96524 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

1 ‘‘Authorized Tribes’’ refers to Indian Tribes that 

have been approved for ‘‘treatment as a state’’ status 

under the CWA. Authorized Tribes may also have 

the authority under section 401 to issue water 

quality certifications. 

Paragraph 6004 Class E Airspace Areas 

Designated as an Extension to a Class D or 

Class E Surface Area. 

* * * * * 

AWP AZ E4 Flagstaff, AZ [Establish] 

Flagstaff Pulliam Airport, AZ 

(Lat 35°08′25′′ N, long 111°40′09′′ W) 

That airspace extending upward from the 

surface at Flagstaff Pullman Airport 

extending from the 4.3-mile radius of the 

airport beginning at the point lat 35°12′33′′ N, 

long 111°38′42′′ W, to lat 35°16′44′′ N, long 

111°34′17′′ W, then following the 9.6-mile 

radius from the airport clockwise to lat 

35°02′27′′ N, long 111°49′20′′ W, to lat 

35°06′38′′ N, long 111°44′56′′ W, then 

following the 4.3-mile radius of the airport 

counterclockwise to the point of origination. 

This Class E airspace area is effective during 

the specific dates and times established in 

advance by a Notice to Air Missions. The 

effective dates and times will thereafter be 

continuously published in the Chart 

Supplement. 

* * * * * 

Paragraph 6005 Class E Airspace Areas 

Extending Upward From 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

AWP AZ E5 Flagstaff, AZ [Amended] 

Flagstaff Pulliam Airport, AZ 

(Lat 35°08′25′′ N, long 111°40′09′′ W) 

That airspace extending upward from 700 

feet above the surface within a 16.8-mile 

radius of the Flagstaff Pulliam Airport. 

* * * * * 

Issued in Fort Worth, Texas, on December 

2, 2024. 

Martin A. Skinner, 

Acting Manager, Operations Support Group, 

ATO Central Service Center 

[FR Doc. 2024–28434 Filed 12–4–24; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Parts 4, 5, 6, and 7 

[Docket No. RM24–5–000] 

Establishing Reasonable Period of 

Time and Clarifications Regarding 

Clean Water Act Section 401(a)(1) 

Certifications for Hydroelectric 

Proceedings 

AGENCY: Federal Energy Regulatory 

Commission, Department of Energy. 

ACTION: Final rule. 

SUMMARY: In this final rule, the Federal 

Energy Regulatory Commission 

(Commission) amends its regulations to 

clarify that for any proceedings before 

the Commission that require a water 

quality certification pursuant to section 

401(a)(1) of the Federal Water Pollution 

Control Act (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. The final rule also 

clarifies that all Commission 

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. Finally, the final rule 

provides updated terminology in the 

Commission’s hydropower regulations, 

updates the timing of the filing 

requirements for the Commission’s 

expedited hydropower licensing 

process, and in response to comments 

on the Commission’s Notice of Proposed 

Rulemaking, removes inconsistent 

language from parts 5 and 7 of the 

Commission’s regulations. 

DATES: The rule is effective January 6, 

2025. 

FOR FURTHER INFORMATION CONTACT: 

Amber Leasure-Earnhardt (Legal 

Information), Office of the General 

Counsel, Federal Energy Regulatory 

Commission, 888 First Street NE, 

Washington, DC 20426, (202) 502– 

6891, Amber.Leasure-Earnhardt@

ferc.gov 

Miranda Millerick (Legal Information), 

Office of the General Counsel, Federal 

Energy Regulatory Commission, 888 

First Street NE, Washington, DC 

20426, (202) 502–8781, 

Miranda.Millerick@ferc.gov 

Michael Tust (Technical Information), 

Office of Energy Projects, Federal 

Energy Regulatory Commission, 888 

First Street NE, Washington, DC 

20426, (202) 502–6522 

Jody Callihan (Technical Information), 

Office of Energy Projects, Federal 

Energy Regulatory Commission, 888 

First Street NE, Washington, DC 

20426, (202) 502–8278 

Andrea Claros (Technical Information), 

Office of Energy Projects, Federal 

Energy Regulatory Commission, 888 

First Street NE, Washington, DC 

20426, (202) 502–8171 

SUPPLEMENTARY INFORMATION: 

Paragraph Nos. 

I. Background ................................................................................................................................................................................ 2 

II. Notice of Proposed Rulemaking .............................................................................................................................................. 6 

III. Discussion ............................................................................................................................................................................... 8 

A. Reasonable Period of Time .............................................................................................................................................. 8 

B. Hydropower Exemptions .................................................................................................................................................. 10 

C. Terminology ...................................................................................................................................................................... 10 

D. Timing of Section 401 Filing Requirements Under Parts 4 and 5 ................................................................................ 11 

E. Timing of Section 401 Filing Requirements Under Part 7 ............................................................................................. 13 

F. Additional Comments Under Parts 6 and 7 .................................................................................................................... 15 

IV. Regulatory Requirements ....................................................................................................................................................... 19 

A. Information Collection Statement ................................................................................................................................... 19 

B. Environmental Analysis ................................................................................................................................................... 20 

C. Regulatory Flexibility Act ................................................................................................................................................ 21 

D. Document Availability ..................................................................................................................................................... 23 

E. Effective Date and Congressional Notification ................................................................................................................ 23 

I. Background 

A. Clean Water Act Section 401 

1. Section 401 of the Clean Water Act 

(CWA) is a direct grant of authority to 

states and authorized Tribes 1 (i.e., 

certifying authorities) to review for 

compliance with appropriate federal, 

state, and Tribal water quality 

requirements any discharge into waters 

of the United States that may result from 

a proposed activity that requires a 


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Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96525 

2 33 U.S.C. 1341(a)(1). 

3 Id. 

4 Id. 

5Exec. Order No. 13990, 86 FR 7037 (Jan. 25, 

2021). EPA issued the Clean Water Act Section 401 

Certification Rule on June 1, 2020. 85 FR 42210 

(July 13, 2020). 

6 88 FR 66558 (Sept. 27, 2023). 

7The rule was published in the Federal Register 

on September 27, 2023, and became effective 60 

days after publication on November 27, 2023. 

8 88 FR 66663. 

9 Id. at 66588. 

10Waiver of the Water Quality Certification 

Requirements of Section 401(a)(1) of the Clean 

Water Act, Order No. 464, 52 FR 5446 (Feb. 23, 

1987), FERC Stats. & Regs. ¶ 30,730 (1987) (crossreferenced at 38 FERC ¶ 61,146); 18 CFR 

4.34(b)(5)(iii). Part 4 of the Commission’s 

regulations governs applicants using the traditional 

licensing process and the alternative licensing 

process. 

11Hydroelectric Licensing under the Fed. Power 

Act, Order No. 2002, 68 FR 51070 (Aug. 25, 2003), 

Order No. 2002–A, 69 FR 5268 (Feb. 4, 2004), 104 

FERC ¶ 61,109 (2003), order on reh’g, 106 FERC 

¶ 61,037 (2004); 18 CFR 5.23(b)(2). Part 5 governs 

applicants using the integrated licensing process. 

