the Agency is bifurcating the minimum content requirements for an
individual Federal license or permit and the issuance of a general
Federal license or permit. Under the final rule, if the request for
certification is for an individual Federal license or permit, the
request for certification must include a copy of the Federal license or
permit application and any readily available water quality-related
materials that informed the development of the application. If the
request for certification is for the issuance of a general Federal
license or permit, then the request for certification must include a
copy of the draft Federal license or permit and any readily available
water quality-related materials that informed the development of the
draft Federal license or permit. For all requests for certification,
the final rule requires a certifying authority to send written
confirmation to the project proponent and Federal agency of the date
that a request for certification is received by the certifying
authority in accordance with its applicable submission procedures.
    Additionally, the final rule provides that where a project
proponent is seeking certification from EPA when the Agency is the
certifying authority, or from a state or authorized Tribe that does not
specify additional contents of a request for certification (e.g.,
through regulation, forms, etc.), the project proponent must also
submit seven additional components, as applicable, including: (1) A
description of the proposed activity, including the purpose of the
proposed activity and the type(s) of discharge(s) that may result from
the proposed activity; (2) The specific location of any discharge(s)
that may result from the proposed activity; (3) A map or diagram of the
proposed activity site, including the proposed activity boundaries in
relation to local streets, roads, and highways; (4) A description of
current activity site conditions, including but not limited to relevant
site data, photographs that represent current site conditions, or other
relevant documentation; (5) The date(s) on which the proposed activity
is planned to begin and end and, if known, the approximate date(s) when
any discharge(s) may commence; (6) A list of all other Federal,
interstate, Tribal, state, territorial, or local agency authorizations
required for the proposed activity and the current status of each
authorization; and (7) Documentation that a pre-filing meeting request
was submitted to the certifying authority in accordance with applicable
submission procedures, unless the pre-filing

meeting request requirement was waived. 40 CFR 121.5(b).
    The Agency is also finalizing the ability for state or Tribal
certifying authorities to define the additional contents of a request
for certification in regulation or another appropriate manner, such as
an official form used for requests for certification, in lieu of
relying on EPA's default list of additional contents. Therefore, under
this final rule, where a project proponent is requesting certification
from a certifying authority other than EPA and that certifying
authority has identified additional required contents of a request for
certification beyond the minimum contents outlined in 40 CFR 121.5(a),
then the request for certification must include those additional
required contents.
    The Agency restructured Sec.  121.5 to clarify which components are
required for all requests for certification versus which components
depend on the certifying authority. Section 121.5(a) defines the
minimal contents for all requests for certification, no matter the
certifying authority (i.e., states, Tribes, or EPA). Section 121.5(b)
defines the additional contents in a request for certification when EPA
is the certifying authority. Section 121.5(c) clarifies that if the
certifying authority is a state or authorized Tribe that has identified
additional contents for a request for certification, then the project
proponent must include those additional contents in a request for
certification. Lastly, Sec.  121.5(d) clarifies that if the certifying
authority is a state or authorized Tribe that has not identified
additional contents for a request for certification, then the project
proponent must include those additional contents defined at Sec.
121.5(b) in a request for certification. This structural change is
intended to provide greater clarity for stakeholders in implementation
of this final rule.
2. Summary of Final Rule Rationale and Public Comment
    Section 401(a)(1) provides that the certifying authority's
reasonable period of time to act starts after a certifying authority is
in ``receipt'' of a ``request for certification'' from a project
proponent. 33 U.S.C. 1341(a) (``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.'') (emphasis added). The statute does not define
either ``request for certification'' or ``receipt.''
    In the 2020 Rule, the Agency defined ``certification request'' for
all certifying authorities and asserted that ambiguities in the
statutory language had led to inefficiencies in the certification
process. 40 CFR 121.5 (2020); see 85 FR 42243 (July 13, 2020). In
particular, the 2020 Rule preamble provided that states and authorized
Tribes could not rely on state or tribally defined ``complete
applications'' to start the certification process, but rather must rely
on a certification request as defined in EPA's regulation to initiate
the process. The Agency relied on New York State Department of
Environmental Conservation v. FERC, in which the Court of Appeals for
the Second Circuit rejected New York's argument that the section 401
process ``begins only once [the state agency] deems an application
`complete' '' and, instead, agreed with FERC that the section 401
review process begins when the state receives a request for
certification. 884 F.3d 450, 455 (2d Cir. 2018) (``NYSDEC''). The court
found that ``[t]he plain language of Section 401 outlines a bright-line
rule regarding the beginning of review'' and reasoned that ``[i]f the
statute required `complete' applications, states could blur this
bright-line rule into a subjective standard, dictating that
applications are `complete' only when state agencies decide they have
all the information they need.'' Id. at 455-56.
    Some commenters asserted that the 2020 Rule's approach provided
clarity about the requirements for project proponents to request
certification and when the reasonable period of time begins. These
commenters stated that the 2020 Rule created a predictable and
transparent certification process by defining a clear list of contents
of certification requests. Conversely, some commenters highlighted
challenges with implementing the 2020 Rule's approach for certification
requests. Commenters stated that 2020 Rule requirements were
disconnected from longstanding cooperative processes established among
stakeholders and created confusion due to differences from certifying
authorities' requirements.
    EPA agrees that defining some minimum components of a request for
certification increases clarity and efficiency in the certification
process. Recognizing that some certifying authorities already have or
will define additional requirements for requests for certification they
receive, EPA is only defining minimum contents for all requests for
certification. EPA finds this approach best respects longstanding state
and Tribal processes familiar to stakeholders and enables states and
Tribes to determine their specific information needs. EPA is also
finalizing additional contents for requests for certification to EPA or
states and Tribes that fail to define such additional contents to
provide stakeholders with greater certainty and predictability in the
certification process. The final rule establishes an approach that
provides efficiency for requests for certification, while staying
consistent with cooperative federalism principles and case law.
    EPA is also finalizing conforming changes to the part 124
regulations governing the contents of a request for certification of
EPA-issued NPDES permits. EPA proposed to delete Sec.  124.53(b)
because the provision allowed a request for certification to precede
development of a draft NPDES permit, which was inconsistent with the
proposed rule. EPA also proposed to delete Sec.  124.53(c) because the
list of contents at Sec.  124.53(c) differed from the proposed list of
contents. See 87 FR 35336-57 (June 9, 2022). In light of changes in the
final rule, EPA is not deleting in full Sec.  124.53(b) or (c), and
instead is making targeted revisions to be consistent with the final
rule. First, EPA is revising 40 CFR 124.53(b), which provided that when
EPA received a permit application without certification, EPA shall
forward the application to the certifying authority with a request that
certification be granted or denied. EPA is revising Sec.  124.53(b) to
clarify that EPA may forward permit applications for individual NPDES
permits to a certifying authority and request certification consistent
with final rule Sec. Sec.  121.4 and 121.5 (e.g., EPA will request a
pre-filing meeting and include contents for a request for certification
consistent with this final rule). It is worth noting that although
Sec.  124.53(b) allows EPA to request certification on a permit
application for individual permits (consistent with this final rule),
this approach is not common practice. Under the final rule and Sec.
124.53(c), EPA may continue to request certification after the draft
individual or general NPDES permit is prepared (and include a copy of
draft permit in the request for certification). Nevertheless, EPA is
retaining Sec.  124.53(b) with the revisions discussed above to provide
stakeholders and EPA with flexibility to request certification prior to
developing a draft individual NPDES permit.
    Second, EPA is also revising 40 CFR 124.53(c), which identified the
required contents of a request for certification of an EPA-issued NPDES
permit if a certification had not been received by the time the draft
permit is prepared.

EPA is revising Sec.  124.53(c) to specify that if certification has
not been requested by the time a draft NPDES permit is prepared, EPA
will send a request for certification consistent with final rule Sec.
121.5, and will include a copy of the draft permit with that request.
EPA is finalizing deletions of the required contents of a request for
certification in Sec.  124.53(c)(2) and (3) because the list of
contents at Sec.  124.53(c)(2) and (3) differ from the list of contents
in Sec.  121.5. Also, as explained in section IV.D in this preamble,
the statement required at Sec.  124.53(c)(3) regarding the reasonable
period of time was not consistent with the approach to the reasonable
period of time at Sec.  121.6.
    The following sections discuss the minimum contents for all
requests for certification, state and Tribal authority to define
additional contents, the additional contents defined by EPA and their
application in instances where states and Tribes decline to define such
additional contents, and when a certifying authority is in ``receipt''
of a request for certification.
a. Minimum Contents of a Request for Certification
i. Application or Draft Federal License or Permit
    In a change from the proposed rule, EPA is finalizing that all
requests for certification on an individual Federal license or permit
shall include ``[a] copy of the Federal license or permit application
submitted to the Federal agency,'' while all requests for certification
on the issuance of a general Federal license or permit shall include
``[a] copy of the draft Federal license or permit.'' 40 CFR 121.5(a).
EPA proposed in Sec.  121.5(a) that all requests for certification
``shall include a copy of the draft license or permit'' to ensure that
states and Tribes have the critical information to make a timely and
informed certification decision. 87 FR 35332. Many commenters opposed
this approach for various reasons, including but not limited to
possible impacts to certifying authority practice and relationships,
concerns over potential delays, and concerns over how the proposed
approach would work in instances where a Federal agency does not
develop a draft license or permit, particularly for individual Federal
licenses or permits.
    In response to comments, EPA decided to partially change the
requirement in the final rule to require that all requests for
certification on an individual Federal license or permit include the
Federal license or permit application at a minimum, instead of the
draft Federal license or permit. See 40 CFR 121.5(a)(1). EPA recognizes
that with respect to general Federal licenses and permits, there often
is no formal ``application,'' and for that reason the final rule allows
the Federal agencies issuing those general Federal licenses and permits
to submit the draft general Federal license or permit to the certifying
authority instead of a Federal license or permit ``application.'' See
40 CFR 121.5(a)(2). EPA's bifurcated approach for requests for
certification for individual Federal licenses or permits and for the
issuance of general Federal licenses or permits promotes clarity and
should minimize delays in the licensing and permitting process, since
EPA anticipates most stakeholders are familiar with starting the
section 401 certification process with a Federal license or permit
application (for individual licenses or permits) or with a copy of the
draft Federal license or permit (for the issuance of a general license
or permit). Additionally, this bifurcation is modeled on the separate
lists for the contents of requests for certification included in the
2020 Rule.
ii. Water Quality-Related Materials
    In the final rule, EPA is requiring project proponents to include
``any readily available water quality-related materials that informed
the development of the application'' for requests for certification for
individual Federal licenses or permits. See 40 CFR 121.5(a)(1)(ii). In
the case that the request for certification is for the issuance of a
general Federal license or permit, it must include ``any readily
available water quality-related materials that informed the development
of the draft Federal license or permit.'' See 40 CFR 121.5(a)(2)(ii).
The term ``readily available water quality-related materials that
informed the development of'' either the application or the draft
license or permit refers to existing water quality-related materials
that are in the project proponent's possession or easily obtainable
\43\ and informed the project proponent's development of the
application or draft license or permit. These materials for either
request may include, but are not limited to, water quality baseline
conditions from the project site, sediment and erosion control plans,
restoration plans, alternatives analyses, mitigation plans, modeling,
and/or other materials that have already been developed for the Federal
license or permit application or draft license or permit and would help
inform the certifying authority of the water quality-related impacts
from the activity.\44\
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    \43\ For example, this could include maps, studies, or a
reference to a website or literature that contain information that
informed the development of the application or draft license or
permit.
    \44\ These examples are not intended to be exhaustive, nor does
EPA expect that all of the example materials listed will be readily
available and/or materials that informed the develop of the
application or draft Federal license or permit in all cases. Rather,
EPA is providing these examples because these are materials that EPA
has previously asked for and found informative when conducting its
reviews of requests for certification.
---------------------------------------------------------------------------

