restructuring
resulted in the enactment of a comprehensive scheme designed to
prevent, reduce, and eliminate pollution in the nation's waters
generally, and to regulate the discharge of pollutants into waters of
the United States specifically. See, e.g., S.D. Warren Co. v. Maine Bd.
of Envtl. Prot., 547 U.S. 370, 385 (2006) (``[T]he Act does not stop at
controlling the `addition of pollutants,' but deals with `pollution'
generally[.]'').
    The objective of the new statutory scheme was ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' 33 U.S.C. 1251(a). In order to meet that objective,
Congress declared two national goals: (1) ``that the discharge of
pollutants into the navigable waters be eliminated by 1985;'' and (2)
``that wherever attainable, an interim goal of water quality which
provides for the protection and propagation of fish, shellfish, and
wildlife and provides for recreation in and on the water be achieved by
July 1, 1983 . . . .'' Id. at 1251(a)(1)-(2).
    Congress established several key policies that direct the work of
the Agency to effectuate those goals. For example, Congress declared as
a national policy ``that the discharge of toxic pollutants in toxic
amounts be prohibited; . . . that Federal financial assistance be
provided to construct publicly owned waste treatment works; . . . that
areawide waste treatment management planning processes be developed and
implemented to assure adequate control of sources of pollutants in each
State; . . . [and] that programs for the control of nonpoint sources of
pollution be developed and implemented in an expeditious manner so as
to enable the goals of this Act to be met through the control of both
point and nonpoint sources of pollution.'' Id. at 1251(a)(3)-(7).
    Congress provided a major role for the states in implementing the
CWA, balancing the traditional power of states to regulate land and
water resources within their borders with the need for a national water
quality regulation. For example, the statute highlighted ``the policy
of the Congress to recognize, preserve, and protect the primary
responsibilities and rights of States to prevent, reduce, and eliminate
pollution'' and ``to plan the development and use . . . of land and
water resources . . . .'' Id. at 1251(b). Congress also declared as a
national policy that States manage the major construction grant program
and implement the core permitting programs authorized by the statute,
among other responsibilities. Id. Congress added that ``[e]xcept as
expressly provided in this Act, nothing in this Act shall . . . be
construed as impairing or in any manner affecting any right or
jurisdiction of the States with respect to the waters (including
boundary waters) of such States.'' Id. at 1370.\7\ Congress also
pledged to provide technical support and financial aid to the States
``in connection with the prevention, reduction, and elimination of
pollution.'' Id. at 1251(b).
---------------------------------------------------------------------------

    \7\ 33 U.S.C. 1370 also prohibits authorized states from
adopting any limitations, prohibitions, or standards that are less
stringent than required by the CWA.
---------------------------------------------------------------------------

    To carry out these policies, Congress broadly defined ``pollution''
to mean ``the man-made or man-induced alteration of the chemical,
physical, biological, and radiological integrity of water,'' id. at
1362(19), to parallel the broad objective of the Act ``to restore and
maintain the chemical, physical, and biological integrity of the
Nation's waters.'' Id. at 1251(a). Congress then crafted a non-
regulatory statutory

framework to provide technical and financial assistance to the states
to prevent, reduce, and eliminate pollution in the nation's waters
generally. See, e.g., id. at 1256(a) (authorizing the EPA to issue
``grants to States and to interstate agencies to assist them in
administering programs for the prevention, reduction, and elimination
of pollution''); see also 84 FR 4154, 4157 (Feb. 14, 2019) (discussing
non-regulatory program provisions); 83 FR 32227, 32232 (July 12, 2018)
(same).
    In addition to the Act's non-regulatory measures to control
pollution of the nation's waters, Congress created a federal regulatory
program designed to address the discharge of pollutants into a subset
of those waters identified as ``the waters of the United States.'' See
33 U.S.C. 1362(7). Section 301 contains the key regulatory mechanism:
``Except as in compliance with this section and sections 302, 306, 307,
318, 402, and 404 of this Act, the discharge of any pollutant by any
person shall be unlawful.'' Id. at 1311(a). A ``discharge of a
pollutant'' is defined to include ``any addition of any pollutant to
navigable waters from any point source,'' such as a pipe, ditch or
other ``discernible, confined and discrete conveyance.'' Id. at
1362(12), (14). The term ``pollutant'' means ``dredged spoil, solid
waste, incinerator residue, sewage, garbage, sewage sludge, munitions,
chemical wastes, biological materials, radioactive materials, heat,
wrecked or discarded equipment, rock, sand, cellar dirt and industrial,
municipal, and agricultural waste discharged into water.'' Id. at
1362(6). Thus, it is unlawful to discharge pollutants into waters of
the United States from a point source unless the discharge is in
compliance with certain enumerated sections of the CWA, including
obtaining authorizations pursuant to the section 402 NPDES permit
program or the section 404 dredged or fill material permit program. See
id. at 1342, 1344. Congress therefore hoped to achieve the Act's
objective ``to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters'' by addressing pollution
of all waters via non-regulatory means and federally regulating the
discharge of pollutants to the subset of waters identified as
``navigable waters.'' \8\
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    \8\ Fundamental principles of statutory interpretation support
the Agency's recognition of a distinction between ``nation's
waters'' and ``navigable waters.'' As the Supreme Court has
observed, ``[w]e assume that Congress used two terms because it
intended each term to have a particular, nonsuperfluous meaning.''
Bailey v. United States, 516 U.S. 137, 146 (1995) (recognizing the
canon of statutory construction against superfluity). Further, ``the
words of a statute must be read in their context and with a view to
their place in the overall statutory scheme.'' FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (internal
quotation marks and citation omitted); see also United Savings Ass'n
v. Timbers of Inwood Forest Associates, 484 U.S. 365, 371
(``Statutory construction . . . is a holistic endeavor. A provision
that may seem ambiguous in isolation is often clarified by the
remainder of the statutory scheme--because the same terminology is
used elsewhere in a context that makes its meaning clear[.]'')
(citation omitted). The non-regulatory sections of the CWA reveal
Congress' intent to restore and maintain the integrity of the
nation's waters using federal assistance to support State and local
partnerships to control pollution in the nation's waters in addition
to a federal regulatory prohibition on the discharge of pollutants
into the navigable waters. For further discussion, see 83 FR at
32232 and 84 FR at 4157.
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    Within the regulatory programs established by the Act, two
principal components focus on ``achieving maximum `effluent
limitations' on `point sources,' as well as achieving acceptable water
quality standards,'' and the development of the NPDES permitting
program that imposes specific discharge limitations for regulated
entities. EPA v. State Water Resources Control Bd., 426 U.S. at 204.
Together these components provide a framework for the Agency to focus
on reducing or eliminating discharges while creating accountability for
each entity that discharges into a waterbody, facilitating greater
enforcement and overall achievement of the CWA water quality goals.
Id.; see Oregon Natural Desert Association v. Dombeck, 172 F.3d 1092,
1096 (9th Cir. 1998) (observing that 1972 amendments ``largely
supplanted'' earlier version of CWA ``by replacing water quality
standards with point source effluent limitations'').
    Under this statutory scheme, the states \9\ are authorized to
assume program authority for issuing section 402 and 404 permits within
their borders, subject to certain limitations. 33 U.S.C. 1342(b),
1344(g). States are also responsible for developing water quality
standards for ``waters of the United States'' within their borders and
reporting on the condition of those waters to the EPA every two years.
Id. at 1313, 1315. States must develop total maximum daily loads
(TMDLs) for waters that are not meeting established water quality
standards and must submit those TMDLs to the EPA for approval. Id. at
1313(d). And, central to this proposed rule, states under CWA section
401 have authority to grant, grant with conditions, deny, or waive
water quality certifications for every federal license or permit issued
within their borders that may result in a discharge to waters of the
United States. Id. at 1341. These same regulatory authorities can be
assumed by Indian tribes under section 518 of the CWA, which authorizes
the EPA to treat eligible tribes with reservations in a similar manner
to states (referred to as ``treatment as states'' or TAS) for a variety
of purposes, including administering the principal CWA regulatory
programs. Id. at 1377(e). In addition, states and tribes retain
authority to protect and manage the use of those waters that are not
waters of the United States under the CWA. See, e.g., id. at 1251(b),
1251(g), 1370, 1377(a).
---------------------------------------------------------------------------

    \9\ The CWA defines ``state'' as ``a State, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands,
and the Trust Territory of the Pacific Islands.'' 33 U.S.C. 1362(3).
---------------------------------------------------------------------------