12Hydroelectric Licensing Reguls. under the 

Am.’s Water Infrastructure Act of 2018, Order No. 

858, 84 FR 17064 (Apr. 24, 2019), 167 FERC 

¶ 61,050 (2019); 18 CFR 7.2(b)(3)(ii). Part 7 governs 

applicants using the expedited licensing process for 

qualifying non-federal hydropower projects at 

existing nonpowered dams and for closed-loop 

pumped storage projects. 

13 In 2021, the Commission also promulgated 

subsections 153.4 and 157.22(b) of its regulations 

governing liquified natural gas (LNG) facilities and 

natural gas pipelines, respectively, to establish a 

categorical ‘‘reasonable period of time’’ of one year 

for a certifying authority to act on a certification 

request. 18 CFR 153.4, 157.22(b); Waiver of the 

Water Quality Certification Requirements of Section 

401(a)(1) of the Clean Water Act, 174 FERC ¶ 61,196 

(2021). 

14Exemption from All of Part of Part 1 of the Fed. 

Power Act of Small Hydroelectric Power Projects 

with an Installed Capacity of 5 Megawatts of Less, 

Order No. 106, 45 FR 76115 (Nov. 18, 1980), FERC 

Stats. & Regs. ¶ 30,204, at 31,368 (1980) (crossreferenced at 13 FERC ¶ 61,116). The Commission’s 

hydropower exemption regulations were revised in 

2014 to increase the maximum installed capacity 

for eligible small hydroelectric power projects from 

5 MW to 10 MW. Revisions & Tech. Corrections to 

Conform the Commission’s Reguls. to the 

Hydropower Regul. Efficiency Act of 2013, Order 

No. 800, 79 FR 59105 (Oct. 1, 2014), 148 FERC 

¶ 61,197 (2014); see also 18 CFR 4.101–4.108. The 

Commission also issues exemptions for qualifying 

conduit hydroelectric projects, pursuant to section 

30 of the FPA, as amended. See 18 CFR 4.90–4.96. 

15The Commission’s prior statement in a 

preamble does not supersede the statutory mandate 

under Section 401(a) of the CWA. 

16Order No. 464, FERC Stats. & Regs. ¶ 30,730 at 

30,546. 

17See, e.g., City of Nashua, N.H., 182 FERC 

¶ 62,009, at PP 12–14 (2023) (stating ‘‘[u]nder 

Section 401(a) of the [CWA], the Commission may 

not authorize construction or operation of a 

hydroelectric project that may result in a discharge 

into the navigable waters of the United States 

unless the state water quality certifying agency 

either has issued water quality certification for the 

project or has waived certification’’); New England 

Hydropower Co., LLC, 155 FERC ¶ 62,132, at P 13 

(2016) (making the water quality certification 

conditions mandatory conditions of the exemption); 

Charlie Hotchkin & Claire Fay, 132 FERC ¶ 62,037, 

at P 7 (2010) (same). 

federal license or permit.2 Section 

401(a)(1) of the CWA prohibits a federal 

agency from issuing a federal license, 

permit, or other authorization for a 

project or activity that may result in a 

discharge into waters of the United 

States, such as a Federal Energy 

Regulatory Commission (Commission) 

order issuing a license for a 

hydroelectric project or order 

authorizing an amendment or surrender 

of a license, unless the appropriate 

certifying authority either grants 

certification or waives its certification 

authority.3 Under the Clean Water Act, 

if the certifying authority ‘‘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,’’ then 

certification is waived.4

2. The January 2021 Executive Order 

13990 entitled Protecting Public Health 

and the Environment and Restoring 

Science to Tackle the Climate Crisis, 

among other things directed the 

Environmental Protection Agency (EPA) 

to review the water quality certification 

rule EPA promulgated in 2020 under 

section 401 of the CWA.5 In compliance 

with the Executive Order, on September 

14, 2023, the EPA issued a final Clean 

Water Act Section 401 Water Quality 

Certification Improvement Rule 

(Certification Improvement Rule),6

which revised its regulations under 40 

CFR part 121.7 The Certification 

Improvement Rule applies to all actions 

after the effective date of the rule. 

B. Reasonable Period of Time 

3. Regarding the statutory reasonable 

period of time in which a certifying 

authority must act on a request for 

certification, section 121.6(b) of EPA’s 

Certification Improvement Rule 

contemplates that the federal agency 

and certifying authority will establish a 

reasonable period of time on a case-bycase basis. If the federal agency and 

certifying authority do not agree, the 

rule sets a six-month default reasonable 

period of time.8 The rule, however, also 

provides that if a federal agency 

establishes a one-year reasonable period 

of time by regulation, the maximum 

time allowed under the CWA, the 

federal agency may use that one year as 

the reasonable period of time without 

negotiating with certifying authorities.9

4. With respect to licensing 

proceedings, the Commission 

promulgated regulations providing for a 

categorical one-year reasonable period 

of time for action by a certifying 

authority, as reflected in subsection 

4.34(b)(5)(iii) of its regulations in 

1987,10 subsection 5.23(b)(2) of its 

regulations in 2003,11 and subsection 

7.2(b)(3)(ii) of its regulations in 2019.12

Although it is the Commission’s 

practice to apply a one-year reasonable 

period of time for water quality 

certification applications in all 

hydropower proceedings where they are 

required,13 the current regulations are 

silent as to certain Federal Power Act 

(FPA) proceedings, including those 

regarding hydropower exemptions (a 

subcategory of licensing proceedings), 

amendments to hydropower licenses, or 

surrenders of hydropower licenses, 

some of which may trigger section 401 

of the CWA. 

C. Hydropower Exemptions 

5. Currently, the Commission’s 

regulations do not specify that 

hydropower exemption applicants must 

obtain a water quality certification or 

waiver if the proposed project may 

result in a discharge into waters of the 

United States. The Commission stated 

in its preamble to the 1980 rule 

establishing the small hydropower 

exemption that there is no applicable 

section 401 requirement where there is 

no license.14 This unsupported 

statement implied, incorrectly, that an 

exemption is not a federal license or 

permit subject to section 401 of the 

CWA.15 Subsequently, in 1987, the 

Commission explained in its response to 

comments for its final rule promulgating 

the Commission’s part 4 regulations for 

waiver of water quality certification 

requirements that, although the 

Commission had not required 

applicants for exemptions to obtain 

water quality certification, it would 

consider changing its practice in a later 

rulemaking.16 As matter of practice, the 

Commission incorporates water quality 

certification conditions into final 

exemption orders when a certification is 

issued by the relevant certifying 

authority.17

II. Notice of Proposed Rulemaking 

6. On May 23, 2024, the Commission 

issued a Notice of Proposed Rulemaking 

(NOPR) proposing to amend its 

regulations to: (1) clarify that, for all 

proceedings before the Commission that 

require a water quality certification 

under section 401(a)(1) of the CWA, 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; (2) clarify that any 

Commission 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 


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96526 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

18Establishment of Categorical Reasonable Period 

of Time for Action on Requests for Water Quality 

Certification under Section 401(a)(1) of the Clean 

Water Act & Clarifying Types of Hydroelectric 

Project Procs. that May Require Water Quality 

Certification, 89 FR 48,351(June 6, 2024), 187 FERC 

¶ 61,094 (2024) (NOPR). 