    The Agency had proposed that, at a minimum, all requests for
certification include ``any existing and readily available data or
information related to potential water quality impacts from the
proposed project.'' EPA intended that providing certifying authorities
with any existing and readily available data or information related to
potential water quality impacts from the proposed project, such as
studies or an EIS or Environmental Assessment (EA) or other water
quality monitoring data, would reduce the need for duplicative studies
and analyses. Several commenters supported the requirement that the
request for certification include ``any existing and readily available
data or information related to potential water quality impacts from the
proposed project,'' and a few commenters noted that this information is
important for decision-making and allows certifying authorities to
better evaluate potential impacts of a project. Conversely, many
commenters did not support the inclusion of ``any existing and readily
available data or information related to potential water quality
impacts from the proposed project,'' arguing that it was unclear and
would be difficult to implement. Some of these commenters added that
the requirement would create confusion and delays in the certification
process.
    In response to commenter concerns, EPA is adjusting the regulatory
text in the final rule to read ``any readily available water quality-
related materials that informed the development of'' the application or
draft general Federal license or permit. See 40 CFR 121.5(a)(1)(ii),
(a)(2)(ii). EPA recognizes the importance of providing certifying
authorities with critical information to inform their analysis while at
the same time considering important implementation details. First, this
revision provides a predictable endpoint for project proponents because
it is limited to existing data or information that was used in the
development of the Federal license or permit application or the draft
general Federal license or permit. Second, consistent with the

scope of review under this final rule, this revision limits any such
materials to ``water quality-related materials.'' This will ensure that
project proponents provide certifying authorities with pertinent water
quality-related information to fully inform their certification
analysis. EPA also finds that limiting such materials to ``water
quality-related'' should clarify that project proponents may redact or
exclude personally identifiable information (e.g., personal addresses,
personal finance information) and/or other sensitive information.
    A few commenters asserted that while they supported the minimum
requirements of the proposed rule, they believed that the Agency should
not limit certifying authorities to ``any existing and readily
available'' and suggested deleting the phrase or clarifying that it
should not be construed to restrict a certifying authority from
requesting new, additional, or not-yet available data related to the
proposed activity. EPA appreciates these concerns, however, as
discussed above, the Agency finds it reasonable and appropriate for the
rule to balance certifying authority information needs with legitimate
implementation concerns by limiting the default requirements to
existing, readily available information. However, if there are other
materials that did not necessarily ``inform the development'' of the
application or draft Federal license or permit (e.g., section 402
permit factsheets, permit description presentations, etc.), the
certifying authority is free to define such materials in its additional
contents for a request for certification, see discussion infra, or
request such additional information after receiving a request for
certification. A project proponent may also include any additional
information in the request for certification. Furthermore, certifying
authorities are encouraged to use the pre-filing meeting request
process to further communicate appropriate water quality-related
materials that would be helpful in reviewing a request for
certification on an individual Federal license or permit.
b. Additional Contents in a Request for Certification
    Consistent with the proposed rule, EPA is finalizing that where a
``certifying authority has identified contents of a request for
certification'' that are relevant to the water quality-related impacts
from the activity, in addition to the minimum requirements discussed
above, ``the project proponent shall include in the request for
certification those additional contents identified prior to when the
request for certification is made.'' 40 CFR 121.5(c). The Agency is
also finalizing a set of additional contents that a project proponent
must include in a request for certification when EPA acts as the
certifying authority. 40 CFR 121.5(b). For further clarity, the
additional contents listed at Sec.  121.5(b) are required in each
request for certification to a state or authorized Tribe that has not
established its own list of requirements. If a state or authorized
Tribe has established its own list for a request for certification,
then EPA's list of additional contents would not apply. The Agency has
restructured Sec.  121.5 to clearly distinguish between requirements
that apply to all requests for certification, see Sec.  121.5(a),
versus requirements that only apply to requests for certification to
EPA or states or Tribes that fail to define additional contents, see
Sec.  121.5(b) and (d), or requirements that apply to requests for
certification to states or Tribes that define additional contents, see
Sec.  121.5(c).
    EPA acknowledges that this final rule's approach contrasts with the
approach taken in the 2020 Rule, which defined the contents of a
certification request for all certifying authorities. However, this
final rule is a better--and more flexible--approach to defining the
term ``request'' and consistent with NYSDEC. That decision holds that
the reasonable period of time begins after receipt of a request for
certification and not when a state deems it ``complete;'' it does not
preclude EPA or other certifying authorities from defining--in
advance--those contents a certification request must contain. As
discussed below, this approach is consistent with stakeholder input and
the cooperative federalism principles central to section 401 and the
CWA.
i. State and Tribal Certifying Authorities
    Under Sec.  121.5(c), ``[w]here a project proponent is seeking
certification from a certifying authority other than the Regional
Administrator, and that certifying authority has identified contents of
a request for certification in addition to those identified in
paragraph (a) of [Sec.  121.5], the project proponent shall include in
the request for certification those additional contents identified
prior to when the request for certification is made.'' This approach is
consistent with the proposal and the intent of the Act, is reasonable,
is responsive to concerns and considerations raised through the public
comment process, and ultimately is the most efficient path forward.
    Many commenters supported certifying authorities having the ability
to define the contents of a request for certification, saying that it
ensures states and Tribes have the information they need to protect
their water quality. Commenters provided a variety of reasons why they
supported this approach, including asserting that it will ensure a
comprehensive review under section 401 in the reasonable period of time
and enable states and Tribes to ensure they have needed information to
determine whether a project will comply with their water quality
requirements. Several commenters argued that this approach is an
improvement over the 2020 Rule's ``one-size fits all'' approach to
request for certification. EPA agrees that certifying authorities are
best suited for determining their needs in making their certification
decisions.
    As an initial matter, the Agency finds it is reasonable for states
and Tribes to have the authority to determine what information is
necessary to initiate the certification process under section 401 in
compliance with their own water quality requirements. In order to
effectuate Congress's goals and directives for section 401 in the
limited amount of time provided by the Act, it is reasonable that
certifying authorities should be able to define what information, in
addition to a copy of the Federal license or permit application and any
water quality-related materials that informed the development of the
application, is necessary to make an informed decision regarding
protecting their water quality from adverse effects from a federally
licensed or permitted activity. Defining an exclusive list of
components for requests for certification for all certifying
authorities could inhibit a comprehensive review under section 401 in
the reasonable period of time. The diverse nature of Federal licenses
and permits and the variety of potential water quality impacts from
those different types of activities do not lend themselves to a one-
size-fits-all approach.
    Indeed, to define an exclusive list of contents would frustrate the
intent of the Act's emphasis on cooperative federalism and lead to
procedural inefficiencies. Specifically, a framework requiring the
reasonable period of time to begin before the certifying authority has
essential information that it has transparently publicized as necessary
to make its own certification decision would be inconsistent with the
language, goals, and intent of the statute. Congress clearly did not
intend section 401 reviews to turn on incomplete applications, and the

reasonable period of time and one-year backstop were added by Congress
to ensure that ``sheer inactivity by the State . . . will not frustrate
the Federal application.'' H.R. Rep. No. 92-911, at 122 (1972).
Moreover, this approach should be familiar to project proponents who
followed specific requirements established by states and Tribes during
the last approximately 50 years. The Agency's final approach will allow
for a transparent and timely process that respects the role of state
and Tribal certifying authorities under the cooperative federalism
framework of section 401.
    Some commenters opposed the proposed rule and argued that the
Agency cannot delegate the ability to define additional requirements
for a certification request to certifying authorities under NYSDEC. The
Agency does not agree. In NYSDEC, the Second Circuit never addressed
the separate question of whether EPA or certifying authorities have the
underlying authority to establish--in advance of receiving a request
for certification--a list of required contents for such a request.
Accordingly, the court's holding that the reasonable period of time
begins after ``receipt'' does not preclude the Agency from establishing
such a list of minimum ``request for certification'' requirements, or
from allowing certifying authorities to add requirements to EPA's list
or develop their own lists of request requirements. Because the statute
does not define the term ``request for certification,'' EPA and other
certifying authorities may do so in a reasonable manner that
establishes--in advance of receiving the request--a discernable and
predictable set of requirements for a request for certification that
starts the reasonable period of time. No court has considered this
issue and come to the opposite conclusion. The Agency decides,
consistent with principles of cooperative federalism enshrined in the
Act, to continue this lawful, familiar, and time-tested practice.
    Most commenters that opposed this approach argued that, as an
implementation matter, EPA is inviting certifying authorities to engage
in the types of practices that were rejected by the Second Circuit in
NYSDEC. Specifically, commenters asserted that the proposed approach
would allow certifying authorities to issue regulations that expand the
required contents of a request for certification without any oversight
or limits and for reasons other than potential water quality impacts.
Other commenters asserted that the proposed approach did not enforce
any transparency requirements against certifying authorities, and,
therefore, certifying authorities would vaguely or broadly define the
minimum contents or require information that was currently unavailable
to stall the start of the reasonable period of time. Still other
commenters argued that the ability of states and authorized Tribes to
define the contents for a request for certification would result in a
patchwork of different requirements, placing burdens on project
proponents, especially for projects that span multiple states. The
Agency acknowledges these concerns and has incorporated reasonable
changes into the final rule that establish sufficient guardrails to
prevent those practices, while also allowing certifying authorities to
act on a request for certification in a timely and informed manner.
    First, as identified in Sec.  121.3, the scope of the certifying
authority's review is explicitly limited in the final rule to ``the
water quality-related impacts.'' To clarify that such limitations
extend to the contents of a request for certification, EPA added text
at Sec.  121.5(c) that such additional contents are ``relevant to the
water quality-related impacts from the activity.'' Hence, contents of
requests for certification that are substantively beyond the scope of
water quality-related impacts cannot be reasonably necessary to make an
informed decision regarding the potential water quality-related impacts
from the activity, and thus would not be in conformity with the
regulation. The regulatory text provides flexibility within the scope
for certifying authorities interested in developing their own
additional contents of requests for certification.
    Next, Sec.  121.5(c) itself limits the ability of a certifying
authority to request materials to those ``identified prior to when the
request for certification is made.'' Although the Agency is allowing
states and authorized Tribes to define their own additional
requirements for a request for certification, the rule provides a
backstop for those states or authorized Tribes that either do not
identify those additional requirements before the request for
certification is made or change their requirements after the request
for certification is made. In other words, certifying authorities
cannot subsequently modify or add to the required contents of a request
for certification after the request was submitted. This does not mean a
certifying authority could not ask for additional information after a
request for certification is made; rather, a certifying authority
cannot alter the required contents of a request for certification after
it is received.
    The Agency expects that those states and authorized Tribes that
choose to identify additional contents in a request for certification
will do so clearly enough to provide project proponents with full
transparency as to what is required. Relatedly, to remain consistent
with legal precedent, states and authorized Tribes should avoid non-
exhaustive or vague lists that a certifying authority could rely on to
continually deem requests incomplete. When developing their lists of
additional contents in a request for certification, EPA recommends that
certifying states and authorized Tribes look to Sec.  121.5(b) for the
list of contents EPA has outlined for requests for certification when
it acts as a certifying authority as a guide to help the certifying
state or authorized Tribe develop its own list.
    The Agency originally proposed that the contents of a request for
certification be established by a state or authorized Tribe in
regulation. Several commenters disagreed that certifying authorities
should be limited to defining the contents of a request for
certification in regulation. A few commenters asserted that the
contents do not need to be in a regulation to be transparent or
publicly available, while a few commenters urged EPA to consider that
some state processes are well-known to the regulated community or have
been used for 50 years. A few of these commenters argued that states
use different approaches to defining the contents of a certification
request, including statute, policy documents, application forms, and
guidance. These commenters asserted that placing the contents of a
request in regulation would be an unnecessary burden, time consuming
(e.g., may require legislative approval before going into effect), and
interfere with a state's ability to describe the information in
certification request. Conversely, some commenters asserted that by
allowing the certifying authority to set the minimum requirements, and
requiring those minimum requirements to be in regulation, the project
proponent, the certifying authority, and the public would be fully
informed of when the reasonable time begins and ends. One commenter
asserted that Due Process and basic fairness require certifying
authorities to publish such contents clearly and authoritatively and
asserted that EPA should clarify that certification request
requirements and receipt timing cannot be tied to procedures or
requirements that are not adopted and published as regulations.