    In enacting section 401, Congress recognized that where states and
tribes do not have direct permitting authority (either under a section
402 or 404 program authorization or where Congress has preempted a
regulatory field, e.g., under the Federal Power Act), they may still
play a valuable role in protecting water quality of federally regulated
waters within their borders in collaboration with federal agencies.
Under section 401, a federal agency may not issue a license or permit
for an activity that may result in a discharge to waters of the United
States, unless the appropriate certification authority provides a
section 401 certification or waives its ability to do so. The authority
to certify a federal license or permit lies with the agency (the
certifying authority) that has jurisdiction over the discharge location
to the receiving waters of the United States. Id. at 1341(a)(1).
Examples of federal licenses or permits potentially subject to section
401 certification include, but are not limited to, CWA section 402
NPDES permits in states where the EPA administers the permitting
program, CWA section 404 permits issued by the Corps, hydropower and
pipeline licenses issued by Federal Energy Regulatory Commission
(FERC), and RHA sections 9 and 10 permits issued by the Corps.
    Under section 401, a certifying authority may grant, grant with
conditions, deny, or waive certification in response to a request from
a project proponent. The certifying authority determines whether the
proposed activity will comply with the applicable provisions of
sections 301, 302, 303, 306, and 307 of the CWA and any other
appropriate requirement of state law. Id. Certifying authorities may
also add to a certification ``any effluent limitations and other
limitations, and monitoring requirements'' necessary to assure
compliance. Id at 1341(d). These

additional provisions must become ``a condition'' of the federal
license or permit should it be issued. Id. A certifying authority may
deny certification if it is unable to determine that the discharge from
the proposed activity will comply with the applicable sections of the
CWA and appropriate requirements of state law. If a certifying
authority denies certification, the federal license or permit may not
issue. Id. at 1341(a)(1). A certifying authority may waive
certification by ``fail[ing] or refus[ing] to act on a request for
certification, within a reasonable period of time . . . after receipt
of such request.'' Id.
    Perhaps with the exception of section 401,\10\ the EPA has
developed comprehensive, modern regulatory programs designed to ensure
that the CWA is fully implemented as Congress intended. This includes
pursuing the overall ``objective'' of the CWA to ``restore and maintain
the chemical, physical, and biological integrity of the Nation's
waters,'' id. at 1251(a), while implementing the specific ``policy''
directives from Congress to, among other things, ``recognize, preserve,
and protect the primary responsibilities and rights of States to
prevent, reduce, and eliminate pollution'' and ``to plan the
development and use . . . of land and water resources.'' Id. at
1251(b); see also Webster's II, New Riverside University Dictionary
(1994) (defining ``policy'' as a ``plan or course of action, as of a
government[,] designed to influence and determine decisions and
actions;'' an ``objective'' is ``something worked toward or aspired to:
Goal''). The Agency therefore recognizes a distinction between the
specific word choices of Congress, including the need to develop
regulatory programs that aim to accomplish the goals of the Act while
implementing the specific policy directives of Congress. For further
discussion of these principles, see 83 FR at 32237 and 84 FR at 4168-
69.
---------------------------------------------------------------------------

    \10\ As noted in section II.F in this preamble, the EPA's
existing certification regulations were promulgated prior to the
1972 CWA Amendments and have not been updated to reflect the current
statutory text.
---------------------------------------------------------------------------

    Congress' authority to regulate navigable waters, including those
subject to CWA section 401 water quality certification, derives from
its power to regulate the ``channels of interstate commerce'' under the
Commerce Clause. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824); see
also United States v. Lopez, 514 U.S. 549, 558-59 (1995) (describing
the ``channels of interstate commerce'' as one of three areas of
congressional authority under the Commerce Clause). The Supreme Court
explained in Solid Waste Agency of Northern Cook County v. U.S. Army
Corps of Engineers (SWANCC) that the term ``navigable'' indicates
``what Congress had in mind as its authority for enacting the Clean
Water Act: Its traditional jurisdiction over waters that were or had
been navigable in fact or which could reasonably be so made.'' 531 U.S.
159, 172 (2001). The Court further explained that nothing in the
legislative history of the Act provides any indication that ``Congress
intended to exert anything more than its commerce power over
navigation.'' Id. at 168 n.3. The Supreme Court, however, has
recognized that Congress intended ``to exercise its powers under the
Commerce Clause to regulate at least some waters that would not be
deemed `navigable' under the classical understanding of that term.''
United States v. Riverside Bayview Homes, 474 U.S. 121, 133 (1985); see
also SWANCC, 531 U.S. at 167.
    The classical understanding of the term navigable was first
articulated by the Supreme Court in The Daniel Ball:

    Those rivers must be regarded as public navigable rivers in law
which are navigable in fact. And they are navigable in fact when
they are used, or are susceptible of being used, in their ordinary
condition, as highways of commerce, over which trade and travel are
or may be conducted in the customary modes of trade and travel on
water. And they constitute navigable waters of the United States
within the meaning of the Acts of Congress, in contradistinction
from the navigable waters of the States, when they form in their
ordinary condition by themselves, or by uniting with other waters, a
continued highway over which commerce is or may be carried on with
other States or foreign countries in the customary modes in which
such commerce is conducted by water.

77 U.S. (10 Wall.) 557, 563 (1871). Over the years, this traditional
test has been expanded to include waters that had been used in the past
for interstate commerce, see Economy Light & Power Co. v. United
States, 256 U.S. 113, 123 (1921), and waters that are susceptible for
use with reasonable improvement. See United States v. Appalachian Elec.
Power Co., 311 U.S. 377, 407-10 (1940).
    By the time the 1972 CWA amendments were enacted, the Supreme Court
had held that Congress' authority over the channels of interstate
commerce was not limited to regulation of the channels themselves but
could extend to activities necessary to protect the channels. See
Oklahoma ex rel. Phillips v. Guy F. Atkinson Co., 313 U.S. 508, 523
(1941) (``Congress may exercise its control over the non-navigable
stretches of a river in order to preserve or promote commerce on the
navigable portions.''). The Supreme Court also had clarified that
Congress could regulate waterways that formed a part of a channel of
interstate commerce, even if they are not themselves navigable or do
not cross state boundaries. See Utah v. United States, 403 U.S. 9, 11
(1971). Congress therefore intended to assert federal regulatory
authority over more than just waters traditionally understood as
navigable and rooted that authority in ``its commerce power over
navigation.'' SWANCC, 531 U.S. at 168 n.3.
    The EPA recognizes and respects the primary responsibilities and
rights of states to regulate their land and water resources, as
envisioned by the CWA. See 33 U.S.C. 1251(b), 1370. The oft-quoted
objective of the CWA to ``restore and maintain the chemical, physical,
and biological integrity of the Nation's waters,'' id. at 1251(a), must
be implemented in a manner consistent with Congress' policy directives.
The Supreme Court long ago recognized the distinction between waters
subject to federal authority, traditionally understood as navigable,
and those waters ``subject to the control of the States.'' The Daniel
Ball, 77 U.S. (10 Wall.) 557, 564-65 (1870). Over a century later, the
Supreme Court in SWANCC reaffirmed the state's ``traditional and
primary power over land and water use.'' 531 U.S. at 174. Ensuring that
states retain authority over their land and water resources helps carry
out the overall objective of the CWA and ensures that the agency is
giving full effect and consideration to the entire structure and
function of the Act. See, e.g., Hibbs v. Winn, 542 U.S. 88, 101 (2004)
(``A statute should be construed so that effect is given to all its
provisions, so that no part will be inoperative or superfluous, void or
insignificant.'') (citation omitted); see also Rapanos v. United
States, 547 U.S. 715, 755-56 (2006) (Scalia, J., plurality opinion)
(``[C]lean water is not the only purpose of the statute. So is the
preservation of primary state responsibility for ordinary land-use
decisions. 33 U.S.C. 1251(b).'') (original emphasis).
    In summary, Congress relied on its authority under the Commerce
Clause when it enacted the CWA and intended to assert federal authority
over more than just waters traditionally understood as navigable, but
it limited the exercise of that authority to ``its commerce power over
navigation.'' SWANCC, 531 U.S. at 168 n.3. In doing so, Congress
specifically sought to avoid ``federal encroachment upon a traditional
state power.'' Id. at 173. The Court in SWANCC found that ``[r]ather
than expressing a desire to readjust the

federal-state balance in this manner, Congress chose [in the CWA] to
`recognize, preserve, and protect the primary responsibilities and
rights of States . . . to plan the development and use . . . of land
and water resources . . .'' Id. at 174 (quoting 33 U.S.C. 1251(b)). The
Court found no clear statement from Congress that it had intended to
permit federal encroachment on traditional state power and construed
the CWA to avoid the significant constitutional questions related to
the scope of federal authority authorized therein. Id. That is because
the Supreme Court has instructed that ``[w]here an administrative
interpretation of a statute invokes the outer limits of Congress'
power, we expect a clear indication that Congress intended that
result.'' Id. at 172. The Court has further stated that this is
particularly true ``where the administrative interpretation alters the
federal-state framework by permitting federal encroachment upon a
traditional state power.'' Id. at 173; see also Will v. Michigan Dept.
of State Police, 491 U.S. 58, 65 (1989) (``[I]f Congress intends to
alter the `usual constitutional balance between the States and the
Federal Government,' it must make its intention to do so `unmistakably
clear in the language of the statute.' '') (quoting Atascadero State
Hospital v. Scanlon, 473 U.S. 234, 242 (1985)); Gregory v. Ashcroft,
501 U.S. 452, 461 (1991) (``this plain statement rule . . .
acknowledg[es] that the States retain substantial sovereign powers
under our constitutional scheme, powers with which Congress does not
readily interfere''). This means that that the executive branch's
authority under the CWA, while broad, is not unlimited, and the waters
to which CWA regulatory programs apply must necessarily respect those
limits. For further discussion of these principles, see 84 FR at 4165
and 83 FR at 32234.
    In some cases, CWA section 401 denials have been challenged on
grounds that the denial improperly interfered with interstate commerce.
See, e.g., Lighthouse Resources, Inc. v. Inslee, No. 3:18-cv-5005,
Complaint at ]] 206-210; ]] 224-248 (W.D. Wash. Filed Jan. 8, 2018)
(alleging State's denial of section 401 certification violated the
dormant commerce clause and dormant foreign commerce clause). In Lake
Carriers Association v. EPA, 652 F.3d 1 (D.C. Cir. 2011), a court of
appeals found that the section 401 statutory scheme of delegation to
states itself does not create an impermissible burden on interstate
commerce; however actions taken by states pursuant to section 401 are
not insulated from dormant commerce clause challenges. 652 F.3d at 10
(``If [petitioners] believe that the certification conditions imposed
by any particular state pose an inordinate burden on their operations,
they may challenge those conditions in that state's courts. If
[petitioners] believe that a particular state's law imposes an
unconstitutional burden on interstate commerce, they may challenge that
law in federal (or state) court.''). Accordingly, EPA seeks comment on
whether its proposed regulations appropriately balance the scope of
state authority under section 401 with Congress' goal of facilitating
commerce on interstate navigable waters, and whether they define the
scope in a manner that would limit the potential for states to withhold
or condition certifications such that it would place undue burdens on
interstate commerce.
2. The EPA's Role in Implementing Section 401
    The EPA, as the federal agency charged with administering the CWA,
is responsible for developing regulations and guidance to ensure
effective implementation of all CWA programs, including section
401.\11\ In addition to administering the statute and promulgating
implementing regulations, the Agency has several other roles under
section 401.
---------------------------------------------------------------------------

