On June 6, 2024, the Federal Energy Regulatory Commission (“FERC”) published a Notice of Proposed Rulemaking (Docket No. RM24-5) to clarify its regulations regarding water quality certification pursuant to Section 401 of the Federal Water Pollution Control Act (“Clean Water Act”). The proposed rule aims to provide developers and stakeholders with more bright-line rules dictating whether water quality certification is required for certain projects and how long certifying authorities have to respond to such applications before waiving those requirements by default. This proposed rule comes in light of recent regulatory changes and litigation regarding the scope of a certifying authority’s review of a water quality certification request and whether a certifying authority has failed to act on a water quality certification request within the mandated time period.
Reasonable Period of Time
Pursuant to the Federal Power Act (“FPA”), FERC has the authority to decide whether to license private, municipal, and state hydropower projects on navigable waters. However, applicants must first obtain a water quality certification or waiver of certification from controlling states if the proposed project may result in a discharge into navigable waters of the United States.
Applying to all proceedings before FERC that require water quality certification pursuant to Section 401 of the Clean Water Act, the proposed rule establishes that the “reasonable period of time” for a certifying authority to act on a water quality certification request is one year from receipt of the request. After the lapse of one year, the certifying authority will be deemed to have waived the certification requirements, water quality conditions will no longer be mandatory, and FERC will have discretion to move forward regarding the application for licensing, amendment, or surrender.
While Section 401 of the Clean Water Act does not establish a set definition for a “reasonable period of time,” it requires that inaction “shall not exceed one year.” The U.S. Environmental Protection Agency (“EPA”), which is charged with administering the Clean Water Act, generally deems that a certifying authority has waived the certification requirements after only six months, and this practice was promulgated in EPA’s 2023 Certification Improvement Rule. However, EPA’s rule also allows federal agencies to establish a one-year categorical “reasonable period of time” by regulation.
Hydropower Exemptions
The proposed rule also clarifies that all FERC authorizations that have the potential to discharge into navigable waters of the United States require a water quality certification or waiver of certification. The proposed rule mandates that applicants seeking hydropower exemptions, in addition to those applying for licensing, amendments to licensing, and surrender of licensing, must obtain water quality certification or waiver of certification if the proposed project may result in a discharge into navigable waters of the United States. FERC emphasizes that because an exemption is a federal permit, such applications are subject to Section 401 of the Clean Water Act.
Expedited Licensing
Finally, the proposed rule updates the timing of filing requirements for the expedited licensing process, relevant for qualifying non-federal hydropower projects at existing nonpowered dams and closed-loop pumped storage projects. The update aims to alleviate current conflict with EPA’s Certification Improvement Rule, which requires that water quality certification requests include a copy of the final license application. Current FERC regulations regarding licensing applications require a copy of the request for certification, the issued certification, or evidence of a waiver of certification. Accordingly, the proposed change requires an applicant pursuing the expedited licensing process to file a copy of either their water quality certification request, the issued certification, or the certifying authority’s express waiver within 60 days of its application.
Comments on the proposed rulemaking are due July 8, 2024.
For more information regarding the proposed changes, or for assistance with hydropower licensing, amendments to licensing, surrender of licensing, or exemption applications, please contact Sean Neal, Sylwia Dakowicz, or Nina Wu.
