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[Federal Register Volume 89, Number 234 (Thursday, December 5, 2024)]
[Rules and Regulations]
[Pages 96524-96531]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-27981]

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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.

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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, [email protected]
Miranda Millerick (Legal Information), Office of the General Counsel, 
Federal Energy Regulatory Commission, 888 First Street NE, Washington, 
DC 20426, (202) 502-8781, [email protected]
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                      11
     Under Parts 4 and 5.............................
    E. Timing of Section 401 Filing Requirements                      13
     Under Part 7....................................
    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

[[Page 96525]]

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\
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    \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.
    \2\ 33 U.S.C. 1341(a)(1).
    \3\ Id.
    \4\ Id.
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    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.
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    \5\ Exec. 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).
    \7\ The rule was published in the Federal Register on September 
27, 2023, and became effective 60 days after publication on November 
27, 2023.
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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-by-case 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\
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    \8\ 88 FR 66663.
    \9\ Id. at 66588.
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    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.
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    \10\ Waiver 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) (cross-
referenced 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.
    \11\ 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); 18 CFR 5.23(b)(2). Part 5 governs applicants using 
the integrated licensing process.
    \12\ Hydroelectric 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).
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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\
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    \14\ Exemption 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) (cross-referenced 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.
    \15\ The Commission's prior statement in a preamble does not 
supersede the statutory mandate under Section 401(a) of the CWA.
    \16\ Order No. 464, FERC Stats. & Regs. ] 30,730 at 30,546.
    \17\ See, 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).
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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

[[Page 96526]]

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\
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    \18\ Establishment 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).
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    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.
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    \19\ 89 FR 48351.
    \20\ The 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.
    \21\ Hydro 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.
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    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.
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    \22\ NHA 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.
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III. Discussion

A. Reasonable Period of Time

    9. The NOPR explained that the Commission continues to believe that 
the benefits of setting a categorical one-year 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\
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    \23\ NOPR, 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.
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    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\
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    \25\ Id.
    \26\ Id. P 8.
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    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 one-year 
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\
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    \27\ Maryland 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.
    \29\ Oregon DEQ Comments at 1; NHA Comments at 2.
    \30\ Hydro Coalition Comments at 4.
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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.
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    \31\ NOPR, 187 FERC ] 61,094 at P 9.
    \32\ Id.
    \33\ See Oregon DEQ Comments at 1; Idaho DEQ Comments at 1; 
Hydro Coalition Comments at 5.
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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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    \34\ NOPR, 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.
    \35\ NOPR, 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).
    \36\ See Idaho DEQ Comments at 1.

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[[Page 96527]]

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\
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    \37\ Id. at 2.
    \38\ Id.
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    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\
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    \39\ Hydro 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.
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    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\
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    \41\ See 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).
    \42\ See 18 CFR 4.34(b)(5)(i)(B) & 5.23(b)(1)(ii).
    \43\ See 40 CFR 121.4.
    \44\ Further, 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.
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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.
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    \45\ The 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 
closed-loop pumped storage projects. 18 CFR 7.1(a).
    \46\ 18 CFR 7.2(3); see also NOPR, 187 FERC ] 61,094 at P 11.
    \47\ NOPR, 187 FERC ] 61,094 at P 11 (citing 40 CFR 
121.5(a)(1)(i)).
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    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\
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    \48\ Idaho DEQ Comments at 2.
    \49\ Hydro Coalition Comments at 11.
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    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\
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    \50\ 18 CFR 7.1 (detailing the expedited licensing process for 
original licenses for qualifying non-federal hydropower projects at 
existing nonpowered dams and for closed-loop pumped storage projects 
under FPA sections 34 and 35).
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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\

[[Page 96528]]

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 water-quality-related laws, which would 
trigger a new one-year reasonable period of time.\54\
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    \51\ Oregon 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 Sec.  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 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).'').
    \53\ Oregon DEQ Comments at 2.
    \54\ Id. at 3.
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    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\
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    \55\ Hydro Coalition Comments at 9 & 12.
    \56\ Id. at 5-6 & 10-11.
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    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\
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    \57\ Oregon 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).
    \58\ The 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)).
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    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\
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    \59\ See, 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)).
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    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.
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    \60\ Hydro Coalition Comments at 9-11.
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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.
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    \61\ 44 U.S.C. 3501-3521.
    \62\ See 5 CFR 1320.12.
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    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

[[Page 96529]]

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.
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    \63\ Reguls. 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) (cross-referenced at 41 FERC ] 61,284).
    \64\ 18 CFR 380.4(a)(2)(ii).
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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\
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    \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.
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    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 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

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.
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    \71\ 5 U.S.C. 804(2).
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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

0
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.

0
2. Revise Sec.  4.34(b)(5) to read as follows:

Sec.  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;

[[Page 96530]]

    (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.
* * * * *

0
3. Amend Sec.  4.201 by adding paragraph (e) to read as follows:

Sec.  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

0
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.

0
5. Revise Sec.  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

0
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.

0
7. Revise Sec.  6.1 to read as follows:

Sec.  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 NON-FEDERAL 
HYDROPOWER PROJECTS AT EXISTING NONPOWERED DAMS AND FOR CLOSED-LOOP 
PUMPED STORAGE PROJECTS

0
8. The authority citation for part 7 continues to read as follows:

    Authority: 16 U.S.C. 791a-825r.

0
9. Revise Sec.  7.2 to read as follows:

Sec.  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 closed-loop 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

[[Page 96531]]

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 non-federal 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.

0
10. Revise Sec.  7.7(a) to read as follows:

Sec.  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 Sec.  7.2(c).
* * * * *
[FR Doc. 2024-27981 Filed 12-4-24; 8:45 am]
BILLING CODE 6717-01-P
```