    \11\ See 33 U.S.C. 1251(d), 1361(a); Mayo Found. for Medical
Educ. and Res. v. United States, 562 U.S. 44, 45 (2011); Hoopa
Valley Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019); Alabama
Rivers Alliance v. FERC, 325 F.3d 290, 296-97 (D.C. Cir. 2003);
California Trout v. FERC, 313 F.3d 1131, 1133 (9th Cir. 2002);
American Rivers, Inc. v. FERC, 129 F. 3d 99, 107 (2d. Cir. 1997).
---------------------------------------------------------------------------

    The EPA acts as the section 401 certification authority under two
circumstances. First, the EPA will certify on behalf of a state or
tribe where the jurisdiction in which the discharge will originate does
not itself have certification authority. 33 U.S.C. 1341(a)(1). In
practice, this results in the EPA certifying on behalf of the many
tribes that do not have TAS authority for section 401. Second, the EPA
will act as the certifying authority where the discharge would
originate on lands of exclusive federal jurisdiction.\12\
---------------------------------------------------------------------------

    \12\ The federal government may obtain exclusive federal
jurisdiction over lands in multiple ways, including where the
federal government purchases lands with state consent 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).
Examples of lands of exclusive federal jurisdiction include Denali
National Park.
---------------------------------------------------------------------------

    The EPA also coordinates the opportunity for neighboring
jurisdictions to raise concerns and recommendations where their water
quality may be affected by a discharge subject to section 401
certification. Id. at 1341(a)(2). Although section 401 certification
authority lies with the jurisdiction where the discharge originates, a
neighboring jurisdiction whose water quality is potentially affected by
the discharge may have an opportunity to raise concerns. Where the EPA
Administrator determines that a discharge subject to section 401 ``may
affect'' the water quality of a neighboring jurisdiction, the EPA is
required to notify that other jurisdiction. Id. If the neighboring
jurisdiction determines that the discharge ``will affect'' the quality
of its waters in violation of any water quality requirement of that
jurisdiction, it may notify the EPA and the federal licensing or
permitting agency of its objection to the license or permit. Id. It may
also request a hearing on its objection with the federal licensing or
permitting agency. At the hearing, the EPA will submit its evaluation
and recommendations. The federal agency will consider the
jurisdiction's and the EPA's recommendations, and any additional
evidence presented at the hearing. The federal agency ``shall condition
such license or permit in such manner as may be necessary to insure
compliance with the applicable water quality requirements'' of the
neighboring jurisdiction. Id. If the conditions cannot ensure
compliance, the federal agency may not issue the license or permit.
    The EPA also must provide technical assistance for section 401
certifications upon the request of any federal or state agency, or
project proponent. Id. at 1341(b). Technical assistance might include
provision of any relevant information on applicable effluent
limitations, standards, regulations, requirements, or water quality
criteria.
    Finally, the EPA is responsible for developing regulations and
guidance to ensure effective implementation of all CWA programs,
including section 401. The EPA's current water quality certification
regulations were promulgated in 1971,\13\ prior to the 1972

amendments that enacted CWA section 401.
---------------------------------------------------------------------------

    \13\ The EPA's existing water quality certification regulations
are found at 40 CFR part 121, 36 FR 22487 (November 25, 1971). The
EPA has also promulgated regulations addressing how 401
certification applies to the CWA section 402 NPDES program, found at
40 CFR 124.53, 124.54, 124.55; 48 FR 14264 (April 1, 1983). This
proposed rule does not address the NPDES regulations, and the Agency
will make any necessary conforming regulatory changes in a
subsequent rulemaking.
---------------------------------------------------------------------------

    The EPA's 1971 regulations were designed to implement an earlier
version of the certification requirement that was included in the pre-
1972 version of the FWPCA. The legislative history reveals Congress
added the certification requirement to ``recognize[] the responsibility
of Federal agencies to protect water quality whenever their activities
affect public waterways.'' S. Rep. No. 91-351, at 3 (1969). ``In the
past, these [Federal] licenses and permits have been granted without
any assurance that the [water quality] standards will be met or even
considered.'' Id. As an example, the legislative history discusses the
Atomic Energy Commission's failure to consider the impact of thermal
pollution on receiving waters when evaluating ``site selection,
construction, and design or operation of nuclear powerplants.'' Id.
    Prior to 1972, the certification provision required states to
certify that ``such activity will be conducted in a manner which will
not violate applicable water quality standards.'' Public Law 91-224,
Sec.  21(b)(1), 84 Stat. 91 (1970) (emphasis added). As described
above, the 1972 amendments restructured the CWA and created a framework
for compliance with effluent limitations that would be established in
discharge permits issued pursuant to the new federal permitting
program.
    The 1972 amendments retained the pre-existing water quality
certification requirements but modified the requirements to be
consistent with the overall restructuring of the CWA so that a water
quality certification would assure that the ``discharge will comply''
with effluent limitations and other enumerated regulatory provisions of
the Act, and with ``any other appropriate requirement'' of state or
tribal law. 33 U.S.C. 1341(a), (d) (emphasis added). Because the EPA's
existing certification regulations were promulgated prior to the 1972
CWA amendments, they contain language from the pre-1972 FWCPA that
Congress changed in those amendments. In contrast to the language in
CWA section 401, the EPA's existing certification regulations direct
authorities to certify that there is ``reasonable assurance that the
activity will be conducted in a manner which will not violate
applicable water quality standards.'' 40 CFR 121.2(a)(2)-(3) (emphasis
added). These outdated provisions have caused confusion for states,
tribes, stakeholders, and courts reviewing section 401 certifications,
and a primary goal for this proposal is to update and clarify the
Agency's regulations to ensure that they are consistent with the CWA.
3. The EPA's Existing Certification Regulations
    The EPA's existing certification regulations require certifying
authorities to act on a certification request within a ``reasonable
period of time.'' 40 CFR 121.16(b). The regulations provide that the
federal licensing or permitting agency determines what constitutes a
``reasonable period,'' and that the period shall generally be six
months but in any event shall not exceed one year. Id.
    The existing certification regulations also provide that certifying
authorities may waive the certification requirement under two
circumstances: First, when the certifying authority sends written
notification expressly waiving its authority to act on a request for
certification; and second, when the federal licensing or permitting
agency sends written notification to the EPA Regional Administrator
that the certifying authority failed to act on a certification request
within a reasonable period of time after receipt of such a request. Id.
at 121.16(a)-(b). Once waiver occurs, certification is not required,
and the federal license or permit may be issued. 33 U.S.C. 1341(a).
    When the EPA is the certifying authority, the existing
certification regulations at 40 CFR part 121 establish different
requirements, including specific information to be included in a
certification request and additional procedures. When the EPA is
providing certification, the project proponent must submit to the EPA
Regional Administrator the name and address of the project proponent, a
description of the facility or activity and of any related discharge
into waters of the United States, a description of the function and
operation of wastewater treatment equipment, dates on which the
activity and associated discharge will begin and end, and a description
of the methods to be used to monitor the quality and characteristics of
the discharge. 40 CFR 121.22. Once the request is submitted to the EPA,
the Regional Administrator must provide public notice of the request
and an opportunity to comment, specifically stating that ``all
interested and affected parties will be given reasonable opportunity to
present evidence and testimony at a public hearing on the question
whether to grant or deny certification if the Regional Administrator
determines that such a hearing is necessary or appropriate.'' Id. at
121.23. If, after consideration of relevant information, the Regional
Administrator determines that there is ``reasonable assurance that the
proposed activity will not result in a violation of applicable water
quality standards,'' the Regional Administrator shall issue the
certification.\14\ Id. at 121.24.
---------------------------------------------------------------------------