19 89 FR 48351. 

20The Commission’s Rules of Practice and 

Procedure provide that if a filing deadline falls on 

a Saturday, Sunday, holiday, or other day when the 

Commission is closed for business, the filing 

deadline does not end until the close of business 

on the next business day. 18 CFR 385.2007(a)(2). 

Because the 30-day filing deadline fell on a 

Saturday (i.e., July 6, 2024), the filing deadline was 

extended until the close of business on Monday, 

July 8, 2024. 

21Hydro Coalition is an association of over 160 

national, regional, and local membership groups, 

including Alabama Rivers Alliance, American 

Rivers, American Whitewater, Appalachian 

Mountain Club, California Outdoors, California 

Sportfishing Protection Alliance, California Trout, 

Foothill Conservancy, Friends of the River, Idaho 

Rivers United, Michigan Hydro Relicensing 

Coalition, South Yuba River Citizens League, and 

Trout Unlimited. 

22NHA is a non-profit national association, and 

its membership consists of more than 320 

organizations, including public and investor-owned 

utilities, independent power producers, equipment 

manufacturers, and professional organizations that 

provide legal, environmental, and engineering 

services to the water power industry. 

23NOPR, 187 FERC ¶ 61,094 at P 7 (citing Waiver 

of the Water Quality Certification Requirements of 

Section 401(a)(1) of the Clean Water Act, 174 FERC 

¶ 61,196; Order No. 464, FERC Stats. & Regs. 

¶ 30,730). 

24 Id. 

25 Id. 

26 Id. P 8. 

27Maryland Department of the Environment 

Comments at 1 (emphasizing that the one-year 

timeframe is reasonable if the application submitted 

is complete or nearly complete, which is crucial for 

the certifying authority). 

28 Idaho DEQ Comments at 1. 

29Oregon DEQ Comments at 1; NHA Comments 

at 2. 

30Hydro Coalition Comments at 4. 

31NOPR, 187 FERC ¶ 61,094 at P 9. 

32 Id. 

33See Oregon DEQ Comments at 1; Idaho DEQ 

Comments at 1; Hydro Coalition Comments at 5. 

34NOPR, 187 FERC ¶ 61,094 at P 10 (citing 88 FR 

66662; 40 CFR 121.1(b)). The NOPR also explained 

that there are other parts of the Commission’s 

regulations that use the term ‘‘certifying agency’’ in 

the context of section 401 that the NOPR was not 

proposing to update but clarified that these two 

terms would be used interchangeably throughout 

the Commission’s regulations. Id. at note 20. 

35NOPR, 187 FERC ¶ 61,094 at P 10 (citing 

section 121.7 of the EPA’s regulations, which 

stipulates that a certifying authority may act on a 

request for certification in one of four ways: grant 

certification, grant certification with conditions, 

deny certification, or expressly waive certification). 

36See Idaho DEQ Comments at 1. 

being proposed, authorizations 

associated with hydropower 

exemptions, amendments, and 

surrenders; (3) update terminology in 

the Commission’s hydropower 

regulations; and (4) update the timing of 

the filing requirements for the 

Commission’s expedited hydropower 

licensing process.18

7. The NOPR established a 30-day 

comment period after the date of 

publication in the Federal Register. The 

NOPR was published in the Federal 

Register on June 6, 2024,19 setting July 

8, 2024, as the deadline for filing 

comments.20 On June 25, 2024, the 

Hydropower Reform Coalition (Hydro 

Coalition) 21 filed a motion to extend the 

deadline for filing comments on the 

NOPR, which the Commission granted 

on June 28, 2024, with the revised 

deadline of August 7, 2024. 

8. In response to the NOPR, the 

Commission received comments, from 

five entities, Oregon Department of 

Environmental Quality (DEQ), Maryland 

Department of the Environment, Idaho 

Department of Environmental Quality 

(DEQ), National Hydropower 

Association, Inc. (NHA),22 and Hydro 

Coalition. The proposal set forth in the 

NOPR, the comments received in 

response to the NOPR, and the 

Commission’s determinations are 

discussed below. 

III. Discussion 

A. Reasonable Period of Time 

9. The NOPR explained that the 

Commission continues to believe that 

the benefits of setting a categorical oneyear reasonable period of time for a 

certifying authority to act on a request 

for certification best serves the public 

interest by providing certainty and 

consistency for all Commission 

hydropower proceedings in which a 

section 401 certification is required.23

We noted that the proposed rule is 

consistent with EPA’s proviso that 

federal agencies may establish a 

categorical one-year reasonable period 

of time in their regulations, which 

would promote administrative 

efficiency given there would be no need 

to negotiate with the certifying authority 

in every case where a section 401 water 

quality certification is required.24

10. Therefore, the NOPR clarified that 

for all proceedings before the 

Commission that require water quality 

certification, the reasonable period of 

time for a certifying authority to act on 

the certification request is one year from 

the certifying authority’s receipt of the 

request.25 Specifically, the Commission 

proposed to revise its regulations in 

parts 4, 5, 6, and 7 to cover any 

proceedings before the Commission that 

may require a section 401 water quality 

certification, so that all certification 

requests related to a Commission 

proceeding would be governed by the 

same reasonable period of time and be 

consistent with the regulations currently 

governing applications for hydropower 

licenses.26

11. In response to the Commission’s 

request for comments on the NOPR, all 

commenters supported setting a 

categorical one-year reasonable period 

of time. Commenters stated that the oneyear reasonable period of time would 

save time and resources; 27 promote 

administrative efficiency; 28 serve the 

public interest by providing certainty, 

clarity, and consistency; 29 and better 

serve the purposes of the CWA and the 

FPA for hydropower projects compared 

to EPA’s six-month default reasonable 

period of time.30

B. Hydropower Exemptions 

12. The NOPR explicitly incorporated 

applications for an exemption from 

licensing under the water quality 

certification requirements in part 4 of 

the Commission’s regulations to remove 

any uncertainty as to whether an 

applicant for an exemption should 

apply for water quality certification if 

the proposed project may result in a 

discharge into waters of the United 

States.31 The proposed rule further 

clarified that because exemptions are 

federal permits, section 401 of the CWA 

applies to such projects.32 Several 

commenters support the Commission’s 

clarification that section 401 applies to 

exemptions, as it eliminates uncertainty 

in the exemption process.33 No 

commenters oppose this clarification. 