    After considering public comments, the Agency is not requiring a
state or authorized Tribe to define additional contents of a request
for certification in regulation. The Agency agrees that the required
contents of a request do not need to be in a regulation to be
transparent, publicly available, and provide project proponents with
adequate notice. The critical inquiry for state and Tribal certifying
authorities to consider is whether the method of identifying the
required contents in a request for certification is clear, objective,
and authoritative such that notions of fairness and notice are served.
The Agency notes that some of the state and Tribal processes are
already well known to the regulated community, have been used for 50
years, and are not in regulation. As a practical matter, states and
authorized Tribes use different approaches to define the required
contents of a request for certification, including statute,
regulations, policy documents, application forms, and guidance. The
burden of putting the contents of a request in regulation can be time
consuming (e.g., may require legislative approval before going into
effect), and may interfere with certifying authorities' ability to
describe the information they expect in a request for certification.
    The final rule approach also addresses project proponent concerns
about certifying authorities that, in the past, may have unexpectedly
required additional information from the project proponent to satisfy
the request for certification requirement before starting the clock on
the ``reasonable period of time.'' Under the approach EPA is
finalizing, the reasonable period of time starts on the date that a
``request for certification'' was received in accordance with the
certifying authority's applicable submission procedures. As discussed
above, the request for certification is defined to mean a request that
contains the contents required by EPA's final regulations and any
additional state or Tribal requirements identified prior to when the
request for certification was made. This approach creates a bright-line
for project proponents seeking to avoid unexpected shifts and identify
the necessary contents for a request for certification with certainty.
    In 1971, the Agency opted to not define what information, if any,
was sufficient to start the review process for all certifying
authorities and instead opted to define the information only for EPA
when it acts as the certifying authority. 40 CFR 121.22 (2019). As a
result, over the last approximately 50 years, many states and
authorized Tribes established their own requirements for what
constitutes a request for certification, also called a ``certification
request,'' typically defining it as a so-called ``complete
application.'' See, e.g., Cal. Code Regs. Tit. 23, sec. 3835; La.
Admin. Code tit. 33, sec. IX-1507; Ohio Admin. Code 3745-32-03. Prior
Agency guidance acknowledged this practice. See 1989 Guidance, at 31
(April 1989) (``Thus, after taking the federal agencies' regulations
into account, the State's 401 certification regulations should link the
timing for review to what is considered receipt of a complete
application.''); see also 2010 Handbook at 15-16 (rescinded in 2019,
see supra) (``States and tribes often establish their own specific
requirements for a complete application for water quality
certification. . . . The advantage of a clear description of components
of a complete [section] 401 certification application is that
applicants know what they must be prepared to provide, and applicant
and agencies alike understand when the review timeframe has begun.'').
Some certifying authorities rely on a ``complete application'' to start
the certification review process. In the Agency's view, a state
requirement for submittal of a complete application, when the contents
of such complete application are clearly identified ahead of time, is
not inherently subjective and can be defined by the information
identified by regulation or on a form. Establishing such a list of
required elements in advance is consistent with the rationale of NYSDEC
that criticized the state for relying on its ``subjective''
determination following submission regarding whether the request was
``complete.''
    The use of a ``completeness'' standard for applications or similar
documents is not a novel concept in CWA implementing regulations.\45\
Both EPA and the Corps have developed regulations setting out
requirements for ``completeness'' or ``complete applications'' to
initiate the permitting process. See 40 CFR 122.21(e) (describing
``completeness'' for NPDES applications); 33 CFR 325.1(d)(10)
(describing when an application is deemed ``complete'' for section 404
permits). Neither CWA section 402 nor section 404 uses the word
``complete'' to modify the term ``application'' in the statute, yet the
agencies have reasonably interpreted the term ``application'' in those
contexts to allow for a ``completeness'' concept that provides a clear
and consistent framework for stakeholders involved in the section 402
and 404 permitting processes. The Agency is unaware of significant
issues with the use of ``complete applications'' in either the section
402 or section 404 permitting processes or a concern that it has led to
a ``subjective standard.''
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    \45\ The use of ``complete'' applications is also applied in
other Federal environmental realms (e.g., the Safe Drinking Water
Act, the Clean Air Act). See, e.g., 40 CFR 144.31, 40 CFR 51.103,
appendix V to part 51.
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    While acknowledging the ruling in NYSDEC, the Agency also notes
that the Fourth Circuit ruled in support of the reasonable period of
time beginning when the certifying authority deems the application
complete. AES Sparrows Point LNG v. Wilson, 589 F.3d 721 (4th Cir.
2009). The final rule approach is consistent with this decision in that
regard, and not inconsistent with NYSDEC, as explained above.
    States' and authorized Tribes' ability to define additional
contents of a request for certification should ultimately reduce the
need for certifying authorities to request additional information from
project proponents after the request for certification has been
submitted. The limitations referenced above do not preclude certifying
authorities from asking for more information after they receive a
request for certification and the reasonable period of time begins, if
the certifying authority determines additional information would help
inform its decision-making on the request for certification. However,
these requests for additional information by a certifying authority
should be targeted to information relevant to the potential water
quality-related impacts from the activity. EPA also encourages
certifying authorities and project proponents to discuss the necessary
information that must be part of the request for certification during
the pre-filing meeting process.
ii. Requirements When EPA Is the Certifying Authority
    The Agency is finalizing a list of additional contents required for
requests for certification submitted to EPA when EPA acts as a
certifying authority.\46\ This list also applies to requests for
certification submitted to states and authorized Tribes that have not
identified additional contents of a request for certification. As
discussed below, these components contain some similarities to the 1971
Rule and 2020

Rule, with revisions to provide further clarification and efficiency
for project proponents, EPA when it acts as a certifying authority, and
when a state or authorized Tribe has not established its own definition
of ``request for certification.''
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    \46\ EPA acts as the certifying authority on behalf of states or
Tribes that do not have ``authority to give such certification.'' 33
U.S.C. 1341(a)(1). EPA acts as the certifying authority in two
scenarios: (1) on behalf of Tribes without ``treatment in a similar
manner as a state'' (TAS) and (2) on lands of exclusive Federal
jurisdiction.
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    EPA proposed a list of contents that shall be included in requests
for certification to the Regional Administrator shall include the
following, if not already included in the draft license or permit:
    1. The name and address of the project proponent;
    2. The project proponent's contact information;
    3. Identification of the applicable Federal license or permit,
including Federal license or permit type, project name, project
identification number, and a point of contact for the Federal agency;
    4. Where available, a list of all other Federal, interstate,
tribal, state, territorial, or local agency authorizations required for
the proposed activity and current status of each authorization; and
    5. Documentation that a pre-filing meeting request was submitted to
the certifying authority in accordance with applicable submission
requirements, unless a pre-filing meeting request has been waived. 40
CFR 121.5(c)
    Proposed Sec.  121.5(b) also provided that ``[w]here a project
proponent is seeking certification from a certifying authority other
than the Regional Administrator, and that certifying authority has not
identified in regulation additional contents of a request for
certification, the project proponent shall submit a request for
certification as defined in [Sec.  121.5(c)].''
    In this final rule at Sec.  121.5(b), EPA is finalizing a slightly
different list of additional contents in a request for certification
than what was proposed that combines components proposed and offered as
alternatives in the preamble to the proposed rule, due to the feedback
received in the public comments and the removal of a draft Federal
license or permit from the minimum contents for all requests for
certification. The final list of additional contents for a request for
certification when EPA is the certifying authority (or when states or
Tribes fail to define such additional contents) includes seven
components derived from the proposed approach and the alternative
approach:
    1. A description of the proposed activity, including the purpose of
the proposed activity and the type(s) of discharge(s) that may result
from the proposed activity;
    2. The specific location of any discharge(s) that may result from
the proposed activity;
    3. A map or diagram of the proposed activity site, including the
proposed activity boundaries in relation to local streets, roads, and
highways;
    4. A description of current activity site conditions, including but
not limited to relevant site data, photographs that represent current
site conditions, or other relevant documentation;
    5. The date(s) on which the proposed activity is planned to begin
and end and, if known, the approximate date(s) when any discharge(s)
may commence;
    6. A list of all other Federal, interstate, Tribal, state,
territorial, or local agency authorizations required for the proposed
activity and the current status of each authorization; and
    7. Documentation that a pre-filing meeting request was submitted to
the certifying authority in accordance with applicable submission
procedures, unless the pre-filing meeting request requirement was
waived.
    A few commenters agreed that EPA's additional contents for a
request for certification should be the default contents for a request
to a certifying authority that does not define additional contents.
However, some commenters expressed concern that EPA's default list of
additional certification request components was inadequate and did not
capture all the items a state or authorized Tribe may need for its
analysis. One commenter asserted that EPA's default additional
components create a presumption that EPA's list is sufficient for a
request for certification, and recommended that EPA make clear that
states and authorized Tribes have the authority to specify the contents
of a request for certification where they are the certifying authority.
    To provide transparency and predictability, the final rule requires
project proponents seeking certification from a state or authorized
Tribe that has not identified additional contents of a request for
certification to submit the additional contents identified at Sec.
121.5(b). See Sec.  121.5(d). However, this final rule does not create
the presumption that the contents identified at Sec.  121.5(b) will be
sufficient for all scenarios and all certifying authorities. Rather,
the Agency is providing a list of minimum contents as a baseline and
allowing state and Tribal certifying authorities to define additional
contents for each request for certification. As discussed above, the
additional contents in Sec.  121.5(b) would not apply where a
certifying authority has established its own list of requirements for a
request for certification. However, EPA recommends that certifying
authorities wishing to establish their own lists of additional contents
of requests for certification consider the requirements outlined by the
Agency in Sec.  121.5(b), as these contents reflect the additional
information deemed necessary by EPA for the Agency to initiate its
analysis of a certification request on a Federal license or permit
application.
    EPA requested comment on an alternative list of additional contents
to accompany a request for certification on a Federal license or permit
application. Under this alternative approach, the project proponent
would be required to submit ``proposed activity information'' with six
components, including the following:
    1. A description of the proposed activity, including the purpose of
the proposed activity and the type(s) of discharge(s) that may result
from the proposed activity;
    2. The specific location of any discharge(s) that may result from
the proposed activity;
    3. A map and/or diagram of the proposed activity site, including
the proposed activity boundaries in relation to local streets, roads,
highways;
    4. A description of current activity site conditions, including but
not limited to relevant site data, photographs that represent current
site conditions, or other relevant documentation;
    5. The date(s) on which the proposed activity is planned to begin
and end and, if known, the approximate date(s) on which any
discharge(s) will take place; and
    6. Any additional information to inform whether any discharge from
the proposed activity will comply with applicable water quality
requirements. 87 FR 35336.
    A few commenters did not find the additional requirements for the
alternative approach to be necessary, because the information would
already be included in the application or under current state
requirements. On the other hand, some commenters provided suggestions
for the default additional contents. A few commenters recommended
supplementing the default additional request components with the six
additional components listed in the proposal preamble as an
alternative, and as suggested by one of these commenters, revising as
appropriate to address any duplication.
    EPA does not agree with commenters asserting that additional
components are unreasonable. While some commenters said doing so was
unnecessary, the relevant inquiry is whether EPA's