    \14\ Use of the terms ``reasonable assurance'' and ``activity''
in this operative provision of the EPA's existing certification
regulation is an artifact of the pre-1972 statutory language and
those terms are not used in the operative provision of CWA section
401. See Public Law 91-224, 21(b)(1), 84 Stat. 91 (1970).
---------------------------------------------------------------------------

    The existing certification regulations identify a number of
requirements that all certifying authorities must include in a section
401 certification. Id. at 121.2. For example, a section 401
certification shall include the name and address of the project
proponent. Id. at 121.2(a)(2). The certification shall also include a
statement that the certifying authority examined the application made
by the project proponent to the federal licensing or permitting agency
and bases its certification upon an evaluation of the application
materials which are relevant to water quality considerations or that it
examined other information sufficient to permit the certifying
authority to make a statement that there is a ``reasonable assurance
that the activity will be conducted in a manner which will not violate
applicable water quality standards.'' Id. at 121.2(a)(2)-(3). The
certification shall state ``any conditions which the certifying agency
deems necessary or desirable with respect to the discharge of the
activity,'' and other information the certifying authority deems
appropriate.\15\ Id. at 121.2(a)(4)-(5).
---------------------------------------------------------------------------

    \15\ The term ``desirable'' is also not used in CWA section 401.
---------------------------------------------------------------------------

    The existing certification regulations at 40 CFR part 121 also
establish a process for the EPA to provide neighboring jurisdictions
with an opportunity to comment on a certification that is similar to
that provided in the modern CWA section 401(a)(2). Under the existing
certification regulations, the Regional Administrator is required to
review the federal license or permit application, the certification,
and any supplemental information provided to the EPA by the federal
licensing or permitting agency, and if the Regional Administrator
determines there is ``reason to believe that a discharge may affect the
quality of the waters of any State or States other than the State in
which the discharge originates,'' the Regional Administrator is
required to notify each affected state within thirty days of receipt of
the application materials and certification. Id. at 121.13. If the
documents provided are insufficient to make the

determination, the Regional Administrator may request any supplemental
information ``as may be required to make the determination.'' Id. at
121.12. In cases where the federal licensing or permitting agency holds
a public hearing on the objection raised by a neighboring jurisdiction,
notice of such objection shall be forwarded to the Regional
Administrator by the licensing or permitting agency no later than 30
days prior to the hearing. Id. at 121.15. At the hearing the Regional
Administrator shall submit an evaluation and ``recommendations as to
whether and under what conditions the license or permit should be
issued.'' Id. at 121.15.
    The existing certification regulations establish that the Regional
Administrator ``may, and upon request shall'' provide federal licensing
and permitting agencies, certifying authorities, and project proponents
with information regarding water quality standards, status of
compliance by dischargers with the conditions and requirements of
applicable water quality standards. Id. at 121.30.
    Finally, the existing certification regulations establish an
oversight role for the EPA when a certifying authority modifies a prior
certification. The regulation provides for a certifying authority to
modify its certification ``in such manner as may be agreed upon by the
certifying agency, the licensing or permitting agency, and the Regional
Administrator.'' Id. at 121.2(b) (emphasis added).
    As noted throughout this preamble, the EPA's existing certification
regulations were promulgated prior to the 1972 CWA amendments and they
do not reflect the current statutory language in section 401. In
addition, the EPA's existing certification regulations at 40 CFR part
121 do not address some important procedural and substantive components
of section 401 certification review and action. This proposal is
intended to modernize the EPA's regulations, align them with the
current text and structure of the CWA, and provide additional
regulatory procedures that the Agency believes will help promote
consistent implementation of section 401 and streamline federal license
and permit processes, consistent with the objectives of the Executive
Order.
4. Judicial Interpretations of Section 401
    During the 47 years since its passage, the federal courts on
numerous occasions have interpreted key provisions of section 401. The
United States Supreme Court has twice addressed questions related to
the scope and triggering mechanism of section 401, and lower courts
have also addressed certain elements of section 401 certifications.
This section summarizes the U.S. Supreme Court decisions and major
lower court decisions.
a. U.S. Supreme Court Decisions
i. P.U.D. No. 1 of Jefferson County
    In 1994, the Supreme Court reviewed a water quality certification
issued by the State of Washington for a new hydroelectric project on
the Dosewallips River. See PUD No. 1 of Jefferson County and City of
Tacoma v. Washington Department of Ecology, 511 U.S. 700 (1994) (PUD
No. 1). This particular decision, though narrow in its holding, has
been read by other courts as well as the EPA and some states and tribes
to significantly broaden the scope of section 401 beyond its plain
language meaning.
    The principal dispute adjudicated in PUD No. 1 was whether a state
or tribe may require a minimum stream flow as a condition in a
certification issued under section 401. In this case, the project
proponent identified two potential discharges from its proposed
hydroelectric facility: ``the release of dredged and fill material
during construction of the project, and the discharge of water at the
end of the tailrace after the water has been used to generate
electricity.'' Id at 711. The project proponent argued that the minimum
stream flow condition was unrelated to these discharges and therefore
beyond the scope of the state's authority under section 401. Id.
    The Court analyzed sections 401(a) and 401(d); specifically it
analyzed the use of different terms in those sections of the statute to
inform the scope of a section 401 certification. Section 401(a)
requires the certifying authority to certify that the discharge from a
proposed federally licensed or permitted project will comply with
enumerated CWA provisions, and section 401(d) allows the certifying
authority to include conditions to assure that the applicant will
comply with enumerated CWA provisions and ``other appropriate state law
requirements.'' The Court concluded that, consistent with the EPA's
implementing regulations, section 401(d) ``is most reasonably read as
authorizing additional conditions and limitations on the activity as a
whole once the threshold condition, the existence of a discharge, is
satisfied.'' \16\ Id. at 712. The Court cited the EPA's certification
regulations at 40 CFR 121.2(a)(3) with approval and quoted the EPA's
guidance titled Wetlands and 401 Certification, and stated that ``EPA's
conclusion that activities--not merely discharges--must comply with
state water quality standards is a reasonable interpretation of Sec.
401 and is entitled to deference.'' Id. (citing EPA, Wetlands and 401
Certification 23 (April 1989)).
---------------------------------------------------------------------------

    \16\ The Court apparently failed to identify or understand that
the EPA's regulations were promulgated prior to the 1972 CWA
amendments and that the exact provision the Court was analyzing
contained outdated terminology, including the term ``activity'' from
the pre-1972 versions of the Act.
---------------------------------------------------------------------------

    The Court was careful to note that a state's authority to condition
a certification ``is not unbounded'' and that states ``can only ensure
that the project complies with `any applicable effluent limitations and
other limitations, under [33 U.S.C. 1311, 1312]' or certain other
provisions of the Act, `and with any other appropriate requirement of
State Law.' '' Id. The Court concluded that ``state water quality
standards adopted pursuant to Sec.  303 are among the `other
limitations' with which a State may ensure compliance through the Sec.
401 certification process'' and noted that its view ``is consistent
with EPA's view of the statute,'' again citing the EPA's regulations
and guidance. Id. at 713.
    Although this decision has been interpreted by some to broadly
expand state authority under section 401--beyond assessing water
quality impacts from the discharge and allowing conditions beyond the
enumerated CWA provisions--the Court did not stray from the bedrock
principles that a section 401 certification must address water quality
and that appropriate conditions include those necessary to assure
compliance with the state's water quality standards. Indeed, referring
to the section 401 language allowing certification conditions based on
``any other appropriate requirements of state law,'' the Court
explicitly declined to speculate ``on what additional state laws, if
any, might be incorporated by this language. But at a minimum,
limitations imposed pursuant to state water quality standards adopted
pursuant to Sec.  303 are appropriate requirements of state law.'' Id.
(emphasis added).
    On the scope of section 401, the dissenting opinion would have
declined to adopt the interpretation suggested by the EPA's regulations
and guidance and instead analyzed the statutory section as a whole,
attempting to harmonize sections 401(a) and (d). The dissent first
noted that, if the Court's conclusion that states can impose conditions
unrelated

to discharges is correct, ``Congress' careful focus on discharges in
Sec.  401(a)(1)--the provision that describes the scope and function of
the certification process--was wasted effort,'' and that the Court's
conclusion ``effectively eliminates the constraints of Sec.
401(a)(1).'' Id. at 726. The dissent then ``easily reconciled'' the two
provisions by concluding that, ``it is reasonable to infer that the
conditions a State is permitted to impose on certification must relate
to the very purpose the certification process is designed to serve.
Thus, while section 401(d) permits a State to place conditions on a
certification to ensure compliance of `the applicant,' those conditions
must still be related to discharges.'' Id. at 726-27. The dissent
further noted that each of the CWA provisions enumerated in section 401
``describes discharge-related limitations'' and therefore the plain
language of section 401(d) supports the conclusion that certification
conditions must address water quality concerns from the discharge, not
the proposed activity as a whole. Id. at 727. Finally, the dissent
applied the principle ejusdem generis in its analysis and concluded
that because ``other appropriate requirements of state law'' is
included in a list of more specific discharge-related CWA provisions,
that the ``appropriate'' requirements are ``most reasonably construed
to extend only to provisions that, like the other provisions in the
list, impose discharge-related restrictions.'' Id. at 728.
    The dissent also took issue with the Court's reliance, at least in
part, on the EPA's regulations and its application of Chevron deference
in this case without first identifying ambiguity in the statute and,
where the government apparently did not seek deference on an
interpretation of section 401(d). Id. The dissent noted that there was
no EPA interpretation directly addressing the language in sections
401(a) and (d), and that the only existing EPA regulation that
addresses conditions ``speaks exclusively in terms of limiting
discharges.'' \17\ Id. (citing 40 CFR 121.2(a)(4)).
---------------------------------------------------------------------------