C. Terminology 

13. The NOPR proposed to update the 

term ‘‘certifying agency’’ previously 

used in the Commission’s regulations in 

parts 4, 5, and 7 to ‘‘certifying 

authority,’’ which is the defined term 

EPA uses in its regulations to describe 

the entity responsible for certifying 

compliance with applicable water 

quality requirements under section 401 

of the CWA.34 The proposed rule also 

incorporated the term ‘‘express’’ waiver 

into the Commission’s regulations in 

parts 4, 5, and 7, to reflect the four ways 

that a certifying authority may act on a 

request for certification, pursuant to 40 

CFR 121.7.35 In the NOPR, the 

Commission explained that these 

proposed changes would align the 

Commission’s regulatory terminology 

with the EPA’s regulatory terminology 

for clarity and consistency. Idaho DEQ 

supports the Commission’s updates to 

terminology for clarity and 

consistency.36 No commenters oppose 

these proposed changes. 


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37 Id. at 2. 

38 Id. 

39Hydro Coalition Comments at 4–5, 8–9. 

40 Id. Hydro Coalition also recommends that the 

Commission change its licensing process to issue 

draft licenses for greater efficiency and 

transparency in the process. Id. at 7–8. This request 

is outside the scope of this rulemaking. 

41See 40 CFR 121.5(a) and (d). The Commission 

recognizes that each certifying authority may 

identify additional contents that are required for a 

compliant water quality certification application, 

which could include the Commission’s NEPA 

document. 40 CFR 121.5(c). 

42See 18 CFR 4.34(b)(5)(i)(B) & 5.23(b)(1)(ii). 

43See 40 CFR 121.4. 

44Further, while we recognize that it might be 

useful for state agencies to have the Commission’s 

NEPA document in hand when developing a water 

quality certification, it would be equally useful for 

the Commission to have the certification in hand 

when developing its NEPA document and, further, 

the Commission needs the certification to prepare 

and issue a license order. 

45The expedited licensing process is available 

under Part 7 for applications for original licenses 

for qualifying non-federal hydropower projects at 

existing nonpowered dams and for certain closedloop pumped storage projects. 18 CFR 7.1(a). 

46 18 CFR 7.2(3); see also NOPR, 187 FERC 

¶ 61,094 at P 11. 

47NOPR, 187 FERC ¶ 61,094 at P 11 (citing 40 

CFR 121.5(a)(1)(i)). 

48 Idaho DEQ Comments at 2. 

49Hydro Coalition Comments at 11. 

50 18 CFR 7.1 (detailing the expedited licensing 

process for original licenses for qualifying nonfederal hydropower projects at existing nonpowered 

dams and for closed-loop pumped storage projects 

under FPA sections 34 and 35). 

51Oregon DEQ Comments at 2. 

52 Id. (citing S.D. Warren Co. v. Maine Bd. of 

Envtl. Prot., 547 U.S. 370, 383 (2006) (‘‘State 

certifications under § 401 are essential in the 

scheme to preserve state authority to address the 

broad range of pollution.’’); 18 CFR 4.38(f)(7)(iii) 

(1995); and State of N.C. v. FERC, 112 F.3d 1175, 

1186 (D.C. Cir. 1997) (‘‘We note that on remand the 

Commission discarded 18 [CFR] 4.38(f)(7)(iii) as an 

alternative basis for upholding the decision not to 

require that a water quality certification be obtained 

Continued 

D. Timing of Section 401 Filing 

Requirements Under Parts 4 and 5 

14. Idaho DEQ filed comments 

requesting that the Commission 

consider changing the timing of the 

filing requirements under 18 CFR 

4.34(b)(5)(i) and 5.23(b), as it, as a 

certifying authority, relies on the 

Commission’s National Environmental 

Policy Act (NEPA) analysis for its water 

quality certification analysis.37 Idaho 

DEQ notes that there are some 

applicants who file their water quality 

certification application well in advance 

of the Commission issuing its notice of 

ready for environmental analysis, a 

practice that Idaho DEQ wants to 

discourage because it needs the 

Commission’s NEPA analysis to 

complete its water quality certification 

review. Idaho DEQ thus requests that 

the Commission reaffirm that our 

existing regulatory requirements are met 

if the applicant submits to the 

Commission a copy of the request for 

certification within 60 days from the 

notice of ready for environmental 

analysis.38

15. Hydro Coalition also requests that 

the Commission consider changing the 

overall timing requirement for when 

applicants must file a water quality 

certification application under parts 4 

and 5 of the Commission’s regulations, 

as the current requirement to file a 

water quality certification application 

within 60 days from the Commission’s 

notice of ready for environmental 

analysis does not allow certifying 

authorities or stakeholders to use the 

Commission’s NEPA analysis, which it 

asserts can cause duplication of efforts, 

delays, and increases certification 

denials without prejudice.39 Thus, 

Hydro Coalition recommends that the 

Commission revise its regulation to 

allow applicants to file their water 

quality certification application at least 

60 days after the draft NEPA document 

is issued.40

16. The Commission declines to 

change its filing requirements under 

sections 4.34(b)(5)(i) and 5.23(b) of its 

regulations. We note that the EPA’s 

regulations setting out the minimum 

content requirements for a request for 

certification do not include the draft or 

final NEPA document.41 Further, we 

believe that our current regulations 

provide the flexibility needed for 

applicants to be able to comply with the 

Commission’s regulations and any filing 

requirements a particular certifying 

authority may require.42 We also note 

that EPA’s updated section 401 

regulations require applicants to request 

a pre-filing meeting with the certifying 

authority at least 30 days prior to 

submitting a request for certification, so 

before an applicant can submit its water 

quality certification application, it 

should know what information is 

needed from the certifying authority for 

a compliant application.43 Therefore, if 

there is a conflict between the certifying 

authority’s and the Commission’s water 

quality certification filing requirements, 

the applicant may bring the filing issue 

to the Commission’s attention.44

E. Timing of Section 401 Filing 

Requirements Under Part 7 

17. The NOPR also proposed changes 

to the timing of the filing requirements 

under part 7 of the Commission’s 

regulations, which governs the 

expedited licensing process available for 

a subset of hydropower projects.45

Currently section 7.2(b)(3) of the 

Commission’s regulations requires that 

an application under part 7 must 

include either a copy of the request for 

a water quality certification, the issued 

certification, or evidence of waiver of 

the certification.46 This requirement 

conflicts with the EPA’s Certification 

Improvement Rule, which requires any 

request for a water quality certification 

to include a copy of the final 

application for the federal license or 

permit.47 To avoid this conflict, the 

Commission proposed that an applicant 

under part 7 must file within 60 days of 

submitting its license application to the 

Commission a copy of the certification 

request, certification, or the certifying 

authority’s express waiver. 

18. Idaho DEQ filed comments in 

support of the Commission’s proposed 

changes to the timing of the filing 

requirements under part 7.48 On the 

other hand, Hydro Coalition states that 

applying for a water quality certification 

within 60 days after the application is 

filed is far too early in the process and 

should be required only after the 

Commission has issued a draft license 

or draft NEPA analysis.49

19. Regarding Hydro Coalition’s 

comments on the proposed changes to 

the timing of the filing requirement 

under part 7, we continue to believe that 

requiring applicants to file certification 

requests (or issued certifications or 

evidence of waiver) within 60 days of 

filing applications is reasonable and 

will assist the Commission in efficiently 

processing applications using the 

expedited process.50

F. Additional Comments Under Parts 5, 

6, and 7 

20. Several commenters filed 

comments requesting that the 

Commission expand the rulemaking to 

change the existing requirements in 

parts 5, 6, and 7 regarding when a new 

section 401 certification request is 

required for: (1) amendments to existing 

licenses under part 5; (2) amendments 

to license applications under part 5; (3) 

license surrenders under part 6; and (4) 

amendments to expedited license 

applications under part 7. 