inclusion of additional components is ``reasonable,'' not whether it is
``necessary.'' EPA anticipates that the list of additional required
contents at Sec.  121.5(b) is appropriate for EPA as a certifying
authority and as a default list for those other certifying authorities
that have not identified additional required contents for requests for
certification. EPA also does not intend for this list to be
duplicative. Accordingly, EPA has added text at final rule Sec.
121.5(b) to clarify that a project proponent only needs to provide the
additional components where such components are not already included in
the minimal contents of a request for certification defined at Sec.
121.5(a). For example, if a map or diagram of the proposed activity
site is part of the Federal license or permit application, the project
proponent would not be required to submit a second copy of the map or
diagram.
    EPA agrees with commenters who suggested that the Agency combine
the proposed and alternative lists of additional contents. As discussed
below, the Agency has revised the list of additional contents to reduce
duplication among the minimal contents of a request for certification.
Additionally, the Agency recognizes that some of the components listed
at Sec.  121.5(b) may not be applicable if the project proponent is a
Federal agency seeking certification on the issuance of a general
Federal license or permit. Accordingly, the Agency has added regulatory
text at Sec.  121.5(b) to clarify that only the applicable additional
components need to be included in a request for certification to EPA.
    First, based on commenter recommendations, EPA is not finalizing
the components of the proposed list that are expected to be captured by
the requirements in Sec.  121.5(a), such as the name and address of the
project proponent, the project proponent's contact information, and
identification of the applicable Federal license or permit, including
the Federal license or permit type, project name, project
identification number, and a point of contact for the Federal agency.
Although this type of background information was included in the 1971
Rule and the 2020 Rule, this information is unnecessary and redundant
to both the Federal license or permit application and draft Federal
license or permit.
    Second, similar to the 2020 Rule, the Agency is finalizing the
requirement that the project proponent provide a list of other
authorizations that are required for the proposed activity and the
current status of such authorizations. This requirement will allow the
Agency to assess how water quality impacts may be addressed through
other Federal, state, Tribal, or local authorizations and potentially
reduce redundancies or inconsistencies between the certified Federal
license or permit and other authorizations. When the project proponent
is a Federal agency seeking certification, the Agency does not expect
the Federal agency to be able to produce such a list. Typically, when a
Federal agency seeks certification, it is seeking certification on
general Federal licenses or permits that would be used by project
applicants in the future. Therefore, at the time of the request for
certification, the Federal agency is likely unable to provide any
information on which authorizations, if any, are required for such a
future project.
    Third, like the 2020 Rule, the Agency is finalizing a requirement
that the project proponent submit documentation that it requested a
pre-filing meeting, unless the pre-filing meeting request has been
waived. The documentation should be in writing, such as a copy of the
email requesting the pre-filing meeting. As discussed in section IV.B
in this preamble, a certifying authority may waive the requirement for
a pre-filing meeting request. In that event, the project proponent
would not need to produce documentation of a pre-filing meeting
request.
    Fourth, the Agency is adding five components that were offered as
alternatives to the final rule text to provide EPA with information
about the proposed activity, including a description of the proposed
activity, the location of any discharge from the proposed activity, a
map or diagram of the proposed activity site, a description of current
activity site conditions, and the date(s) on which the proposed
activity will begin and end. These components are similar to those in
the 2020 Rule, see Sec.  121.5(b)(4) (2020), and the 1971 Rule, see
Sec.  122.22(b), (d) (2019). These components are necessary to initiate
EPA's analysis of a request for certification on a Federal license or
permit application.
    The Agency is not including the sixth alternative component offered
at proposal, which would have required a project proponent to submit
any additional information to inform whether any discharge from the
proposed activity will comply with applicable water quality
requirements. EPA finds that such a component would be too vague and
would not provide project proponents with a clear, predictable set of a
requirements for a request for certification. However, if EPA later
determines additional information would be helpful to inform its
decision-making on a request for certification, this final rule does
not preclude EPA from asking for additional information after a
certification request is submitted. But EPA cannot require additional
components, aside from contents listed at Sec.  121.5(a) and (b), in a
request for certification.
    The Agency is also finalizing the removal of the contents of the
2020 Rule at Sec.  121.5(b)(5), (8), and (9); the 1971 Rule also
contained similar contents to Sec.  121.5(b)(5) of the 2020 Rule. See
40 CFR 121.22(c), (e) (2019). Section 121.5(b)(5) of the 2020 Rule,
which required the project proponent to ``[i]nclude a description of
any methods and means proposed to monitor the discharge and the
equipment or measures planned to treat, control, or manage the
discharge,'' is unnecessary since the final rule requires a project
proponent to provide the Federal license or permit application or draft
Federal license or permit, as appropriate, and any readily available
water quality-related materials that informed the development of the
application or draft Federal license or permit in its request. The
Agency also finds it unnecessary to retain the requirements at Sec.
121.5(b)(8) and (9) of the 2020 Rule. In 2020, EPA required the project
proponent to include an attestation statement that the project
proponent ``certifies that all information contained herein is true,
accurate, and complete to the best of my knowledge and belief'' at
Sec.  121.5(b)(8) ``to create additional accountability on the part of
the project proponent to ensure that information submitted in a
certification request accurately reflects the proposed project.'' 85 FR
42245. EPA is unaware of any issues or concerns that project proponents
will not provide accurate information in the request for certification
without such attestation. Furthermore, the final contents for a request
for certification include either the license or permit application or a
copy of the draft Federal license or permit, which presumably
incorporates accurate information about the proposed project.
Additionally, Sec.  121.5(b)(9) of the 2020 Rule, which required the
project proponent to include a statement that it ``hereby requests that
the certifying authority review and take action on this CWA 401
certification request within the applicable reasonable period of
time,'' is unnecessary because a project proponent is required to
submit a request for certification as defined in this final rule.
Submitting a request for certification as defined in this final rule
should be a clear

indication to the certifying authority that the project proponent is
seeking certification.
    A few commenters provided detailed, lengthy lists of additional
contents, beside the seven that EPA is finalizing, that could be
required by certifying authorities, including but not limited to
various plans, photographs, field surveys, construction methods, and
maps. Another commenter asserted that a request should include the
requirements for a complete application that are at least as stringent
as Federal agencies making similar determinations, such as the Corps'
requirements for complete CWA section 404 permit applications.
    EPA appreciates commenter suggestions and while EPA is not
including additional contents in Sec.  121.5(b), aside from those
discussed above, the Agency emphasizes that certifying authorities are
free to define additional contents for their requests for
certification. As discussed in the prior subsection, EPA has adjusted
the language in the final rule to increase flexibility for certifying
authorities to define the additional contents of a request for
certification in regulation or another appropriate manner, such as an
official form used for requests for certification. Such additional
contents should be communicated clearly and transparently for project
proponents to be aware of before submitting a request for
certification.
c. Defining ``Receipt'' of a Request for Certification
    The Agency is clarifying at Sec.  121.6(a) that ``the reasonable
period of time begins on the date that the certifying authority
receives a request for certification, as defined in Sec.  121.5, in
accordance with the certifying authority's applicable submission
procedures.'' In proposed Sec.  121.6(a), EPA stated that ``the
reasonable period of time shall begin upon receipt of a request for
certification.'' The Agency proposed to define ``receipt'' at Sec.
121.1(k) to mean ``the date that a request for certification, as
defined by the certifying authority, is documented as received by a
certifying authority in accordance with the certifying authority's
applicable submission procedures.'' The final rule merely simplifies
the proposed rule's approach to when the reasonable period of time
begins by placing the definition of receipt in Sec.  121.6(a).
    The statute provides that the reasonable period of time begins
``after receipt of such request.'' 33 U.S.C. 1341(a)(1). The statute
does not define the term ``receipt of such request,'' nor does it
define how a request for certification must be received by a certifying
authority. The 1971 Rule did not address or define the term
``receipt,'' however, the Agency opted to define the term in the 2020
Rule. 40 CFR 121.1(m) (2020). The 2020 Rule defined the term
``receipt'' as ``the date that a certification request is documented as
received by a certifying authority in accordance with applicable
submission procedures.'' Id. In implementation of the 2020 Rule, there
was some confusion regarding whether it was the Federal agency's or
certifying authority's responsibility to determine that a certification
request, as defined by the 2020 Rule, was received.
    Consistent with the statutory text, the reasonable period of time
begins on the date that the certifying authority receives a request for
certification, as defined at Sec.  121.5, and is submitted in
accordance with the certifying authority's applicable submission
procedures. 40 CFR 121.6(a). As discussed in more detail below, the
certifying authority must send written notification to the project
proponent and Federal agency of the date the request for certification
was received.
    Some commenters asserted that, due to the wide variety of project
types, the regulations should not dictate when the reasonable period of
time begins. These commenters added that states and authorized Tribes
should determine when the reasonable period of time starts, and when
they have sufficient information to conduct a proper review, provided
it does not exceed the statutory one-year limit. As described above,
EPA provides in the final rule at Sec.  121.6(a) that ``the reasonable
period of time begins on the date that the certifying authority
receives a request for certification, as defined in Sec.  121.5, in
accordance with the certifying authority's applicable submission
procedures.'' This approach provides certifying authorities with a role
in determining when the clock starts (i.e., by defining additional
contents of a request for certification and applicable submission
procedures), while also providing transparency and consistency around
the process for requesting certification and starting the reasonable
period of time for project proponents.
    Some commenters stated that the proposed definition of ``receipt''
would limit predictability and could allow certifying authorities to
delay the certification process by saying they have not received the
request for certification in full and in accordance with its submission
procedures. A few commenters asserted that the Second Circuit held that
allowing states to determine when requests are ``complete'' could
create a ``subjective standard'' in violation of the bright line
requirements of section 401. NYSDEC, 884 F.3d at 455-56. While not
retaining a definition of ``receipt'' in the final rule, EPA maintains
that consistent with section 401(a)(1), the reasonable period of time
clock starts when the certifying authority has received a request for
certification, as defined in Sec.  121.5 of the final rule, in
accordance with the certifying authority's applicable submission
procedures. See 40 CFR 121.6(a). EPA disagrees with commenter
assertions that having the certifying authority determine when it has
received a request for certification will lead to certifying
authorities subjectively determining when a request for certification
has or has not been submitted. Rather, this final rule expressly
rejects such practices by limiting requests for certification from
state and Tribal certifying authorities with additional required
components to those that are identified prior to when the request for
certification is made. See 40 CFR 121.5(c). This does not mean a
certifying authority could not ask for additional information after a
request for certification is made; rather, a certifying authority
cannot alter the required contents of the request for certification
after it is received. Similarly, the Agency disagrees that the concept
of ``completeness'' is inherently subjective. As discussed above,
having the certifying authority establish a list of additional required
contents for a request for certification before receiving a request for
certification, and therefore determine when the request has been
received, is not at odds with the decision from the Second Circuit. See
discussion supra.
    The project proponent must submit the request for certification in
accordance with the certifying authority's applicable submission
procedures. Applicable submission procedures describe the manner in
which a certifying authority will accept a certification request, e.g.,
through certified mail or electronically. The Agency understands that
certifying authorities may have different procedures for receiving
certification requests (e.g., receiving certification in different
formats or requiring the payment of fees), and as such is not limiting
or defining a set of standard applicable submission procedures. The
certifying authority may provide these applicable submission procedures
in regulations or another appropriate manner, such as an official form
used for requests for certification. In whichever way the certifying
authorities