    \17\ The EPA's amicus brief filed in this case did not grapple
with the language in 401(a) and (d) at all, but primarily argued
that the proposed project had two distinct discharges (which were
undisputed) and that ``both discharges could reasonably be said to
cause a violation of the State's water quality standards,''
including the designated uses and antidegradation components. Brief
for the United States as Amicus Curiae Supporting Affirmance, at 12
n. 2 (Dec. 1993) (``It is therefore unnecessary to determine in this
case whether Congress intended by the use of the term ``applicant,''
rather than ``discharge'' in section 401(d) to grant States a
broader power to condition certifications under Section 401(d) than
to deny them under Section 401(a) and, if so, whether there are
limitations on the States' authority to impose such conditions.''
The EPA's amicus brief also did not inform the Court that the
Agency's implementing regulations included language from the prior
version of the Act.
---------------------------------------------------------------------------

    The PUD No. 1 decision addressed two other scope-related elements
of section 401: Whether certification conditions may be designed to
address impacts to designated uses, and whether conditions related to
minimum stream flows are appropriate under section 401. First, the
Court conducted a plain language analysis of the CWA and concluded
that, ``under the literal terms of the statute, a project that does not
comply with a designated use of the water does not comply with the
applicable water quality standards.'' Id. at 715. This means a section
401 certification may appropriately include conditions to require
compliance with designated uses, which pursuant to the CWA, are a
component of a water quality standard. Id. Second, the Court
acknowledged that the Federal Power Act (FPA) empowers FERC ``to issue
licenses for projects `necessary or convenient . . . for the
development, transmission, and utilization of power across, along,
from, or in any of the streams . . . over which Congress has
jurisdiction,''' and that the FPA ``requires FERC to consider a
project's effect on fish and wildlife.'' Id. at 722. Although the Court
had previously rejected a state's minimum stream flow requirement that
conflicted with a stream flow requirement in a FERC license, the Court
found no similar conflict in this case because FERC had not yet issued
the hydropower license. Id. Given the breadth of federal permits that
CWA section 401 applies to, the Court declined to assert a broad
limitation on stream flow conditions in certifications but concluded
they may be appropriate if necessary to enforce a state's water quality
standard, including designated uses. Id. at 723.
ii. S.D. Warren
    In 2006, the Court revisited section 401 in connection with the
State of Maine's water quality certification of FERC license renewals
for five hydroelectric dams on the Presumpscot River. S.D. Warren Co.
v. Maine Board of Environmental Protection et al., 547 U.S. 370 (2006)
(S.D. Warren). The issue presented in S.D. Warren was whether operation
of a dam may result in a ``discharge'' into the waters of the United
States, triggering the need for a section 401 certification, even if
the discharge did not add any pollutants. The Court analyzed the use of
different terms--``discharge'' and ``discharge of pollutants''--within
the CWA, how those terms are defined and how they are used in CWA
sections 401 and 402. The Court noted that section 402 expressly uses
the term ``discharge of pollutants'' and requires permits for such
discharges; and that section 401, by contrast, provides a tool for
states to maintain water quality within their jurisdiction and uses the
term ``discharge'' which is not independently defined in the Act.\18\
Finding no specific definition of the term ``discharge'' in the
statute, the Court turned to its common dictionary meaning: A ``flowing
or issuing out'' and concluded that the term is ``presumably broader''
than ``discharge of a pollutant.'' Id. at 375-76.
---------------------------------------------------------------------------

    \18\ The Court noted that the Act provides, that ``the term
`discharge' when used without qualification incudes a discharge of a
pollutant, and a discharge of pollutants.'' 547 U.S. at 375 (quoting
33 U.S.C. 1362(16)).
---------------------------------------------------------------------------

    The Court held that operating a dam ``does raise the potential for
a discharge'' and, therefore, section 401 is triggered. Id. at 373. In
so holding, the Court observed that, ``[t]he alteration of water
quality as thus defined is a risk inherent in limiting river flow and
releasing water through turbines,'' and such changes in a river ``fall
within a State's legitimate legislative business, and the Clean Water
Act provides for a system that respects the State's concerns.'' Id. at
385-86. The Court concluded by observing that ``[s]tate certifications
under [section] 401 are essential in the scheme to preserve state
authority to address the broad range of pollution.'' Id. at 386. This
sentence when read in isolation could be interpreted as broadening the
scope of section 401 to allow certifying authorities to consider
potential environmental impacts from a proposed federally licensed or
permitted project beyond water quality. However, the Court followed
that sentence with a quote from Senator Muskie's floor statement during
the enactment of section 401:

    No polluter will be able to hide behind a Federal license or
permit as an excuse for a violation of water quality standard[s]. No
polluter will be able to make major investments in facilities under
a Federal license or permit without providing assurance that the
facility will comply with water quality standards. No State water
pollution control agency will be confronted with a fait accompli by
an industry that has built a plant without consideration of water
quality requirements.

Id. (emphasis added). The Court then stated, ``These are the very
reasons that Congress provided the States with

power to enforce `any other appropriate requirement of State law,' by
imposing conditions on federal licenses for activities that may result
in a discharge.'' Id. (emphasis added). Read in context, the Court's
statement about a state's authority to address a ``broad range of
pollution'' under section 401 does not suggest that an ``appropriate
requirement of State law'' means anything other than water quality
requirements or that a state's or tribe's action on a certification
request can be focused on anything other than compliance with
appropriate water quality requirements.
b. Circuit Court Decisions
    Over the years, federal appellate courts have also addressed
important aspects of section 401, including the timing for certifying
authorities to act on a request and the scope of authority of federal
agencies other than the EPA to make determinations on section 401
certifications. This section highlights a few of the most significant
issues concerning section 401 and the most often cited decisions but
does not cover the universe of lower federal court or state court case
law. The Agency intends for this proposed rule, if finalized, to
provide consistency and certainty where there may currently be
conflicting or unclear but locally binding legal precedent.
    Recent case law has provided insight concerning the timing and
waiver provisions of section 401. In 2018, the Second Circuit addressed
the question of when the statutory review clock begins. N.Y. State
Dep't of Envtl. Conservation v. FERC, 884 F.3d 450, 455-56 (2d Cir.
2018). Considering Millennium Pipeline Company's certification request,
the court disagreed with the State of New York and held that the
statutory time limit is not triggered when a state determines that a
request for certification is ``complete,'' but that the ``plain
language of Section 401 outlines a bright-line rule regarding the
beginning of review,'' and that the clock begins upon ``receipt of such
request'' by the certifying authority. Id. Otherwise, the court noted
that states could ``blur this bright-line into a subjective standard,
dictating that applications are complete only when state agencies
decide that they have all the information they need. The state agencies
could thus theoretically request supplemental information
indefinitely.'' Id. at 456.
    The D.C. Circuit has also recently analyzed the statutory timeline
for review of a certification and held that, consistent with the plain
language of CWA section 401(a)(1), ``while a full year is the absolute
maximum, [the statute] does not preclude a finding of waiver prior to
the passage of a full year.'' Hoopa Valley Tribe v. FERC, 913 F.3d
1099, 1104 (D.C. Cir. 2019). The court also noted that the EPA--``the
agency charged with administering the CWA''--has regulations that allow
it to find that a state has waived certification of an NPDES permit
application after only six months. Id.
    In Hoopa Valley Tribe, the D.C. Circuit also held that ``the
withdrawal-and-resubmission of water quality certification requests
does not trigger new statutory periods of review.'' Id. at 1101. The
court found that the project proponent and the certifying authorities
(California and Oregon) had improperly entered into an agreement
whereby the ``very same'' request for state certification of its
relicensing application was automatically withdrawn-and resubmitted
every year by operation of ``the same one-page letter,'' submitted to
the states before the statute's one-year waiver deadline. Id. at 1104.
The court observed that ``[d]etermining the effectiveness of such a
withdrawal-and-resubmission scheme is an undemanding inquiry'' because
the statute's text ``is clear'' that failure or refusal to act on a
request for certification within a reasonable period of time, not to
exceed one year, waives the state's ability to certify.\19\ Id. at
1103. The court found that, pursuant to the unlawful withdrawal-and
resubmission ``scheme,'' the states had not yet rendered a
certification decision ``more than a decade'' after the initial request
was submitted to the states. Id. at 1104. The court declined to
``resolve the legitimacy'' of an alternative arrangement whereby an
applicant may actually submit a new request in place of the old one.
Id. Nor did it determine ``how different a request must be to
constitute a `new request' such that it restarts the one-year clock.''
Id. On the facts before it, the court found that ``California's and
Oregon's deliberate and contractual idleness'' defied the statute's
one-year limitation and ``usurp[ed] FERC's control over whether and
when a federal license will issue.'' Id.
---------------------------------------------------------------------------