21. Oregon DEQ does not support the 

proposed changes in part 7, asserting 

that the current language in section 7.7 

allows the Commission to determine 

whether an amendment to an expedited 

license application would result in a 

‘‘material adverse impact on the water 

quality in the discharge from the 

proposed project’’ that would warrant a 

new or modified water quality 

certification.51 It states that this existing 

section is inconsistent with the CWA, 

case law, and the Commission’s repeal 

of a similar provision previously 

included in part 4 of its regulations.52


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96528 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

from North Carolina. As a result, we need not 

address the legality of that regulation despite our 

serious reservations concerning FERC’s attempt to 

redefine the statutory phrase ‘any discharge,’ 33 

U.S.C. [ ] 1341(a)(1), to mean only those discharges 

that are ‘material,’ 18 CFR [ ] 4.38(f)(7)(iii).’’). 

53Oregon DEQ Comments at 2. 

54 Id. at 3. 

55Hydro Coalition Comments at 9 & 12. 

56 Id. at 5–6 & 10–11. 

57Oregon DEQ cites to 18 CFR 4.38(f)(7)(iii) 

(1995), which language was later moved to 18 CFR 

4.34(b)(5)(iv) (2003). See Hydroelectric Licensing 

Under the Fed. Power Act, Order No. 2002, 68 FR 

51070 (Aug. 25, 2003), Order No. 2002–A, 69 FR 

5268 (Feb. 4, 2004), 104 FERC ¶ 61,109 (2003), 

order on reh’g, 106 FERC ¶ 61,037 (2004). 

58The Commission removed section 4.34(b)(5)(iv) 

of its regulations, which was substantively similar 

to sections 5.23(b)(3) and 7.7(a)(1). Section 

4.34(b)(5)(iv) required new requests for water 

quality certification if an application to amend an 

existing license or an application to amend a 

pending application for a license would have a 

material adverse impact on the water quality in the 

discharge from the project. Technical Corrections to 

Commission Regulations, Order No. 756, 77 FR 

4891 (Feb. 1, 2012), 138 FERC ¶ 61,032, at n.2 

(2012) (citing Ala. Rivers Alliance v. FERC, 325 F.3d 

290 (D.C. Cir. 2003)). 

59See, e.g., CSX Transp., Inc. v. Surface Transp. 

Bd., 584 F.3d 1076, 1079–80 (D.C. Cir. 2009) (‘‘To 

satisfy the APA’s notice requirement, the [Notice of 

Proposed Rulemaking] and the final rule need not 

be identical: ‘[a]n agency’s final rule need only be 

a ‘logical outgrowth’ of its notice.’ ’’) (quoting Covad 

Commc’ns Co. v. FCC, 450 F.3d 528, 548 (D.C. Cir. 

2006)); Fertilizer Inst. v. U.S. E.P.A., 935 F.2d 1303, 

1311 (D.C. Cir. 1991) (‘‘This court has long 

recognized that an agency must be able to respond 

flexibly to comments and need not provide a new 

round of notice and comment every time it modifies 

a proposed rule. . . . [A] final rule will be deemed 

to be the logical outgrowth of a proposed rule if a 

new round of notice and comment would not 

provide commenters with ‘their first occasion to 

offer new and different criticisms which the agency 

might find convincing.’ ’’) (quoting United 

Steelworkers of Am. v. Marshall, 647 F.2d 1189, 

1225 (D.C. Cir. 1980)) (internal quotations omitted)). 

60Hydro Coalition Comments at 9–11. 

61 44 U.S.C. 3501–3521. 

62See 5 CFR 1320.12. 

Oregon DEQ asserts that whether an 

amendment to a license application 

triggers a new water quality certification 

request is a determination for the 

certifying authority and not the federal 

agency.53 If the proposed activity 

changes, Oregon DEQ states that a new 

request for certification must be made to 

the certifying authority to ensure 

compliance with all applicable waterquality-related laws, which would 

trigger a new one-year reasonable period 

of time.54

22. Hydro Coalition also asserts that 

the Commission’s proposed rule falls 

short in several areas, including that the 

Commission’s regulations only require 

section 401 certification for 

amendments that ‘‘have a material 

adverse impact on water quality,’’ and 

recommends that the Commission 

clarify in section 5.23 that section 401 

applies to all amendments under 18 

CFR 4.200.55 Hydro Coalition further 

states that the Commission’s regulations 

lack a meaningful surrender process and 

recommends that the Commission 

clarify that section 401 applies to all 

surrenders where the decommissioning 

proposal includes continuing or 

releasing a new discharge into navigable 

waters.56

23. We clarify here that part 7 of the 

Commission’s regulations does not 

apply to license applications under 

parts 4 and 5 of the Commission’s 

regulations, nor to exemptions, 

amendments to existing licenses, or 

surrender applications. We also note 

that the Commission did not propose 

any substantive changes in the NOPR to 

the language in section 7.7, beyond the 

updated terminology and reference to 

section 7.2(c). 

24. Nevertheless, we agree with 

Oregon DEQ 57 and Hydro Coalition that 

section 7.7(a)(1) in the Commission’s 

regulations, which includes the phrase 

‘‘material adverse impact,’’ should be 

removed for consistency and clarity to 

align with current Commission practice. 

The Commission removed that phrase 

from part 4 of its regulations in its 2012 

rulemaking based on Commission 

practice and court precedent.58

25. Similarly, we are removing section 

5.23(b)(3) for consistency and clarity 

within our regulations, as that section is 

identical to section 7.7(a)(1). Although 

section 5.23(b)(3) was not included in 

the NOPR, the NOPR included 

terminology changes within section 

5.23(b); thus, the Commission believes 

that the revisions to 5.23(b)(3) are a 

logical outgrowth of the edits in 7.7 in 

response to stakeholder comments.59

26. With respect to Hydro Coalition’s 

request that the Commission clarify in 

part 6 of its regulations that all 

surrender applications where there is a 

continuing or new discharge and all 

license amendment applications filed 

under 18 CFR 4.200 require an applicant 

to apply for a section 401 certification,60

this rulemaking is limited to updates in 

the Commission’s hydropower 

regulations pertaining to the one-year 

reasonable period of time for a certifying 

authority to act on a request for 

certification, updates to terminology 

and general edits, and timing of section 

401 filing requirements. Accordingly, 

the question of whether a water quality 

certification is required in particular 

cases or classes of cases is beyond the 

scope of this final rule. We note, as 

discussed above, that a new water 

quality certification or waiver would be 

required for any application to 

surrender or amend a license or license 

application if the proposal might result 

in a discharge into waters of the United 

States. This necessarily is determined 

on a case-by-case basis. 