provide their procedures, EPA encourages certifying authorities to
communicate them transparently and publicly. EPA recommends that the
certifying authority and project proponent communicate with each other
(e.g., during any pre-filing meeting engagement) to discuss submission
procedures and contents of the request for certification.
    As mentioned above, once a certifying authority receives a request
for certification, the certifying authority must send written
confirmation to the project proponent and the Federal agency of the
date that the request for certification was received. The Agency
proposed similar language at Sec.  121.5(d). However, the Agency has
moved this provision to Sec.  121.6(a) to better clarify that the
reasonable period of time does not start with the written confirmation
from the certifying authority. Rather, consistent with section
401(a)(1), it begins on the date that the project proponent submitted
the request for certification. EPA recognizes that the final rule no
longer includes a strict period for negotiation on the length of the
reasonable period of time between the certifying authority and the
Federal agency at the start of the reasonable period of time, which
means that the certifying authority may not promptly notify the project
proponent and the Federal agency that the request for certification was
received. Accordingly, the Agency is removing the regulatory text
located at Sec.  121.6(b) in the 2020 Rule, which required the Federal
agency to communicate the date of receipt of the request for
certification, the reasonable period of time, and the date waiver will
occur. Under this final rule, the certifying authority is responsible
for confirming the date of receipt of a request for certification with
the project proponent and Federal agency. However, the final rule
approach will not lead to the same level of confusion as the 2020 Rule
requirement for the project proponent to submit the request for
certification concurrently to the certifying authority and the Federal
agency. Under the 2020 Rule, although the certifying authority was
responsible for determining whether a request was received, a project
proponent could submit a deficient certification request to the Federal
agency and spur the Federal agency to communicate an inaccurate date of
receipt for the request. The final rule approach avoids this potential
miscommunication by relying on the certifying authority, rather than
the project proponent, to communicate the date of receipt of a request
for certification with the project proponent and Federal agency.
3. Implementation
    The Agency recommends that project proponents, certifying
authorities, and Federal agencies work together to determine the most
efficient and effective means of communication before the certification
process begins to ensure a common understanding of the contents of a
request for certification. The final rule's pre-filing meeting process
provides an opportunity for such early engagement to identify and
discuss the appropriate request for certification requirements. Because
the final rule allows certifying authorities to require additional
contents in a request for certification as long as they are identified
prior to when the request for certification is made, certifying
authorities should make their additional contents for request for
certification and applicable submission procedures readily available
and transparent to the regulated public. EPA intends to support
certifying authority efforts to make the requests for certification
requirements transparent. For example, EPA could provide links to other
certifying authorities' websites on EPA's website or maintain an up-to-
date list of points of contact to connect project proponents with the
appropriate certifying authority.
    Another way a certifying authority may further support the
efficient review of requests for certification would be for the
certifying authority to make available draft certification conditions
that project proponents can consider while developing their project
design plans and request for certification materials. Project
proponents can save time and money by preparing for and mitigating the
impacts from an activity that will not comply with applicable water
quality requirements. EPA acknowledges that not all certifying
authorities will be able to provide conditions that anticipate
potential water quality impacts from various types of activities that
will not comply with their applicable water quality requirements;
however, some certifying authorities have made example certification
conditions for certain project types or waterbodies available prior to
receipt of requests for certification for those project types or
geographic areas.
    The Agency wishes to clarify several implementation questions or
issues related to the request for certification that have previously
arisen or were revealed through public comment on this rulemaking.
First, with regards to project proponents seeking project-specific
certification to obtain authorization under a Corps general permit,
project proponents must submit the minimum contents defined at Sec.
121.5(a)(1). For example, if a state or authorized Tribe denied
certification on the issuance of a Corps' general permit, then to
obtain authorization under that general permit, the project proponent
would need to obtain a project-specific certification or waiver from
the state or authorized Tribe. In those cases, the ``application'' part
of the request for certification may take the form of a pre-
construction notification (PCN), along with any readily available water
quality-related materials that informed the development of the
application (e.g., the general permit). Second, regarding individual
projects that do not involve an ``application'' or a ``license or
permit'' but still require certification, like Corps' civil works
projects, the Agency expects the project proponent to provide documents
in lieu of the application that are similar in nature, such as a
``project study'' when requesting certification. In both instances, the
Agency expects the final rule's approach should be familiar to
stakeholders who have previously sought certification on such Federal
licenses or permits for 50 years under the 1971 Rule.
    A few commenters also raised various implementation-related
questions with the proposed inclusion of the draft Federal license or
permit in all requests for certification. Several commenters expressed
concern and confusion over the term ``draft permit or license'' in the
proposed rule and requested that EPA define the term to clarify the
appropriate level of detail (e.g., license or permit is ready for
issuance, final draft license or permit). Commenters also questioned
what would occur if the project changed after receiving a draft Federal
license or permit, as well as whether the project proponent was best
suited to provide the certifying authority with a copy of the draft
Federal license or permit.
    As discussed above, in this final rule, a draft Federal license or
permit is only required for requests for certification on the issuance
of general Federal licenses or permits. Currently, the Agency is only
aware of general permits for two Federal agencies: the Corps (section
404 program) and EPA (section 402 program). The Agency does not find it
necessary to define ``draft license or permit'' for purposes of this
rulemaking, in part because stakeholders should be familiar with the
process of requesting certification on these Federal licenses or
permits and Federal agencies will be acting as the ``project
proponent'' in

these instances. This final rule does not require a Federal agency
seeking certification on the issuance of a general Federal license or
permit to seek certification immediately upon publication of the draft
Federal license or permit. Rather, the Federal agency must request
certification after publication of the draft Federal license or permit.
For example, the Corps is required to request certification on the
nationwide permits (NWPs) when they are renewed every five years.
First, the Corps proposes the draft NWPs and takes comment on the
proposals, and later finalizes the NWPs after considering public
comment. Under this final rule, the Corps may request certification on
the NWPs after it receives and considers public comment on the
proposals but before finalizing the NWPs. In that scenario, the Corps
would provide the non-finalized NWP to the certifying authority as the
draft permit in its request for certification to satisfy the
requirements. EPA encourages Federal agencies and certifying
authorities to work together to determine the point in time at which a
request would be most appropriate to allow for an informed and
efficient certifying authority review. Such coordination could also
avoid questions or concerns arising over significant changes to the
draft Federal license or permit post-request. However, there may always
be a degree of uncertainty or possibility for project changes when it
comes to certifying any project because a Federal agency must obtain a
certification prior to issuing a Federal license or permit.\47\ EPA
encourages certifying authorities to engage early and often with
project proponents and Federal agencies and develop certification
conditions that allow for ``adaptive management'' in the event a
project changes. See section IV.F in this preamble for further
discussion on adaptive management conditions.
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    \47\ A final Federal license or permit may not be issued until
after a certification or waiver is obtained by the project
proponent. 33 U.S.C 1341(a)(1) (``No license or permit shall be
granted until certification required by this section has been
obtained or has been waived as provided in the preceding
sentence.'') Therefore, requiring a copy of the final Federal
license or permit to initiate the certification process would be
inconsistent with the plain language of section 401.
---------------------------------------------------------------------------

    Neither the CWA nor this final rule require project proponents to
submit the request for certification for an individual license or
permit at the time a Federal license or permit application is
submitted. Accordingly, project proponents would not be precluded from
providing a copy of the draft Federal license or permit, in addition to
the Federal license or permit application, when requesting
certification for individual Federal licenses or permits. For example,
EPA can continue its longstanding practice of submitting a copy of the
draft individual CWA section 402 NPDES permit to the certifying
authority for its review. However, project proponents would not be
required to wait to request certification for an individual Federal
license or permit until a copy of the draft Federal license or permit
is obtained, unless the certifying authority has defined in its
additional contents for a request for certification that the request
must include a copy of the draft Federal license or permit.
    A few commenters recommended allowing certifying authorities to
issue certification decisions in the absence of a request for
certification. For purposes of section 401, EPA does not agree that a
CWA section 401 certification can be issued in the absence of a project
proponent requesting certification for a Federal license or permit that
may result in any discharge into waters of the United States. See
section IV.A in this preamble for further discussion on when
certification is required.\48\ Similarly, if the certifying authority
never received a request for certification or if the request for
certification or Federal license or permit application was withdrawn,
then the certifying authority is no longer responsible for acting on
the request for certification because the pre-requisite ``request'' is
absent. See section IV.D.2.c in this preamble regarding the Agency's
position on the legality of the practice of withdrawing and
resubmitting requests for certification.
---------------------------------------------------------------------------

    \48\ EPA is aware that in some instances, certifying authorities
use section 401 certifications as state permits under state law;
however, this final rule does not address such practices.
---------------------------------------------------------------------------

    As mentioned above, once a certifying authority receives a request
for certification, the certifying authority must send written
confirmation to the project proponent and the Federal agency of the
date that the request for certification was received. 40 CFR 121.6(a).
If a project proponent submits a request for certification that does
not meet the requirements of Sec.  121.5 of this final rule, the Agency
recommends that the certifying authority promptly notify the project
proponent that it did not submit a request for certification in
accordance with Sec.  121.5 of this final rule. However, as discussed
previously, certifying authorities and project proponents can avoid
such outcomes by leveraging early engagement opportunities (i.e., pre-
filing meetings) to ensure a common understanding of the required
contents of a request for certification.