    \19\ Two decisions from the Second Circuit Court of Appeals
recently acknowledged that project proponents have withdrawn and
resubmitted certification requests to extend the reasonable time
period for a state to review. See N.Y. State Dep't of Envtl.
Conservation v. FERC, 884 F.3d at 456; Constitution Pipeline v. N.Y.
State Dep't of Envtl. Conservation, 868 F.3d 87, 94 (2d Cir. 2018).
However, in neither case did the court consider the merits or opine
on the legality of such an arrangement.
---------------------------------------------------------------------------

    Another important area of case law deals with the scope of
authority and deference provided to federal agencies other than the EPA
in addressing issues arising under section 401. Many other federal
agencies, including FERC and the Corps, routinely issue licenses and
permits that require section 401 certifications and are responsible for
enforcing state certification conditions that are incorporated into
federal licenses and permits. However, because the EPA has been charged
by Congress with administering the CWA, some courts have concluded that
those other federal agencies are not entitled to deference on their
interpretations of section 401. See Alabama Rivers Alliance v. FERC,
325 F.3d 290, 296-97 (D.C. Cir. 2002); California Trout, Inc. v. FERC,
313 F.3d 1131, 1133-34 (9th Cir. 2002); American Rivers, Inc. v. FERC,
129 F.3d 99, 107 (2d. Cir. 1997). Other courts have concluded that FERC
has 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) (FERC had an obligation to ``obtain some minimal
confirmation of such compliance.''); see also Keating v. FERC, 927 F.2d
616, 622-623, 625 (D.C. Cir. 1991) (while federal agency may not
question propriety of state certification before license has issued,
``FERC must at least decide whether the state's assertion of revocation
satisfies section 401(a)(3)'s predicate requirements.'').
    In an important determination of procedural authorities, the Second
Circuit affirmed that FERC--as the licensing agency--``may determine
whether the proper state has issued the certification or whether a
state has issued a certification within the prescribed period.'' Am.
Rivers, Inc., 129 F.3d at 110-111. This holding is consistent with and
supported by the implied statutory authority of a federal agency to
establish the ``reasonable period of time (which shall not exceed one
year)'' in the first place. 33 U.S.C. 1341(a)(1).
    Case law also highlights the potential enforcement challenges that
federal agencies face with section 401 certification conditions
included in federal licenses and permits. Federal agencies have been
admonished not to ``second guess'' a state's water quality
certification or its conditions, see, e.g., City of Tacoma, 460 F.3d at
67; Am. Rivers Inc., 129 F.3d at 107; U.S. Dept. 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.''),
even where the federal agency has attempted to impose conditions that
are more

stringent than the state's condition. See Sierra Club v. U.S. Army
Corps of Engineers, 909 F.3d 635, 648 (4th Cir. 2018) (``the plain
language of the Clean Water Act does not authorize the Corps to replace
a state condition with a meaningfully different alternative condition,
even if the Corps reasonably determines that the alternative condition
is more protective of water quality''); see also Lake Carriers'
Association v. EPA, 652 F.3d 1, 6, 12 (D.C. Cir. 2011) (concluding that
petitioners' request for additional notice and comment procedure on
state certification conditions would have been futile because ``the
petitioners have failed to establish that EPA can alter or reject state
certification conditions. . . .'' But the court also observed,
``[n]otably, the petitioners never argued that the certifications
failed to `compl[y] with the terms of section 401,' . . . by
overstepping traditional bounds of state authority to regulate
interstate commerce'' (citing City of Tacoma, 460 F.3d at 67) and the
court ``therefore need not consider whether EPA has authority to reject
state conditions under such circumstances.'')). But in Snoqualmie
Indian Tribe v. FERC, the Ninth Circuit upheld FERC's inclusion of
minimum flow requirements greater than those specified in the State of
Washington's certification as long as they ``do not conflict with or
weaken the protections provided by the [State] certification.'' 545
F.3d 1207, 1219 (9th Cir. 2008). In that case, FERC had added license
conditions increasing the minimum flows specified in the state's
certification in order to ``produce a great amount of mist'' which it
determined would ``augment the Tribe's religious experience,'' one of
the water's designated uses. Id.; see also cases discussed at section
III.F in this preamble affirming a role for federal agencies to confirm
whether certifications comply with the requirements of section 401.
    This proposal is intended to provide clarity to certifying
authorities, federal agencies, and project proponents, as it addresses
comprehensively and for the first time some competing case law and
attempts to clarify the scope of conditions that may be included in a
certification and the federal agencies' role in the certification
process.
5. Administrative Law Principles
    To understand the full context and legal basis for this proposal,
it is useful to understand some key governing principles of
administrative law. In general, administrative agencies can only
exercise authority provided by Congress, and courts must enforce
unambiguous terms that clearly express congressional intent. However,
when Congress delegates authority to administrative agencies, it
sometimes enacts ambiguous statutory provisions. To carry out their
congressionally authorized missions, agencies, including the EPA, must
often interpret ambiguous statutory terms. However, they must do so
consistent with congressional intent. In Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (Chevron),
the Supreme Court concluded that courts have a limited role when
reviewing agency interpretations of ambiguous statutory terms. In such
cases, reviewing courts defer to an agency's interpretation of
ambiguous terms if the agency's interpretation is reasonable. Under
Chevron, federal agencies--not federal courts--are charged in the first
instance with resolving statutory ambiguities to implement delegated
authority from Congress.
    The Supreme Court has described the Chevron analysis as a ``two-
step'' process. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2124
(2016). At step one, the reviewing court determines whether Congress
has ``directly spoken to the precise question at issue.'' Chevron, 467
U.S. at 842. If so, ``that is the end of the matter; for the court, as
well as the agency, must give effect to the unambiguously expressed
intent of Congress.'' Id. at 842-43. If the statute is silent or
ambiguous, the reviewing court proceeds to the second step, where the
court must defer to the agency's ``reasonable'' interpretation. Id. at
844.
    Chevron deference relies on the straightforward principle that,
``when Congress grants an agency the authority to administer a statute
by issuing regulations with the force of law, it presumes the agency
will use that authority to resolve ambiguities in the statutory
scheme.'' Encino Motorcars, 136 S. Ct. at 2125 (citing Chevron, 467
U.S. at 843-44). Indeed, courts have applied Chevron deference to an
agency's statutory interpretation ``when it appears that Congress
delegated authority to the agency generally to make rules carrying the
force of law, and that the agency interpretation claiming deference was
promulgated in the exercise of that authority.'' Mayo Found. for
Medical Educ. and Res. v. United States, 562 U.S. 44, 45 (2011)
(quoting United States v. Mead Corp., 533 U.S. 218, 226-27 (2001)).
    In Chevron, the Supreme Court reviewed the EPA's interpretation of
statutory language from the Clean Air Act Amendments of 1977. Congress
amended the Clean Air Act to impose requirements on states that had not
achieved the national air quality standards promulgated by the EPA.
States that had not attained the established air standards had to
implement a permit program that would regulate ``new or modified major
stationary sources'' of air pollution. Clean Air Act Amendments of
1977, Public Law 95-95, 91 Stat. 685 (1977). The EPA promulgated
regulations defining a ``stationary source'' as the entire plant where
pollutant-producing structures may be located. The EPA, therefore,
treated numerous pollution-producing structures collectively as a
single ``stationary source,'' even if those structures were part of the
same larger facility or complex. See 40 CFR 51.18(j)(1)(i)-(ii) (1983).
Under the EPA's regulation, a facility could modify or construct new
pollution-emitting structures as long as the stationary source--the
facility as a whole--did not increase its pollution emissions.
    The Natural Resources Defense Council (NRDC) opposed the EPA's
definition of ``stationary source'' and filed a challenge to the
Agency's regulations. The D.C. Circuit agreed with the NRDC and set
aside the EPA's regulations. The D.C. Circuit acknowledged that the
Clean Air Act ``does not explicitly define what Congress envisioned as
a `stationary source,' to which the permit program . . . should apply''
and also concluded that Congress had not clearly addressed the issue in
the legislative history. NRDC v. Gorsuch, 685 F.2d 718, 723 (D.C. Cir.
1982). Without clear text or intent from Congress, the D.C. Circuit
looked to the purposes of the program to guide the court's
interpretation. Id. at 726. According to the court, Congress sought to
improve air quality when it amended the Clean Air Act, and the EPA's
definition of ``stationary source'' merely promoted the maintenance of
current air quality standards.
    In a unanimous decision, the Supreme Court reversed, finding that
the D.C. Circuit committed a ``basic legal error'' by adopting ``a
static judicial definition of the term `stationary source' when it had
decided that Congress itself had not commanded that decision.''
Chevron, 467 U.S. at 842. The Court explained that it is not the
judiciary's place to establish a controlling interpretation of a
statute delegating authority to an agency, but, rather, it is the
agency's job to ``fill any gap left, implicitly or explicitly, by
Congress.'' Id. at 843. When Congress expressly delegates to an
administrative agency the authority to interpret a

statute through regulation, courts cannot substitute their own
interpretation of the statute when the agency has provided a reasonable
construction of the statute. See id. at 843-44.
    During the rulemaking process, the EPA had explained that Congress
had not fully addressed the definition of ``source'' in the amendments
to the Clean Air Act or in the legislative history. Id. at 858. The
Supreme Court agreed, concluding that ``the language of [the statute]
simply does not compel any given interpretation of the term `source.'
'' Id. at 860. And the legislative history associated with the
amendments was ``silent on the precise issue.'' Id. at 862.
    In its proposed and final rulemaking, the EPA noted that adopting
an individualized equipment definition of ``source'' could
disincentivize the modernization of plants, if industry had to go
through the permitting process to create changes. Id. at 858. The EPA
believed that adopting a plant-wide definition of ``source'' could
result in reduced pollution emissions. Id. Considering the Clean Air
Act's competing objectives of permitting economic growth and reducing
pollution emissions, the Supreme Court stated that ``the plantwide
definition is fully consistent with one of those concerns--the
allowance of reasonable economic growth--and, whether or not we believe
it most effectively implements the other, we must recognize that the
EPA has advanced a reasonable explanation for its conclusion that the
regulations serve the environmental objectives as well.'' Id. at 863.
The Court upheld the EPA's definition of the term ``stationary
source,'' explaining that ``the Administrator's interpretation
represents a reasonable accommodation of manifestly competing interests
and is entitled to deference: The regulatory scheme is technical and
complex, the agency considered the matter in a detailed and reasoned
fashion, and the decision involves reconciling conflicting policies.''
Id. at 865.\20\
---------------------------------------------------------------------------