IV. Regulatory Requirements 

A. Information Collection Statement 

27. The Paperwork Reduction Act 61

requires each federal agency to seek and 

obtain the Office of Management and 

Budget’s (OMB) approval before 

undertaking a collection of information 

(i.e., reporting, recordkeeping, or public 

disclosure requirements) directed to ten 

or more persons or contained in a rule 

of general applicability. OMB 

regulations require approval of certain 

information collection requirements 

contained in final rules published in the 

Federal Register.62 This final rule does 

not impose new information collection 

requirements on ten or more persons. 

The final rule does not impose any new 

information collection requirements on 

license, amendment, and surrender 

applicants, nor certifying authorities. 

28. The rule clarifies the filing 

requirements for exemption applicants 

who need a water quality certification. 

The final rule clarifies that if a proposed 

exemption project has the potential to 

discharge into waters of the United 

States, the applicant is required to file 

either a copy of the water quality 

certification or the certifying authority’s 

express waiver, a copy of the request for 

certification, or notification that the 

certifying authority failed to act. 

Exemption applicants do not need to 

create a new document or fill out a 

form, rather they are just submitting to 

the Commission a copy of the certifying 

authority’s response or informing the 

Commission that the certifying authority 

has failed to act within one year. Over 

the last ten years, the Commission 

received an average of less than two 

exemption applications per year. The 

directives to submit exemptions for 

certification or evidence of waiver of 

water quality certification are covered 

by and already included in, the existing 

OMB-approved information collection 

FERC–505 (Small Hydropower Projects 

and Conduit Facilities including 

License/Relicense, Exemption, and 

Qualifying Conduit Facility 

Determination; OMB Control No. 1902– 

0115). 

B. Environmental Analysis 

29. The Commission is required to 

prepare an Environmental Assessment 

or an Environmental Impact Statement 

for any action that may have a 

significant effect on the human 


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Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96529 

63Reguls. Implementing the Nat’l Env’t Pol’y Act 

of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 

1987), FERC Stats. & Regs. 30,782 (1987) (crossreferenced at 41 FERC ¶ 61,284). 

64 18 CFR 380.4(a)(2)(ii). 

65 5 U.S.C. 601–612. 

66 Id. 603(c). 

67 Id. 605(b). 

68 13 CFR 121.101. 

69 Id. 121.201, subsection 221. 

70 Id. 71 5 U.S.C. 804(2). 

environment.63 The Commission has 

categorically excluded certain actions 

from this requirement as not having a 

significant effect on the human 

environment, including the 

promulgation of rules that are clarifying, 

corrective, or procedural, or that do not 

substantially change the effect of 

legislation, or the regulations being 

amended.64 This final rule categorically 

establishes a reasonable period of time 

for a certifying authority to act on a 

water quality certification request for a 

license, exemption, amendment, or 

surrender application of a hydroelectric 

project pending with the Commission. 

The final rule also updates the term 

‘‘certifying agency’’ to ‘‘certifying 

authority,’’ incorporates the term 

‘‘express’’ waiver to reflect the four 

ways a certifying authority may act on 

a request for certification, and revises 

the requirements under part 7 to permit 

compliance with both EPA’s and the 

Commission’s regulations. Because this 

final rule is procedural in nature, 

preparation of an Environmental 

Assessment or an Environmental Impact 

Statement is not required. 

C. Regulatory Flexibility Act 

30. The Regulatory Flexibility Act of 

1980 (RFA) 65 generally requires a 

description and analysis of final rules 

that will have significant economic 

impact on a substantial number of small 

entities. The RFA mandates 

consideration of regulatory alternatives 

that accomplish the stated objectives of 

a final rule and minimize any 

significant economic impact on a 

substantial number of small entities.66

In lieu of preparing a regulatory 

flexibility analysis, an agency may 

certify that a final rule will not have a 

significant economic impact on a 

substantial number of small entities.67

The Small Business Administration’s 

(SBA) Office of Size Standards develops 

the numerical definition of a small 

business.68 The SBA size standard for 

hydroelectric power generation is based 

on the number of employees, including 

affiliates.69 Under SBA’s size standards, 

a hydroelectric power generator is small 

if, including its affiliates, it employs 750 

or fewer people.70

31. This final rule applies to a number 

of entities, some of which may be small 

businesses, with an application for a 

license, exemption, amendment, or 

surrender of a hydroelectric project 

pending with the Commission that 

requires a water quality certification 

under section 401(a)(1) of the CWA. 

However, the final rule will not have a 

significant economic impact on these 

entities, regardless of their status as a 

small entity or not, as the final rule (1) 

updates terminology and the timing of 

filing requirements to be consistent with 

EPA regulations; (2) clarifies what and 

when an exemption applicant must file 

if the proposed project triggers section 

401 of the CWA; (3) removes 

inconsistent language from parts 5 and 

7 of the Commission’s regulation; and 

(4) establishes a categorical one year 

period of time for a certifying authority 

to act on a request for a water quality 

certification for hydroelectric 

proceedings in which the proposed 

activity may result in a discharge into 

waters of the United States triggering 

section 401(a)(1) of the CWA. 

32. Accordingly, pursuant to section 

605(b) of the RFA, the Commission 

certifies that this final rule will not have 

a significant economic impact on a 

substantial number of small entities. 

D. Document Availability 

33. In addition to publishing the full 

text of this document in the Federal 

Register, the Commission provides all 

interested persons an opportunity to 

view and/or print the contents of this 

document via the internet through the 

Commission’s Home Page (http://

www.ferc.gov). 

34. From the Commission’s Home 

Page on the internet, this information is 

available on eLibrary. The full text of 

this document is available on eLibrary 

in PDF and Microsoft Word format for 

viewing, printing, and/or downloading. 

To access this document in eLibrary, 

type the docket number excluding the 

last three digits of this document in the 

docket number field. 

35. User assistance is available for 

eLibrary and the Commission’s website 

during normal business hours from the 

Commission’s Online Support at (202) 

502–6652 (toll free at 1–866–208–3676) 

or email at ferconlinesupport@ferc.gov, 

or the Public Reference Room at (202) 

502–8371, TTY (202) 502–8659. Email 

the Public Reference Room at 

public.referenceroom@ferc.gov. 

E. Effective Date and Congressional 

Notification 

36. Thes regulations are effective 

January 6, 2025. The Commission has 

determined, with the concurrence of the 

Administrator of the Office of 

Information and Regulatory Affairs of 

OMB, that this rule is not a major rule 

as defined in section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996.71 This rule is 

being submitted to the Senate, House, 

Government Accountability Office, and 

Small Business Administration. 

List of Subjects 

18 CFR Part 4 

Administrative practice and 

procedure, Electric power, Reporting 

and recordkeeping requirements. 

18 CFR Part 5 

Administrative practice and 

procedure, Electric power, Reporting 

and recordkeeping requirements. 

18 CFR Part 6 

Electric power, Reporting and 

recordkeeping requirements. 

18 CFR Part 7 

Administrative practice and 

procedure, Electric power, Reporting 

and recordkeeping requirements. 