D. Reasonable Period of Time

1. What is the Agency finalizing?
    Under section 401, when a certifying authority receives a request
for certification, the certifying authority must act on that request
within a ``reasonable period of time (which shall not exceed one
year).'' 33 U.S.C. 1341(a)(1). At Sec.  121.6(a), EPA clarifies that
the reasonable period of time begins on the date that a request for
certification, as discussed in the previous section, is received by the
certifying authority in accordance with its applicable submission
procedures. Section 121.6(b) provides Federal agencies and certifying
authorities with the ability to jointly set the reasonable period of
time, provided it does not exceed one year from the date that the
request for certification was received. The final rule clarifies that
the joint determination of the reasonable period of time may happen on
a case-by-case basis or categorically. See 40 CFR 121.6(b).
    Under this final rule, if the Federal agency and certifying
authority do not agree upon a reasonable period of time, the default
reasonable period of time will be six months from the date that the
request for certification was received. See 40 CFR 121.6(c). This
default approach obviates the need for a dispute resolution process in
the event the certifying authority and Federal agency are not able to
agree on the reasonable period of time. The Agency proposed a 60-day
default reasonable period of time. However, for several reasons
discussed below, the Agency is not finalizing the proposed 60-day
default reasonable period of time.
    The pre-filing meeting could be a venue for the Federal agency and
certifying authority to discuss the length of the reasonable period of
time, particularly because the project proponent participates in that
meeting and will, therefore, be informed of any reasonable period of
time-related discussions and decisions. EPA also recognizes that the
Federal agency and the certifying authority may benefit from discussing
the length of the reasonable period of time before the pre-filing
meeting to then use the pre-filing meeting to inform the project
proponent of the agreed-upon length. Although the Agency is not listing
factors that Federal agencies and certifying authorities must consider
when establishing the reasonable period of time that the certifying
authority has to act on the

request for certification, Federal agencies and certifying authorities
might consider factors such as project type, complexity, location, and
scale; the certifying authority's administrative procedures; other
relevant timing considerations (e.g., Federal license or permit
deadlines; associated National Environmental Policy Act deadlines; and/
or anticipated timeframe for neighboring jurisdictions process); and/or
the potential for the licensed or permitted activity to affect water
quality. Federal agencies and certifying authorities might also elect
to establish joint reasonable period of time procedures and/or
agreements through a memorandum of agreement (MOA) or similar. Such
MOAs could apply to all federally licensed or permitted activities or
only to specific types of activities (e.g., activities covered by
general permits). The requests for certification that fall under these
MOAs would not require individual written agreements confirming the
reasonable period of time between the Federal agency and certifying
authority for each Federal license or permit. Alternatively, Federal
agencies and certifying authorities might prefer to agree and establish
the reasonable period of time in writing on a case-by-case basis.
    EPA is finalizing as proposed that after the reasonable period of
time is set, the Federal agency and certifying authority may agree to
extend the reasonable period of time, provided that it does not exceed
one year from the date that the request for certification was received.
See 40 CFR 121.6(e). Section 121.6(d) also provides automatic
extensions for certain situations, as EPA recognizes there are
circumstances under which the Federal agency must extend the reasonable
period of time without the certifying authority needing to negotiate an
agreement. Such circumstances are where a certification decision cannot
be rendered within the negotiated or default reasonable period of time
due to force majeure events (including, but not limited to, government
closure or natural disasters) and when state or Tribal public notice
procedures necessitate a longer reasonable period of time.
    If a longer period of time to review the request for certification
is necessary due to either of these circumstances, upon written
notification to the Federal agency by the certifying authority prior to
the end of the reasonable period of time, the reasonable period of time
shall be extended by the amount of time necessitated by public notice
procedures or the force majeure event, as long as it does not cause the
reasonable period of time to exceed one year from the date that the
request for certification was received. In its notification, the
certifying authority must provide the Federal agency with a written
justification for the automatic extension. The justification must
describe the circumstances supporting the extension (i.e.,
accommodating the certifying authority's public notice procedures,
government closures, or natural disasters) and does not require Federal
agency approval before taking effect. The extended reasonable period of
time would take effect upon notification by the certifying authority to
the Federal agency.
    Aside from these automatic extensions, the Agency expects that
certifying authorities and Federal agencies will collaboratively agree
to discretionary extensions to the reasonable period of time where
appropriate. For example, the certifying authority and Federal agency
could develop, in a MOA or similar instrument, a process to identify
scenarios where changes to the reasonable period of time would be
appropriate. Such scenarios may include situations where relevant new
information becomes available during the reasonable period of time. EPA
notes that the final rule promotes early collaboration and pre-filing
meetings to allow the Federal agency, certifying authority, and the
project proponent to discuss project complexity, seasonal limitations,
and other factors that may influence the amount of time needed to
complete the certifying authority's analysis. These opportunities may
reduce the need to extend the jointly established or default reasonable
period of time.
    Consistent with the proposal, EPA is not taking a position on the
legality of withdrawing and resubmitting a request for certification.
While there may be situations where withdrawing and resubmitting a
request for certification is appropriate, drawing a bright regulatory
line on this issue is challenging, and the law in this area is dynamic.
See, e.g., Hoopa Valley Tribe v. FERC, 913 F.3d 1099, 1105 (D.C. Cir.
2019) (holding that repeated, coordinated withdrawal and resubmittal of
a certification request resulted in a waiver); N.C. Dep't of Envtl.
Quality (NCDEQ) v. FERC, 3 F.4th 655, 676 (4th Cir. 2021) (finding that
the record did not support FERC's determination that the state and
project proponent withdrew and resubmitted the certification request in
a coordinated fashion resulting in waiver). For these reasons, the
final rule does not take a position on this issue, instead allowing the
different state and Tribal certifying authorities, Federal agencies,
and/or possibly project proponents to make case-specific decisions
addressing the practice.
    The Agency is also finalizing deletions in the part 124 provisions
regarding the reasonable period of time for certification on EPA-issued
NPDES permits, formerly located at 40 CFR 124.53(c)(3), in favor of the
reasonable period of time provisions in the final rule at Sec.  121.6.
The approach to the reasonable period of time taken in Sec.  124.53(c)
was not fully consistent with the approach at Sec.  121.6. For
instance, the standard reasonable period of time was 60 days instead of
the default six months in Sec.  121.6(c). Further, unlike Sec.
121.6(b), Sec.  124.53(c)(3) did not include a provision allowing
certifying authority collaboration in setting the reasonable period of
time. And unlike Sec.  121.6(d), Sec.  124.53(c)(3) did not allow for
automatic extensions to accommodate a certifying authority's public
notice procedures or force majeure events (instead allowing extensions
beyond the default 60 days only if EPA finds ``unusual circumstances''
require a longer time). Consequently, EPA has deleted Sec.
124.53(c)(3). In addition, EPA has made conforming changes in Sec.
124.53(c) for consistency with the request for certification
requirements in Sec.  121.5.
2. Summary of Final Rule Rationale and Public Comment
    Section 401(a)(1) provides that a certifying authority waives its
ability to certify a Federal license or permit if it does not act on a
certification request within the reasonable period of time. 33 U.S.C.
1341(a)(1) (``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.''). Other than specifying its outer bound (one year), the
CWA does not define what length of time is ``reasonable.'' The 1971
Rule explained that a certifying authority would waive its opportunity
to certify if it did not act within ``a reasonable period of time'' and
provided that: (1) the Federal licensing or permitting agency
determines the length of the reasonable period of time, and (2) the
reasonable period of time ``shall generally be considered to be six
months, but in any event shall not exceed one year.'' See 40 CFR
121.16(b) (2019).
    The 2020 Rule provided that the Federal agency alone sets the
reasonable

period of time and defined a process for how it should be determined.
See 40 CFR 121.6 (2020). This process specified when a Federal agency
must communicate the reasonable period of time to the certifying
authority and identified factors that the Federal agency must consider
when setting the reasonable period of time. See id.; 85 FR 42259-60
(July 13, 2020). The 2020 Rule did not maintain the 1971 Rule's six-
month default and reiterated that the reasonable period of time could
not exceed one year from receipt of the certification request. 40 CFR
121.6 (2020). The 2020 Rule also defined the term ``reasonable period
of time'' as the length of time during which the certifying authority
may act on a request for certification. 40 CFR 121.1(l) (2020).
    Some Federal agencies promulgated regulations describing a
reasonable period of time for section 401 certification in relation to
those agencies' licenses or permits prior to the 2020 Rule. For
example, FERC has explicitly defined the reasonable period of time to
be one year. See 18 CFR 4.34(b)(5)(iii), 5.23(b)(2), 157.22(b).\49\ The
Corps has routinely implemented a 60-day reasonable period of time for
section 401 decisions commencing when the certifying authority receives
a section 401 certification request. See 33 CFR 325.2(b)(1)(ii). EPA
established a 60-day reasonable period of time for NPDES permits. See
40 CFR 124.53(c)(3).
---------------------------------------------------------------------------

    \49\ FERC proposed and finalized regulations to codify FERC's
practice of a one-year reasonable period of time on natural gas or
liquefied natural gas infrastructure projects after the 2020 Rule.
See 86 FR 16298 (March 29, 2021).
---------------------------------------------------------------------------

    In pre-proposal input on the rulemaking, project proponents
generally supported the reasonable period of time provisions in the
2020 Rule, whereas most states, Tribes, and non-governmental
organizations expressed concern with various aspects of it. Some
certifying authorities also pointed out that short reasonable periods
of time (e.g., 60 days) do not allow the state or authorized Tribe
sufficient time to fulfill certain state or Tribal law requirements,
such as public notice procedures, or allow them to obtain all the
information they need about a project to make an informed certification
decision. As a result, these certifying authorities asserted that for
complex projects, their only realistic options are to waive or deny
certification. EPA expressed similar concerns in its notice of intent
to revise the 2020 Rule. See 86 FR 29543 (June 2, 2021) (``Among other
issues, EPA is concerned that the rule does not allow state and tribal
authorities a sufficient role in setting the timeline for reviewing
certification requests . . . .'').
    The Agency proposed at Sec.  121.6(b) that the Federal agency and
certifying authority may jointly set the reasonable period of time on a
case-by-case or project type basis. Additionally, the proposal included
a default reasonable period of time of 60 days if the Federal agency
and certifying authority are not able to come to an agreement within 30
days of receipt of the request of certification at Sec.  121.6(c).
Proposed Sec.  121.6(c) and (d) also introduced extensions of the
reasonable period of time. It was proposed that the negotiated or
default reasonable period of time would automatically be extended to
accommodate public notice and comment processes or due to force majeure
events. The Federal agency and certifying authority could also agree to
extend the reasonable period of time for any reason, provided it did
not exceed the statutory one-year maximum. Lastly, in the proposal, the
Agency did not take a stance on the legality of the withdrawal and
resubmittal approach to restart the clock. 87 FR 35341-42 (June 9,
2022).
    Similar to the proposal, this final rulemaking not only affirms and
clarifies that--consistent with the statutory text--the reasonable
period of time may not exceed one year from the date the request for
certification is received, but it also finalizes the proposed approach
that the Federal agency and certifying authority may collaboratively
set the reasonable period of time on a project-by-project basis or
categorical project type basis (e.g., through development of procedures
and/or agreements), provided that it does not exceed one year. 40 CFR
121.6(b). Under this final rule, in a change from proposal, if the
Federal agency and certifying authority do not agree upon the
reasonable period of time in writing, the default reasonable period of
time would be six months from the date the request for certification is
received. 40 CFR 121.6(c). The final rule also allows for extensions
under certain circumstances. 40 CFR 121.6(d) and (e). Additionally, the
Agency is removing as unnecessary the definition for ``reasonable
period of time.'' See 40 CFR 121.1(l) (2020). Like that definition, the
final rule language in Sec.  121.6(b) itself provides that the
reasonable period of time is the time during which the certifying
authority must act on the request for certification. As a result, the
Agency finds it duplicative and unnecessary to include a separate
definition for the term ``reasonable period of time.''
a. Reasonable Period of Time Determination
i. Joint Setting of the Reasonable Period of Time
    The collaborative approach in this final rule (i.e., the Federal
agency and certifying authority may jointly set the reasonable period
of time with a default of six months if an agreement is not reached)
differs from the approach in both the 1971 Rule and the 2020 Rule where
the reasonable period of time was determined solely by the Federal
agency. See 40 CFR 121.16(b) (2019); 40 CFR 121.6(a) (2020). The
approach taken in the 1971 and 2020 Rules is not compelled by the
statutory text because CWA section 401(a)(1) is silent regarding who
may or must determine the reasonable period of time. Nor does the
statute imply that the Federal agency is the only entity that may
establish the reasonable period of time. As such, and as described
below, EPA finds that the best reading of the statute is to allow both
entities--the certifying authority and the Federal agency--to play a
role in establishing the reasonable period of time, and only include
the EPA-derived default of six months if they cannot come to an
agreement.
    As stated above, Federal agencies and certifying authorities may
collaboratively set the reasonable period of time in lieu of relying on
the default of six months. Under this approach, Federal agencies and
certifying authorities can offer each other their expertise relevant to
determining what timeframe is reasonable. Federal agencies are in the
best position to opine on timing in relation to their Federal licensing
or permitting process. Likewise, certifying authorities are in the best
position to determine how much time they need to evaluate potential
water quality impacts from federally licensed or permitted activities.
Certifying authorities are also best positioned to opine on the impacts
of state or Tribal procedures governing the timing of decisions with
respect to environmental review and public participation
requirements.\50\ Given that