    \20\ For other instructive applications of Chevron's
interpretative principles, see Entergy Corp. v. Riverkeeper, Inc.
556 U.S. 208, 222-223 (2009) (statutory silence interpreted as
``nothing more than a refusal to tie the agency's hands''); Zuni
Pub. School Dist. v. Dep't of Edu. 550 U.S. 81, 89-94 (2007) (court
considered whether agency's interpretation was reasonable in light
of the ``plain language of the statute'' as well as the statute's
``background and basic purposes''); Healthkeepers, Inc. v. Richmond
Ambulance Auth., 642 F.3d 466, 471 (4th Cir. 2011) (``statutory
construction . . . is a holistic endeavor'').
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    Even if a court has ruled on the interpretation of a statute, the
``court's prior judicial construction of a statute trumps an agency
construction otherwise entitled to Chevron deference only if the prior
court decision holds that its construction follows from the unambiguous
terms of the statute and thus leaves no room for agency discretion.''
Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Serv., 545 U.S. 967,
982 (2005) (emphasis added). Put another way, Brand X held that ``a
court's choice of one reasonable reading of an ambiguous statute does
not preclude an implementing agency from later adopting a different
reasonable interpretation.'' United States v. Eurodif S.A., 555 U.S.
305, 315 (2009). This principle stems from Chevron itself, which
``established a `presumption that Congress, when it left ambiguity in a
statute meant for implementation by an agency, understood that the
ambiguity would be resolved, first and foremost, by the agency, and
desired the agency (rather than the courts) to possess whatever degree
of discretion the ambiguity allows.' '' Brand X, 545 U.S. at 982
(quoting Smiley v. Citibank, 517 U.S. 735, 740-41 (1996)). Indeed, even
the ``initial agency interpretation is not instantly carved in stone.''
Chevron, 467 U.S. at 863.
    In Brand X, the Federal Communications Commission (FCC or
Commission) interpreted the scope of the Communications Act of 1934,
which subjects providers of ``telecommunications service'' to mandatory
common-carrier regulations. Brand X, 545 U.S. at 977-78. Brand X
internet Services challenged the FCC's interpretation, and the Ninth
Circuit concluded that the Commission could not permissibly construe
the Communications Act the way that it did based on the Court's earlier
precedent. Id. at 979-80. The Supreme Court granted certiorari and
reversed. The Supreme Court upheld the FCC's interpretation of the
Communications Act by applying Chevron's two-step analysis. The Court
found that the relevant statutory provisions failed to unambiguously
foreclose the Commission's interpretation, while other provisions were
silent. The FCC had ``discretion to fill the consequent statutory
gap,'' and its construction was reasonable. Id. at 997.
    The entire ``point of Chevron is to leave the discretion provided
by the ambiguities of a statute with the implementing agencies.'' Id.
at 981 (quoting Smiley, 517 U.S. at 742). The Supreme Court emphasized
that courts cannot override an agency's interpretation of an ambiguous
statute based on judicial precedent. Id. at 982. Instead, as a ``better
rule,'' a reviewing court only can rely on precedent that interprets a
statute at ``Chevron step one.'' Id. ``Only a judicial precedent
holding that the statute unambiguously forecloses the agency's
interpretation, and therefore contains no gap for the agency to fill,
displaces a conflicting agency construction.'' Id. at 982-83. A
contrary rule produces anomalous results because the controlling
interpretation would then turn on whether a court or the agency
interprets the statutory provision first. See id. at 983. Congress
delegated authority to agencies to interpret statutes and that
authority ``does not depend on the order in which the judicial and
administrative constructions occur.'' Id. Agencies have the authority
to revise ``unwise judicial constructions of ambiguous statutes.'' Id.
6. Legal Construct for the Proposed Rule
    As the preceding summary of the statutory, regulatory and judicial
history demonstrates, the most challenging aspects of section 401
concern the scope of review and action on a certification request, and
the amount of time available for a certifying authority to act. The
Agency is proposing a regulation that would clarify these aspects and
provide additional regulatory certainty for states, tribes, federal
agencies, and project proponents. This subsection summarizes some of
the core legal principles that inform this proposal, and the following
section (section III) describes how the Agency is applying those legal
principles to support the proposed regulation.
a. Scope of Certification
    The EPA has for the first time conducted a holistic analysis of the
text, structure, and history of CWA section 401. As a result of that
analysis, the EPA proposes to interpret the scope of section 401 as
protecting the quality of waters of the United States from point source
discharges associated with federally licensed or permitted activities
by requiring compliance with the CWA and EPA-approved state and tribal
CWA regulatory program provisions.
    Since at least 1973, the EPA has issued memoranda and guidance
documents and filed briefs in various court cases addressing section
401. Only a handful of these documents address the scope of section
401, and they were not the product of a holistic examination of the
statute or its legislative history and, as a result, included little
explanation for the Agency's interpretations. For example, in 1989, the
EPA issued a guidance document asserting that a section 401
certification could broadly address ``all of the potential effects of a
proposed