By direction of the Commission. 

Issued: November 21, 2024. 

Debbie-Anne A. Reese, 

Secretary. 

In consideration of the foregoing, the 

Commission amends parts 4, 5, 6, and 

7 chapter I, Title 18, Code of Federal 

Regulations, as follows: 

PART 4—LICENSES, PERMITS, 

EXEMPTIONS, AND DETERMINATION 

OF PROJECT COSTS 

■ 1. The authority citation for part 4 

continues to read as follows: 

Authority: 16 U.S.C. 791a–825; 42 U.S.C. 

7101–7352. 

■ 2. Revise § 4.34(b)(5) to read as 

follows: 

§ 4.34 Hearing on application; consultation 

on terms and conditions; motions to 

intervene; alternative procedures. 

* * * * * 

(b) * * * 

(5)(i) With regard to certification 

requirements under section 401(a)(1) of 

the Federal Water Pollution Control Act 

(Clean Water Act) for an application for 

a license or exemption from licensing, 

an applicant shall file within 60 days 

from the date of issuance of the notice 

of ready for environmental analysis: 

(A) A copy of the water quality 

certification or the certifying authority’s 

express waiver; 


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96530 Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 

(B) A copy of the request for 

certification, including proof of the date 

on which the certifying authority 

received the request; or 

(C) Evidence of waiver of water 

quality certification as described in 

paragraph (b)(5)(iii) of this section. 

(ii) In the case of an application 

process using the alternative procedures 

of paragraph 4.34(i), the filing 

requirement of paragraph (b)(5)(i) shall 

apply upon issuance of notice the 

Commission has accepted the 

application as provided for in paragraph 

4.32(d) of this part. 

(iii) A certifying authority is deemed 

to have waived the certification 

requirements of section 401(a)(1) of the 

Clean Water Act if the certifying 

authority has not denied, expressly 

waived, or granted certification by one 

year after the date the certifying 

authority received a written request for 

certification. If a certifying authority 

denies certification, the applicant must 

file a copy of the denial within 30 days 

after the applicant received it. 

* * * * * 

■ 3. Amend § 4.201 by adding paragraph 

(e) to read as follows: 

§ 4.201 Contents of application. 

* * * * * 

(e) For any amendment that requires 

certification under section 401(a)(1) of 

the Federal Water Pollution Control Act 

(Clean Water Act), a certifying authority 

is deemed to have waived the 

certification requirements of section 

401(a)(1) of the Clean Water Act if the 

certifying authority has not denied, 

expressly waived, or granted 

certification by one year after the date 

the certifying authority received a 

written request for certification. 

PART 5—INTEGRATED LICENSE 

APPLICATION PROCESS 

■ 4. The authority citation for part 5 

continues to read as follows: 

Authority: 16 U.S.C. 792–828c, 2601–2645; 

42 U.S.C. 7101–7352. 

■ 5. Revise § 5.23(b) to read as follows: 

* * * * * 

(b) Water quality certification. (1) 

With regard to certification 

requirements under section 401(a)(1) of 

the Federal Water Pollution Control Act 

(Clean Water Act), the license applicant 

shall file within 60 days from the date 

of issuance of the notice of ready for 

environmental analysis: 

(i) A copy of the water quality 

certification or the certifying authority’s 

express waiver; 

(ii) A copy of the request for 

certification, including proof of the date 

on which the certifying authority 

received the request; or 

(iii) Evidence of waiver of water 

quality certification as described in 

paragraph (b)(2) of this section. 

(2) A certifying authority is deemed to 

have waived the certification 

requirements of section 401(a)(1) of the 

Clean Water Act if the certifying 

authority has not denied, expressly 

waived, or granted certification by one 

year after the date the certifying 

authority received a written request for 

certification. If a certifying authority 

denies certification, the applicant must 

file a copy of the denial within 30 days 

after the applicant received it. 

PART 6—SURRENDER OR 

TERMINATION OF LICENSE 

■ 6. The authority citation for part 6 

continues to read as follows: 

Authority: 16 U.S.C. 799, 803(i), 806, 825h; 

44 U.S.C. 3501 et seq. 

■ 7. Revise § 6.1 to read as follows: 

§ 6.1 Application for surrender. 

(a) Every application for surrender of 

a license shall state the reason therefor; 

and, except in the case of an application 

for surrender of a license for a minor 

project, or for a transmission line only, 

shall be executed by the licensee and 

filed in the same form and manner as 

the application for license, and shall be 

accompanied by the license and all 

amendments thereof. Public notice of 

such application shall be given at least 

30 days prior to action upon the 

application. 

(b) For any surrender that requires 

certification under section 401(a)(1) of 

the Federal Water Pollution Control Act 

(Clean Water Act), a certifying authority 

is deemed to have waived the 

certification requirements of section 

401(a)(1) of the Clean Water Act if the 

certifying authority has not denied, 

expressly waived, or granted 

certification by one year after the date 

the certifying authority received a 

written request for certification. 

PART 7—EXPEDITED LICENSING 

PROCESS FOR QUALIFYING NONFEDERAL HYDROPOWER PROJECTS 

AT EXISTING NONPOWERED DAMS 

AND FOR CLOSED-LOOP PUMPED 

STORAGE PROJECTS 

■ 8. The authority citation for part 7 

continues to read as follows: 

Authority: 16 U.S.C. 791a–825r. 

■ 9. Revise § 7.2 to read as follows: 

§ 7.2 Use of expedited licensing process. 

(a) In order to pursue the expedited 

licensing process, an applicant must 

request authorization for the expedited 

process, as provided for in paragraph (b) 

of this section. The licensing procedures 

in this part do not apply to an 

application for a new or subsequent 

license. 

(b) An application that accompanies a 

request for authorization to use the 

expedited licensing process must 

include the information specified 

below. 

(1) Section 34 of the Federal Power 

Act qualification—projects at 

nonpowered dams. The application 

must demonstrate that the proposed 

facility meets the following 

qualifications pursuant to section 34(e) 

of the Federal Power Act: 

(i) As of October 23, 2018, the 

proposed hydropower facility was not 

licensed under or exempted from the 

license requirements contained in Part I 

of the Federal Power Act; 

(ii) The facility will be associated 

with a qualifying nonpowered dam; 

(iii) The facility will be constructed, 

operated, and maintained for the 

generation of electric power; 

(iv) The facility will use for such 

generation any withdrawals, diversions, 

releases, or flows from the associated 

qualifying nonpowered dam, including 

its associated impoundment or other 

infrastructure; and 

(v) The operation of the facility will 

not result in any material change to the 

storage, release, or flow operations of 

the associated qualifying nonpowered 

dam. 

(2) Section 35 of the Federal Power 

Act qualification—closed-loop pumped 

storage projects. The application must 

demonstrate that the proposed closedloop pumped storage project meets the 

following qualifications pursuant to 

section 35(g)(2) of the Federal Power 

Act: 

(i) The project will cause little to no 

change to existing surface and 

groundwater flows and uses; and 

(ii) The project is unlikely to 

adversely affect species listed as a 

threatened species or endangered 

species, or designated critical habitat of 

such species, under the Endangered 

Species Act of 1973. 