EPA is deferring to the combined expertise of the Federal agencies and
certifying authorities for establishing the reasonable period of time,
this final rule does not retain the list of factors that a Federal
agency shall consider, under the 2020 Rule at Sec.  121.6(c), when
establishing the reasonable period of time. However, the Agency notes
that Federal agencies and certifying authorities might consider factors
such as project type, complexity, location, and scale; the certifying
authority's administrative procedures; other relevant timing
considerations (e.g., Federal license or permit deadlines; associated
National Environmental Policy Act deadlines; and/or anticipated
timeframe for neighboring jurisdictions process); and/or the potential
for the licensed or permitted activity to affect water quality.
Importantly, this final rule approach addresses state and Tribal
stakeholders' concerns that, under the 2020 Rule, certifying
authorities did not have enough influence in determining the length of
the reasonable period of time for a particular project.
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    \50\ Section 401(a)(1) requires a State or interstate agency to
establish procedures for public notice in the case of all
applications for certification by it and, to the extent it deems
appropriate, procedures for public hearings in connection with
specific applications. However, section 401(a)(1) does not set any
requirements or time limits on those public notice procedures or how
those procedures should be considered when setting the reasonable
period of time. Some certifying authorities have public notice
procedures that exceed the default reasonable period of time in
place for some Federal agencies (e.g., longer than the Corps' or
EPA's current default 60-day reasonable period of time for federally
issued CWA section 404 and 402 permits).
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    Many commenters expressed support for the collaborative approach of
the Federal agency and certifying authority setting the reasonable
period of time together. These commenters said that the joint
determination is consistent with cooperative federalism principles and
allows certifying authorities to provide input as the stakeholder that
conducts the review of the request for certification. Some commenters
also supported the setting of reasonable periods of time through MOAs
between the Federal agency and certifying authority to reduce the need
to determine the reasonable period of time on a case-by-case basis.
Commenters also suggested that the final rule should provide that
Federal and state agencies can agree to categorical time periods for
state review of certain types of permits, licenses, or projects,
pursuant to written agreements, which many did before the 2020 Rule. A
few commenters raised concerns about the time and resources that would
be needed to set a reasonable period of time for every review of a
request for certification and suggested that the final rule should
clarify that categorical agreements, in addition to case-by-case
agreements, are permissible.
    While the Agency agrees that the joint agreement approach promotes
cooperative federalism, EPA recognizes that coordinating the reasonable
period of time for reviewing requests for certification requires time
and resources for Federal agencies and certifying authorities.
Therefore, EPA encourages the creation of MOAs between Federal agencies
and certifying authorities as appropriate to help reduce the need for
determining the reasonable period of time on a case-by-case basis for
every request. In response to commenters' concerns about setting the
reasonable period of time each time a request for certification is
submitted, the final rule clarifies that Federal agencies and
certifying authorities may set categorical reasonable periods of time
through written agreements--for example, based on certain types of
Federal licenses or permits.
    Other commenters did not support setting the reasonable period of
time through a joint agreement between the Federal agency and
certifying authority. Some commenters said that EPA should remain
silent on who sets the reasonable period of time and that certifying
authorities should apply their own procedures. Some of these commenters
argued that the Federal agency should not be placed on the same footing
as the certifying authority in determining the reasonable period of
time because the certifying authority is the expert regarding their own
procedures, resources, and applicable state and Tribal laws.
Conversely, other commenters stated that the Federal agency should set
the reasonable period of time. One commenter stated that having a
Federal agency set the default serves to minimize the arbitrary delays
and bureaucratic gamesmanship, and thus EPA should continue to have
Federal agencies establish it, as they have done for decades. Several
commenters also expressed concern that the collaborative approach would
cause instability or inefficiencies for various reasons, including the
fact that there could be different reasonable periods of time if it is
set on a case-by-case basis or may differ by certifying authority.
    This joint agreement approach is the optimal interpretation of the
statute as it balances equities between the Federal agency and
certifying authority and utilizes the expertise of both stakeholders.
EPA disagrees that having the Federal agency alone set the default
serves to minimize arbitrary delays and bureaucratic gamesmanship
because that approach leaves the certifying authority out of the
decision-making process. And as stated above, EPA anticipates that
certifying authorities and Federal agencies will enter into categorical
agreements, which will minimize, if not eliminate, any potential
arbitrariness and bureaucratic gamesmanship. Additionally, written
agreements between Federal agencies and certifying authorities with
categorical reasonable periods of time would create efficiency while
still taking advantage of the knowledge of both parties for determining
the time necessary for reviewing each request for certification.
    One commenter asked that the joint agreement between the Federal
agency and the certifying authority be made in consultation with the
project proponent to allow for greater regulatory predictability for
project proponents and reduce any confusion among the parties. EPA
disagrees that any joint agreement between the Federal agency and the
certifying authority must be made in consultation with the project
proponent. Considering the high annual average number of requests for
certification,\51\ and therefore project proponents, it is unlikely it
would reduce confusion or allow for regulatory predictability. Rather,
instead of relying on categorical reasonable periods of time (e.g., by
project type, by Federal license or permit type), certifying
authorities and Federal agencies would have to consult with project
proponents on every request for certification. Consistent with the
cooperative federalism principles imbued in section 401, Federal
agencies and certifying authorities, not project proponents, have
primary roles in the certification process. That is, it is the Federal
agency whose license or permit is subject to section 401, and the
certifying authority is responsible for determining compliance with
applicable water quality requirements in accordance with section 401.
---------------------------------------------------------------------------

    \51\ EPA estimates that the average annual number of
certification requests is 1,947 requests per certifying authority.
See Supporting Statement for the Information Collection Request
(ICR).
---------------------------------------------------------------------------

    Additionally, requiring project proponent consultation in every
case would add unnecessary across-the-board procedure and coordination
into the certification process. However, EPA notes that certifying
authorities and Federal agencies are welcome to consult with project
proponents if they wish. For example, early engagement with the project
proponent during any pre-filing meeting discussions could serve to
gather input from project proponents that may help in setting the
reasonable period of time. Federal agencies and certifying authorities
may also choose to include input from project proponents when setting
categorical reasonable periods of time via MOAs.
    Some commenters who also expressed concern about the 30-day
negotiation period between the Federal agency and certifying authority
in the proposed

rule. Some of these commenters stated that certifying authorities would
need to expend their resources on both negotiating the reasonable
period of time and trying to review the request for certification due
to the clock already running during the negotiation period. In response
to commenters' concerns, EPA is not finalizing a timeframe for the
negotiation between Federal agencies and certifying authorities--
especially because the final rule makes it clear that the certifying
authority and Federal agency may coordinate categorical agreements
prior to the date that a request for certification was received.
However, the Agency encourages prompt negotiations between the Federal
agencies and certifying authorities for both individually determined
reasonable periods of time and categorical reasonable periods of time
to give clarity to project proponents as early as possible.
ii. Default Reasonable Period of Time
    Section 401(a)(1) provides that the reasonable period of time
``shall not exceed one year.'' 33 U.S.C. 1341(a)(1). The phrase ``shall
not exceed one year'' means that the reasonable period of time need not
be one full year and that a certifying authority should not necessarily
expect to be able to take a full year to act on a section 401 request
for certification. If Congress had meant for the reasonable period of
time to be one year in all cases, it would have simply written ``shall
be one year'' instead of ``shall not exceed one year.'' Under this
final rule, the certifying authority could be subject to a shorter than
one-year reasonable period of time to render its decision, provided
that the Federal agency and the certifying authority have agreed to a
shorter time, or as discussed below, when the parties do not reach
agreement and instead rely on the default reasonable period of time of
six months. This approach is consistent with case law. See Hoopa Valley
Tribe v. FERC, 913 F.3d 1099, 1104 (D.C. Cir. 2019) (``[W]hile a full
year is the absolute maximum, it does not preclude a finding of waiver
prior to the passage of a full year.'').
    As discussed in more detail below, many commenters opposed the
default 60-days for a variety of reasons and offered alternative
reasonable periods of time, such as 90 days, 120 days, 180 days, and
one year. For the final rule, EPA decided on six months as the default
reasonable period of time for several reasons. First, as stated above,
a default six-month reasonable period of time is consistent with the
Agency's longstanding 1971 regulations, which provided that the
reasonable period of time is generally considered to be six months. See
40 CFR 121.16(b) (2019). Thus, EPA's decision to choose six months as
the default is consistent with almost 50 years of program
implementation under EPA's 1971 regulations. Second, six months is
exactly half of one year, which is the statutory maximum for the
reasonable period of time. If the Federal agency and certifying
authority cannot reach an agreement, it seems reasonable to designate
half of the statutory maximum as the default reasonable period of time
as a middle ground to best balance equities between the Federal agency
and certifying authority. Third, six months should give the Federal
agency and certifying authority ample time to negotiate an alternate
reasonable period of time if they do not want to be subject to the six-
month default. At the same time, the six-month period serves as a
default should Federal agencies and certifying authorities fail to
agree on a different time period. Finally, EPA's proposed 60-day
default reasonable period of time was based largely on EPA's concurrent
proposal to require that requests for certification include a copy of
the draft Federal license or permit. Since the certifying authority
would have more information upfront (the draft Federal license or
permit instead of only the application), the Agency proposed that the
default reasonable period of time could be shorter. But since EPA has
decided not to finalize the proposed draft Federal license or permit
requirement (for individual Federal licenses and permits) and instead
only require that a request for certification include the Federal
license or permit application, certifying authorities will have less
information and may need more time to review requests for
certification, hence the six-month default reasonable period of time
(which only applies if the certifying authority and Federal agency do
not agree on an alternative).
    Although EPA proposed 60 days as the default reasonable period of
time, the Agency requested comment on whether and, if so, why the
default should be longer than 60 days (e.g., 120 days, six months, one
year). 87 FR 35339-40 (June 9, 2022). EPA noted that the default may
depend on when certification is requested during the Federal licensing
or permitting process, e.g., if EPA were to decide that a draft Federal
license or permit is not a required component of a certification
request, a longer default reasonable period of time may be appropriate.
Id. Based on comments received on the proposed rule, it seems that
many, if not most, commenters would support a six-month default
reasonable period of time, as described in this section.
    A few commenters supported the proposed 60-day default and pointed
out that certifying authorities often review many simpler projects in
30 days or less, and in some jurisdictions, applicable law already
requires certifying authorities to approve or deny the certification
request within 60 days of receipt of a complete application. A few
commenters argued that the 60-day default would ensure consistency and
predictability for stakeholders. One commenter proposed that the
default be 60 days unless the Federal agency regulations define a
different reasonable period of time, provided it is not less than 60
days, which would allow FERC to continue applying one year, per its
regulations. Relatedly, other commenters opined that the final rule
should clarify that if a Federal agency has a regulation or guidance
document establishing a longer period for a particular type of request,
that regulation or guidance document applies.
    EPA agrees in part and disagrees in part with these comments. EPA
agrees that some certifying authorities often review many simpler
projects in a short period of time, such as 30 or 60 days. EPA
recognizes that a 60-day reasonable period of time is being implemented
for section 401 decisions for some licenses and permits, including by
EPA for draft NPDES permits and by the Corps. EPA disagrees that 60
days as a default reasonable period of time for all projects is
practical for the reasons provided in the Agency's rationale above, in
addition to the many comments summarized below explaining why a 60-day
default for all projects is not sufficient. EPA agrees that a uniform
period can provide clarity to project proponents and other
stakeholders, but any uniform period should only be a default to allow
the certifying authority and Federal agency to determine, as
appropriate, the review timeframe on an individual or categorical
basis. While this may reduce the ability of project proponents to
anticipate the timeline for the certification process, they will still
have six months as a default guidepost, plus EPA encourages certifying
authorities and Federal agencies to enter into categorical agreements
that will allow project proponents to anticipate timelines for
certification processes. The default reasonable period of time would
not apply if the Federal agency and certifying authority agree to a
different time. EPA does not agree that Federal agency defaults in
regulation that are less than one year should supersede the