activity on water quality--direct and indirect, short and long term,
upstream and downstream, construction and operation. . . .'' EPA,
Wetlands and 401 Certification 23 (April 1989). The EPA's only
explanation for this assertion is a reference to section 401(a)(3),
which provides that a certification for a construction permit may also
be used for an operating permit that requires certification. The
guidance does not provide any analysis to support its assertion that a
certification could address all potential impacts from the ``proposed
activity'' as opposed to the discharge. Several years later, the United
States filed an amicus brief on behalf of the EPA in the PUD No. 1
case. The EPA's brief asserted that petitioners were ``mistaken'' in
their contention that the minimum flow condition is outside the scope
of section 401 because it does not address a discharge, but the brief
provided no analysis to support this position. The EPA's brief also did
not offer an affirmative interpretation to harmonize the different
language in sections 401(a) and 401(d). More than a decade later, the
EPA's amicus brief in the S.D. Warren case simply adopted the Supreme
Court's analysis in PUD No. 1 that once section 401 is triggered by a
discharge, a certification can broadly cover impacts from the entire
activity. Finally, in 2010 the EPA issued its now-rescinded Interim
Handbook which included a number of recommendations on scope, timing,
and other issues, none of which were supported with robust analysis or
interpretation of the Act.
    This proposed rulemaking marks the first time that the EPA has
undertaken a holistic review of the text of section 401 in the larger
context of the structure and legislative history of the 1972 Act and
earlier federal water protection statutes and the first time the Agency
has subjected its analysis to public notice and comment. The proposed
regulation is informed by this holistic review and presents a framework
that EPA considers to be most consistent with congressional intent. The
Agency solicits comments on whether the proposed approach appropriately
captures the scope of authority for granting, conditioning, denying,
and waiving a section 401 certification.
i. Water Quality
    The EPA proposes to conclude that the scope of a section 401 review
or action must be limited to considerations of water quality. The
Congressional purpose of the CWA is to protect and maintain water
quality, and there is no suggestion in either the plain language or
structure of the statute that Congress envisioned section 401 to
authorize action beyond that which is necessary to address water
quality directly. Indeed, as described in greater detail above, the
1972 amendments to the CWA resulted in the enactment of a comprehensive
scheme designed to prevent, reduce, and eliminate pollution in the
nation's waters generally, and to regulate the discharge of pollutants
into waters of the United States specifically.
    The EPA is aware that certifying authorities may have previously
interpreted the scope of section 401 in a way that resulted in the
incorporation of non-water quality related considerations into their
certification review process. For example, certifying authorities have
included conditions not related directly to water quality in section
401 certifications, including requiring construction of biking and
hiking trails, requiring one-time and recurring payments to state
agencies for improvements or enhancements that are unrelated to the
proposed federally licensed or permitted project, and creating public
access for fishing along waters of the United States. Certifying
authorities have also attempted to address all potential impacts from
the operation or subsequent use of products generated by a proposed
federally licensed or permitted project that may be identified in an
environmental impact statement or environmental assessment, prepared
pursuant to the NEPA or a state law equivalent. This includes, for
example, consideration of impacts associated with air emissions and
transportation effects.
    The Agency proposes to conclude that expanding the scope of section
401 to include consideration of effects and the imposition of
conditions unrelated to water quality would, at a minimum, invoke the
outer limits of power Congress delegated under the CWA. There is
nothing in the text of the statute or its legislative history that
signals that Congress intended to impose federal regulations on
anything more than water quality-related impacts to waters of the
United States. Indeed, Congress knows how to craft statutes to require
consideration of multi-media effects, see 42 U.S.C. 4321 et seq.
(NEPA), and has enacted specific statutes addressing impacts to air
(Clean Air Act), land (Resource Conservation and Recovery Act),
wildlife (Endangered Species Act), and cultural resources (National
Historic Preservation Act), by way of example.\21\ Subsequent
congressional action directly addressing a particular subject is
relevant to determining whether a previously adopted statute reaches
that subject matter. See FDA v. Brown & Williamson Tobacco Corp., 529
U.S. 120, 155 (2000) (determining that ``actions by Congress over the
past 35 years'' that addressed tobacco directly, when ``taken
together,'' ``preclude[d] an interpretation'' that a previously adopted
statute, the Food, Drug, and Cosmetic Act, ``grant[ed] the FDA
jurisdiction to regulate tobacco products.'').
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    \21\ See, e.g., 42 U.S.C. 7401 et seq. (Clean Air Act); 42
U.S.C. 6901 et seq. (Resource Conservation and Recovery Act); 16
U.S.C. 1531 et seq. (Endangered Species Act); and 16 U.S.C. 470 et
seq. (National Historic Preservation Act).
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    If Congress intended section 401 of the CWA to authorize
consideration or the imposition of certification conditions based on
air quality concerns, public access to waters, energy policy, or other
multi-media or non-water quality impacts, it would have provided a
clear statement to that effect. Neither the CWA nor section 401 contain
any such clear statement. In fact, Congress specifically contemplated a
broader policy direction in the 1972 amendments that would have
authorized the EPA to address impacts to land, air and water through
implementation of the CWA, but it was rejected.\22\ Agencies must avoid
interpretations of the statutes they implement to avoid pressing the
envelope of constitutional validity absent a clear statement from
Congress to do so. See SWANCC, 531 U.S. at 172-73; Rapanos, 547 U.S. at
738 (Scalia, J., plurality). That includes interpretations of the
statute that would provide states, tribes and the EPA the ability to
regulate interstate commerce beyond the four corners of the CWA. See
discussion supra at section II.F.1 in this preamble. The Agency
proposes to conclude that inclusion of the phrase ``other appropriate
requirements of state law'' in section 401(d) lacks that clear
direction from Congress.\23\
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    \22\ As Congress drafted the 1972 CWA amendments, the House bill
(H.R. 11896) included section 101(g) within its ``Declaration of
Goals and Policy'' providing, ``(g) In the implementation of this
Act, agencies responsible therefor shall consider all potential
impacts relating to the water, land, and air to insure that other
significant environmental degradation and damage to the health and
welfare of man does not result.'' H.R. 11896, 92nd Cong. (1971).
Section 101(g) of the House bill was ``eliminated'' at conference,
and the Act was ultimately passed with no federal policy, goal or
directive to address non-water quality impacts through the CWA. S.
Rep. 92-1236, at 100 (1972) (Conf. Rep.).
    \23\ The Agency also proposes to conclude that the use of the
term ``applicant'' in 401(d) creates ambiguity in the statute. See
section II.F.6.a.ii in this preamble for discussion on the use of
the term ``applicant'' in section 401(d).
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    Pursuant to the plain language of section 401, when a state or
authorized tribe (and in some cases, the EPA) issues

a certification, it has determined that the discharge to waters of the
United States from a proposed federally licensed or permitted activity
will comply with applicable effluent limitations for new and existing
sources (CWA sections 301, 302 and 306), water quality standards and
implementation plans (section 303), toxic pretreatment effluent
standards (section 307), and other ``appropriate requirements'' of
state or tribal law. 33 U.S.C. 1341(a)(1), (d). The enumerated CWA
provisions identify requirements to ensure that discharges of
pollutants do not degrade water quality,\24\ and specifically
referenced throughout section 401 is the requirement to ensure
compliance with ``applicable effluent limitations'' and ``water quality
requirements,'' underscoring the focused intent of this provision on
the protection of water quality from discharges.\25\ See 33 U.S.C.
1341(a), (b), (d). The legislative history for the Act provides further
support for the EPA's interpretation, as it frequently notes the focus
of the section is on assuring compliance with water quality
requirements and water quality standards and the elimination of any
discharges of pollutants. See e.g., S. Rep. No. 92-414, at 69 (1971).
---------------------------------------------------------------------------

    \24\ For example, section 306 defines the standard of
performance for new sources of discharges as ``a standard for the
control of the discharge of pollutants which reflects the greatest
degree of effluent reduction which the Administrator determines to
be achievable through application of best available demonstrated
control technology, processes, operating methods, or other
alternatives, including, where practicable, a standard permitting no
discharge of pollutants.'' 33 U.S.C. 1316(a)(1). Section 303 notes
that new or revised state water quality standards ``[s]hall be such
as to protect the public health or welfare, enhance the quality of
water and serve the purposes of this chapter.'' Id. at
1313(c)(2)(A).
    \25\ The term ``effluent limit'' is defined as, ``any
restriction established by a State or the Administrator on
quantities, rates, and concentrations of chemical, physical,
biological, and other constituents which are discharged from point
sources into navigable waters, the waters of the contiguous zone, or
the ocean, including schedules of compliance[,]'' 33 U.S.C.
1362(11); and the CWA requires that ``water quality standards''
developed by states and tribes ``consist of the designated uses of
the navigable waters involved and the water quality criteria for
such waters based upon such uses.'' Id. at 1313(c)(2)(A).
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    The CWA does not define what is an ``appropriate requirement'' of
state law that should be considered as part of a section 401 review,
and the Agency acknowledges the need to respect the clear policy
direction from Congress to recognize and preserve state authority over
land and water resources within their borders. See 33 U.S.C. 1251(b).
Indeed, the Agency must avoid interpretations of the CWA that infringe
on traditional state land use planning authority. See SWANCC, 531 U.S.
at 172-73; Will, 491 U.S. at 65. One potential interpretation of this
clause in section 401(d) could be to authorize the imposition of
conditions or veto authority over a federal license or permit based on
non-water quality related impacts if those requirements are based on
existing state law. But such an interpretation could authorize the EPA
as a certifying authority to push the constitutional envelope of its
delegated authority into regulatory arenas more appropriately reserved
to the states, ``powers with which Congress does not readily
interfere.'' Gregory, 501 U.S. at 461 (describing the ``plain statement
rule'').
    More importantly, the Agency does not believe that Congress
intended the phrase ``any other appropriate requirements of State law''
to be read so broadly. Instead, the principle ejusdem generis helps to
inform the appropriate interpretation of the text. Under this
principle, where general words follow an enumeration of two or more
things, they apply only to things of the same general kind or class
specifically mentioned. See Washington State Dept. of Social and Health
Services v. Keffeler, 537 U.S. 371, 383-85 (2003). Here, the general
term ``appropriate requirement'' follows an enumeration of four
specific sections of the CWA that are all focused on the protection of
water quality from point source discharges to waters of the United
States. Given the text, structure, purpose, and legislative history of
the CWA and section 401, the EPA proposes to interpret ``appropriate
requirements'' for section 401 certification review to include those
provisions of state or tribal law that are EPA-approved CWA regulatory
programs that control discharges, including provisions that are more
stringent than federal law. See S. Rep. No. 92-414, at 69 (1971) (``In
addition, this provision makes clear that any water quality
requirements established under State law, more stringent than those
requirements established under the Act, shall through certification
become conditions on any Federal license or permit.''). In this
respect, the EPA agrees with the logic of Justice Thomas's dissent in
PUD No. 1, wherein he concludes that ``the general reference to
`appropriate' requirements of state law is most reasonably construed to
extend only to provisions that, like other provisions in the list,
impose discharge-related restrictions.'' PUD No. 1, 511 U.S. at 728
(Thomas, J., dissenting). The CWA provisions that regulate point source
discharges to waters of the United States, and those discharge-related
restrictions referenced in Justice Thomas's dissent, are the
``regulatory provisions of the CWA.'' When states or tribes enact CWA
regulatory provisions as part of a state or tribal program, including
those designed to implement the section 402 and 404 permit programs and
those that are more stringent than federal requirements, those
provisions require EPA approval before they become effective for CWA
purposes. Because the EPA interprets ``appropriate requirements'' to
mean the regulatory provisions of the CWA, it follows that those would
necessarily be EPA-approved provisions. The EPA requests comment on
whether this interpretation is a reasonable and appropriate reading of
the statute and related legal authorities.
ii. Activity Versus Discharge
    Based on the text, structure, and legislative history of the CWA,
the EPA proposes to conclude that a certifying authority's review and
action under section 401 must be limited to water quality impacts from
the potential discharge associated with a proposed federally licensed
or permitted project. Section 401(a) explicitly provides that the
certifying authority, described as ``the State in which the discharge
originates or will originate,'' must certify that ``any such discharge