On November 21, 2024, the Federal Energy Regulatory Commission (“FERC”) issued a Final Rule regarding Clean Water Act Section 401(a)(1) water quality certification requirements.
FERC clarified that for any proceedings before FERC that require a water quality certification pursuant to section 401(a)(1) of the Clean Water Act, the reasonable period of time during which the certifying authority may act on the water quality certification request is one year from the certifying authority’s receipt of the request. FERC also clarified that all FERC authorizations that have the potential to discharge into waters of the United States require a section 401 water quality certification or waiver, including, depending on the activity being proposed, authorizations associated with hydropower exemptions, amendments, and surrenders. FERC declined to change its timeline for filing, maintaining that applicants must file within 60 days after issuance of the notice of ready for environmental analysis the water quality certification, water quality certification application, or proof of waiver.
FERC changed the timing of filing a water quality certification application under part 7 of FERC’s regulations, which governs the expedited licensing process available for a subset of hydropower projects. FERC now requires that an applicant under part 7 file with FERC a copy of the certification, certification request, or proof of waiver within 60 days after submitting its license application (previously, FERC required that the application contain such showings). FERC further clarified that FERC’s expedited licensing process does not apply to license applications under parts 4 and 5 of FERC’s regulations or to exemptions, amendments to existing licenses, or surrender applications. Finally, FERC updated terminology in parts 4, 5, and 7 of its regulations to better align with terms defined by the Environmental Protection Agency as well as FERC practice and court precedent.
FERC’s Final Rule is effective January 6, 2024.
The FERC Order is available here.
Please contact Sean M. Neal or Sylwia Dakowicz for further information.