need for a certifying authority and Federal agency to collaborate in
setting the reasonable period of time. That said, if a Federal agency
establishes a one-year reasonable period of time in regulation, it
would not be at odds with the final rule's language or intent. Rather,
in such a scenario (e.g., FERC regulations), it is unnecessary for the
certifying authority and Federal agency to negotiate an alternate
reasonable period of time because the Federal agency has already agreed
to the maximum amount of time statutorily allowed, and if the
certifying authority determines that one year is too long, it may act
on the request for certification as early as it chooses. In these
circumstances, individual written agreements for each request for
certification would not be necessary, since a negotiation between the
certifying authority and Federal agency would not need to occur.
    Most commenters opposed the 60-day default reasonable period of
time. Commenters noted that while 60 days may be enough time for
simpler or more routine projects, which may include some projects
covered by general or nationwide permits, 60 days would be insufficient
for especially novel, complicated, controversial, or complex projects.
Some commenters provided various examples of such project types,
including FERC pipeline authorizations, relicensing of hydroelectric
dams, water supply projects, liquefied natural gas (LNG) terminals,
deep-water ports, and projects that trigger the need for an
environmental impact statement (EIS) or multiple Federal permits.
Commenters also added that each request is different and carries unique
implications to be examined based on the specific characteristics of
the water bodies and proposed project and Federal license or permit in
question. Some commenters said that because the proposed rule would
require agreement between the Federal agency and certifying authority
on a different amount of time, the proposal would effectively and
inappropriately give Federal agencies veto power over certifying
authorities, infringing on principles of collaborative federalism.
Commenters also said that states and Tribes know their own procedures,
resources, and applicable requirements and should have input into
deciding the length of the reasonable period of time. Lastly,
commenters argued that the 60-day default would be inadequate if the
final rule does not require submittal of the draft Federal license or
permit in a request for certification, noting that the proposed default
appeared to be predicated on the assumption that the ``request'' the
certifying authority will receive will include a draft Federal license
or permit.
    The Agency has decided to finalize a default reasonable period of
time of six months to best balance equities between the Federal agency
and certifying authority. As discussed above, Federal agencies and
certifying authorities offer different types of relevant expertise for
setting the reasonable period of time, and EPA encourages them to
establish categorical reasonable period of time. The final rule default
provides both parties with ample time to negotiate the reasonable
period of time and inform its length based on their respective
expertise but provides a default middle ground (half of the maximum one
year) in the event an agreement cannot be reached. EPA acknowledges
that 60 days may not be a sufficient default for certain project types
and has accordingly shifted the default reasonable period of time to
six months. However, the Agency emphasizes that the default only
applies in the absence of a written agreement between the certifying
authority and Federal agency, either categorically or on a case-by-case
basis. The Agency encourages consideration of project complexities when
setting the reasonable period of time.
    Some commenters alleged that the proposed default reasonable period
of time is contrary to the plain language and intent or purpose of CWA
section 401. These commenters said Congress did not authorize EPA to
contravene the statute by mandating action, or allowing the Federal
agency to mandate action, in less than one year; and if there should
there be any default, it should simply be the one year allowed under
the statute. EPA disagrees with these commenters. As discussed above,
section 401(a)(1) provides that the reasonable period of time ``shall
not exceed one year,'' which means that the reasonable period of time
can be less than one year. As stated above, if Congress meant for the
reasonable period of time to be one year in all cases, it would have
simply written ``shall be one year.'' But Congress did not do that. For
the reasonable period of time to ``not exceed one year,'' it must
either be less than or equal to one year. Under the clear language of
the statute, Congress envisioned a scenario in which the reasonable
period of time could be less than one year. For the reasons explained
in this section, EPA reasonably decided on six months as the default,
which is half of the maximum allowable time, substantially longer than
the proposed and often applied 60 days, and consistent with almost 50
years of implementation under the 1971 Rule. Again, the default only
applies where the Federal agency and certifying authority cannot agree
on another period of time, which EPA expects to be rare. In sum, this
approach is consistent with the plain text of CWA section 401 and the
Agency's longstanding implementation of that text under the 1971 Rule,
which acknowledged that the reasonable period of time may be less than
one year and is generally considered to be six months. See 40 CFR
121.16(b) (2019). Nevertheless, the Agency re-emphasizes that six
months is only the default, and that certifying authorities and Federal
agencies may agree to a reasonable period of time less than or equal to
one year on a case-by-case or categorical basis.
b. Extensions to the Reasonable Period of Time
    As mentioned previously, the final rule provides that Federal
agencies and certifying authorities may agree to extend the reasonable
period of time, provided it does not exceed the statutory one-year
limit. Additionally, there may be circumstances where the established
or default reasonable period of time is not sufficient to allow the
certifying authority to complete its review. Therefore, the final rule
provides automatic extensions to accommodate public notice procedures
or due to force majeure events. In these two circumstances, the
reasonable period of time is extended by the time needed by public
notice procedures or the force majeure event, which would be
communicated in the written justification by the certifying authority
to the Federal agency. The Agency is finalizing that extensions of the
reasonable period of time must occur to accommodate certifying
authority public notice ``procedures,'' rather than public notice
``requirements'' as was proposed. This change is consistent with the
statutory language that certifying authorities ``shall establish
procedures for public notice in the case of all applications for
certification.'' 33 U.S.C. 1341(a)(1). The change to ``procedures''
also clarifies that extensions to the reasonable period of time could
be due to subsequent public hearing procedures, and this language is
consistent with the final rule language for certification decisions and
Federal agency review at Sec. Sec.  121.7 and 121.8. The statute does
not address extending the reasonable period of time once it has
started; it does not prohibit extending the reasonable period of time
as long as the certifying authority ``acts'' within one year from the
date the request for

certification is received. The statute also does not specify who may
extend the reasonable period of time or the terms on which it may be
extended. The 1971 Rule was also silent on extensions. However, several
Federal agencies, including EPA and the Corps, have established
regulations allowing extensions to their default reasonable periods of
time. See 40 CFR 124.53(c)(3) (2022) (allowing for a reasonable period
of time greater than 60 days for certification requests on NPDES
permits where the EPA Regional Administrator finds ``unusual
circumstances''); 33 CFR 325.2(b)(1)(ii) (allowing for a reasonable
period of time greater than 60 days for certification requests on Corps
permits when the ``district engineer determines a shorter or longer
period is reasonable for the state to act.''). The 2020 Rule allowed
certifying authorities to request an extension of the reasonable period
of time. 40 CFR 121.6(d) (2020). However, only the Federal agency had
the power to extend the reasonable period of time. Id.; see also 85 FR
42260. Under the 2020 Rule, the Federal agency was not required to
grant extension requests. See 40 CFR 121.6(d)(2) (2020). As a result,
Federal agencies denied those requests even in situations where the
certifying authority said it was not able to act within the established
timeframe (e.g., where state public notice procedures required more
time than the regulatory reasonable period of time). For instance, one
commenter noted that its requests for extensions due to public notice
procedures were refused by the Corps for the 2020 Nationwide General
Permits.
    The Agency proposed at Sec.  121.6(d) to allow certifying
authorities and Federal agencies to jointly extend the reasonable
period of time in a written agreement, as long as the project proponent
was consulted, and the extension did not exceed one year from the
receipt of request for certification. The Agency also recognized that
there were circumstances under which the Federal agency should extend
the reasonable period of time without the certifying authority needing
to negotiate an agreement. Accordingly, the Agency proposed at Sec.
121.6(c) to identify two scenarios that would require the extension of
the reasonable period of time: force majeure events and public notice
procedures. Under the proposed rule, the certifying authority had to
notify the Federal agency through a written justification prior to the
end of the reasonable period of time. Upon notification, the reasonable
period of time would be extended by the period needed to fulfill public
notice procedures or the force majeure event, provided such extension
did not exceed one year from receipt of the request for certification.
    The Agency is finalizing its proposed approach to extending the
reasonable period of time, including allowing certifying authorities
and Federal agencies to determine collaboratively whether and how the
reasonable period of time should be extended, as well as allowing for
automatic extensions in limited scenarios, as long as it does not
exceed one year. 40 CFR 121.6(d) and (e). The final rule approach
balances Federal agency and certifying authority equities better than
the 1971 Rule and the 2020 Rule for the reasons explained in this
section. This approach is consistent with the approach for joint
establishment of the reasonable period of time. It also aligns with
cooperative federalism principles central to the CWA. Although the
Agency is not finalizing the requirement to consult with the project
proponent, the final rule does allow for input from the project
proponent. The certifying authority and Federal agency should
communicate any extensions to the reasonable period of time to the
project proponent.
    Most of the commenters who addressed extensions of the reasonable
period of time supported allowing certifying authorities and Federal
agencies to agree to extensions. A few commenters said that the Federal
agency should have the sole discretion to extend the reasonable period
of time, and another commenter said that the certifying authority
should be the only one to determine the extension. One commenter
suggested that extensions should be granted only if EPA finds that
unusual circumstances require a longer time. Some commenters
recommended that the project proponent should also be engaged in the
determination of extending the reasonable period of time. Multiple
commenters said that extensions agreed on by the Federal agency and
certifying authority should have justifiable and reasonable limits that
address the concerns of the project proponent. Conversely, other
commenters recommended that project proponents not be consulted but
rather notified about any extensions.
    Consistent with the final rule's collaborative approach for setting
the reasonable period of time, EPA maintains that the Federal agency
and certifying authority should be able to jointly agree to extensions,
provided any extension does not exceed one year from the receipt of the
request for certification. Both the Federal agency and certifying
authority can provide insight on the length of time a review needs to
be extended, based on their knowledge of the Federal licensing or
permitting process and their knowledge of water quality and applicable
state or Tribal laws, respectively. The Agency is not finalizing
proposed text that would have required project proponent consultation.
Under this final rule, the project proponent does not play a role in
setting the reasonable period of time, see Sec.  121.6(b), so it is
unnecessary to provide the project proponent with a role in extensions.
Additionally, considering the annual average number of certification
requests,\52\ and therefore possible extension requests, EPA finds it
unreasonable to require project proponent consultation on all requests
for extension. However, the final rule does not prevent the certifying
authority and Federal agency from seeking input from the project
proponent. EPA also notes that this final rule allows certifying
authorities, in limited circumstances, to unilaterally extend the
reasonable period of time. The final rule recognizes that there are
circumstances the reasonable period of time should be extended without
the certifying authority needing to negotiate an agreement: where a
certification decision cannot be rendered within the reasonable period
of time due to force majeure events (including, but not limited to,
government closure or natural disasters) and where the state or Tribal
public notice and comment process takes longer than the negotiated or
default reasonable period of time.
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    \52\ See footnote 51.
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    All commenters who addressed extensions of the reasonable period of
time expressed support for extensions due to unforeseen circumstances