(3) Section 401 of the Clean Water 

Act. The license applicant shall file 

within 60 days from the filing date of 

application. (i) A copy of a request for 

certification under section 401(a)(1) of 

the Clean Water Act, including proof of 

the date on which the certifying 

authority received the request; or 

(ii) A copy of water quality 

certification or the certifying authority’s 

express waiver. 

(4) Evidence of waiver of water quality 

certification. A certifying authority is 


khammond on DSK9W7S144PROD with RULES
Federal Register / Vol. 89, No. 234 / Thursday, December 5, 2024 / Rules and Regulations 96531 

1See 5 U.S.C. 552a(a)(5). 

deemed to have waived the certification 

requirements of section 401(a)(1) of the 

Clean Water Act if the certifying 

authority has not denied, expressly 

waived, or granted certification by one 

year after the date the certifying 

authority received a written request for 

certification. If a certifying authority 

denies certification, the applicant must 

file a copy of the denial within 30 days 

after the applicant receives it. 

(5) Endangered Species Act (ESA). 

The application must include: 

(i) A no-effect determination that 

includes documentation that no listed 

species or critical habitat are present in 

the action area; 

(ii) Documentation of concurrence 

from the U.S. Fish and Wildlife Service 

and the National Marine Fisheries 

Service (Service(s)), as necessary, that 

the action is not likely to adversely 

affect ESA-listed species or critical 

habitat; or 

(iii) A draft Biological Assessment 

that includes documentation of 

consultation with the Service(s). 

(6) Section 106 of the National 

Historic Preservation Act. 

Documentation that section 106 

consultation has been initiated with the 

state historic preservation officer(s) and 

any Indian Tribes identified as having 

an interest in the project. 

(7) Dam owner documentation. For 

projects to be located at existing 

nonpowered dams: 

(i) Documentation of consultation 

with any nonfederal owner of the 

nonpowered dam if the applicant is not 

the owner and confirmation that the 

owner is not opposed to a hydropower 

development at the location; or 

(ii) Documentation from the federal 

entity that non-federal hydropower 

development is not precluded at the 

proposed location and confirmation that 

the federal entity is not opposed to a 

hydropower development at the 

location. 

(8) Public parks, recreation areas, and 

wildlife refuges. If the project would use 

any public park, recreation area, or 

wildlife refuge established under state 

or local law, documentation from the 

managing entity indicating it is not 

opposed to the site’s use for hydropower 

development. 

(c) Before it files any application for 

an original license for a qualifying nonfederal hydropower project at an 

existing nonpowered dam or for a 

closed-loop pumped storage project 

pursuant to sections 34 and 35 of the 

Federal Power Act, a potential applicant 

must consult with the relevant Federal, 

State, and interstate resource agencies, 

including the National Marine Fisheries 

Service, the United States Fish and 

Wildlife Service, the National Park 

Service, the United States 

Environmental Protection Agency, the 

Federal agency administering any 

federal lands or facilities utilized or 

occupied by the project, the appropriate 

State fish and wildlife agencies, the 

appropriate State water resource 

management agencies, the certifying 

authority under section 401(a)(1) of the 

Federal Water Pollution Control Act 

(Clean Water Act), 33 U.S.C. 1341(c)(1), 

the agency that administers the Coastal 

Zone Management Act, 16 U.S.C. 1451– 

1465, any Indian Tribe that may be 

affected by the proposed project, and 

members of the public. 

(d) The Director of the Office of 

Energy Projects will, upon request, 

provide a list of known appropriate 

Federal, state, and interstate resource 

agencies, and Indian tribes, and local, 

regional, or national non-governmental 

organizations likely to be interested in 

any license application proceeding. 

■ 10. Revise § 7.7(a) to read as follows: 

§ 7.7 Amendment of application. 

(a) Any proposed amendments to the 

pending license application after 

issuance of the notice of acceptance and 

ready for environmental analysis under 

this section must include updates to all 

material submitted under § 7.2(c). 

* * * * * 

[FR Doc. 2024–27981 Filed 12–4–24; 8:45 am] 

BILLING CODE 6717–01–P 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Part 4902 

RIN 1212–AB59 

Privacy Act Regulation; Exemption for 

Legal Case Management Records 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Final rule. 

SUMMARY: This final rule amends 

Pension Benefit Guaranty Corporation’s 

Privacy Act regulation to exempt a 

system of records that supports law 

enforcement investigations through 

legal case management. 

DATES: This rule is effective January 6, 

2025. 

FOR FURTHER INFORMATION CONTACT: 

Karen Levin (levin.karen@pbgc.gov), 

Attorney, Regulatory Affairs Division 

(reg.comments@pbgc.gov), Office of the 

General Counsel, at 202–229–3559, or 

Shawn Hartley (hartley.shawn@

pbgc.gov), Chief Privacy Officer, Office 

of the General Counsel, at 202–229– 

6321. If you are deaf or hard of hearing, 

or have a speech disability, please dial 

7–1–1 to access telecommunications 

relay services. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

This final rule amends the Pension 

Benefit Guaranty Corporation’s (PBGC’s) 

regulation on Disclosure and 

Amendment of Records Pertaining to 

Individuals under the Privacy Act (29 

CFR part 4902) to exempt from 

disclosure information contained in a 

system of records for PBGC’s Office of 

Negotiations and Restructuring/Office of 

General Counsel Case Management 

System. The exemption is needed 

because records in this system include 

investigatory material compiled for 

administrative, civil, and criminal law 

enforcement purposes. 

PBGC’s legal authority for this 

rulemaking is provided by section 

4002(b)(3) of the Employee Retirement 

Income Security Act of 1974 (ERISA) 

and 5 U.S.C. 552a(k)(2). 

Background 

PBGC administers two insurance 

programs for private-sector defined 

benefit pension plans under title IV of 

the Employee Retirement Income 

Security Act of 1974 (ERISA): a singleemployer plan termination insurance 

program and a multiemployer plan 

insolvency insurance program. In 

addition, PBGC administers a special 

financial assistance program for certain 

financially distressed multiemployer 

plans. 

As a Federal agency, PBGC is subject 

to the Privacy Act of 1974, 5 U.S.C. 552a 

(Privacy Act), in its collection, 

maintenance, use, and dissemination of 

any personally identifiable information 

that it maintains in a ‘‘system of 

records.’’ A system of records is defined 

under the Privacy Act as ‘‘a group of any 

records under the control of any agency 

from which information is retrieved by 

the name of the individual or by some 

identifying number, symbol, or other 

identifying particular assigned to the 

individual.’’ 1

PBGC previously established a system 

of records, ‘‘PBGC–19, Office of 

Negotiations and Restructuring/Office of 

General Counsel Case Management 

System.’’ This system of records was 

last published in the ‘‘Notice’’ section of 

the Federal Register on September 9, 

2024, at 89 FR 73196. 

This system collects and maintains 

personally identifiable information 

obtained by the Office of General 

Counsel in matters involving 


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