Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Proposed Rules 29541 

[FR Doc. 2021–11498 Filed 6–1–21; 8:45 a.m.] 

BILLING CODE 6750–01–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 121 

[EPA–HQ–OW–2021–0302; FRL–10023–97– 

OW] 

Notice of Intention To Reconsider and 

Revise the Clean Water Act Section 

401 Certification Rule 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Notice of intent. 

SUMMARY: In accordance with Protecting 

Public Health and the Environment and 

Restoring Science to Tackle the Climate 

Crisis (Executive Order 13990), the U.S. 

Environmental Protection Agency (EPA) 

announces its intention to reconsider 

and revise the Clean Water Act Section 

401 Certification Rule. In addition, EPA 

will initiate a series of stakeholder 

outreach sessions and invite written 

feedback on how to revise the 

requirements for water quality 

certifications under the Clean Water 

Act. EPA intends to revise the Clean 

Water Act Section 401 Certification Rule 

in a manner that is well informed by 

stakeholder input on the rule’s 

substantive and procedural components; 

is better aligned with the cooperative 

federalism principles that have been 

central to the effective implementation 

of the Clean Water Act; and is 

responsive to the national objectives 

outlined in President Biden’s Executive 

Order 13990. 

DATES: Written feedback must be 

received on or before August 2, 2021. 

ADDRESSES: You may send written 

feedback, identified by Docket ID No. 

EPA–HQ–OW–2021–0302, by any of the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov/ (our 

preferred method). Follow the online 

instructions for submitting written 

feedback. 

• Email: OW-Docket@epa.gov. 

Include Docket ID No. EPA–HQ–OW– 

2021–0302 in the subject line of the 

message. 

Instructions: All submissions received 

must include the Docket ID Number. 

Written feedback received may be 

posted without change to https://

www.regulations.gov/, including any 

personal information provided. Out of 

an abundance of caution for members of 

the public and our staff, the EPA Docket 

Center and Reading Room are closed to 

the public, with limited exceptions, to 

reduce the risk of transmitting COVID– 

19. Our Docket Center staff will 

continue to provide remote customer 

service via email, phone, and webform. 


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29542 Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Proposed Rules 

1The CWA defines ‘‘state’’ as ‘‘a State, the District 

of Columbia, the Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, the 

Commonwealth of the Northern Mariana Islands, 

and the Trust Territory of the Pacific Islands.’’ 33 

U.S.C. 1362(3). 

2Tribes refers to tribes that have been approved 

for ‘‘treatment in a manner similar to a State’’ status 

for CWA Section 401. See 33 U.S.C. 1377(e). 

3 36 FR 22487, November 25, 1971, redesignated 

at 37 FR 21441, October 11, 1972, further 

redesignated at 44 FR 32899, June 7, 1979. 

We encourage the public to submit 

written feedback via https://

www.regulations.gov/ or email, as there 

may be a delay in processing mail and 

faxes. Hand deliveries and couriers may 

be received by scheduled appointment 

only. For further information on EPA 

Docket Center services and the current 

status, please visit us online at https:// 

www.epa.gov/dockets. 

FOR FURTHER INFORMATION CONTACT: 

Lauren Kasparek, Oceans, Wetlands and 

Communities Division, Office of Water 

(4502–T), U.S. Environmental 

Protection Agency, 1200 Pennsylvania 

Avenue NW, Washington, DC 20460; 

telephone number: (202) 564–3351; 

email address: cwa401@epa.gov. 

SUPPLEMENTARY INFORMATION: Clean 

Water Act (CWA) Section 401 provides 

states 1 and tribes 2 with a powerful tool 

to protect the quality of their waters 

from adverse impacts resulting from 

federally licensed or permitted projects. 

Under CWA Section 401, a federal 

agency may not issue a license or permit 

to conduct any activity that may result 

in any discharge into navigable waters, 

unless the state or tribe where the 

discharge would originate either issues 

a CWA Section 401 water quality 

certification finding ‘‘that any such 

discharge will comply with the 

applicable provisions of Sections 301, 

302, 303, 306, and 307’’ of the CWA, or 

certification is waived. 33 U.S.C. 

1341(a)(1). When granting a CWA 

Section 401 certification, states and 

tribes are directed by CWA Section 

401(d) to include conditions, including 

‘‘effluent limitations and other 

limitations, and monitoring 

requirements’’ that are necessary to 

assure that the applicant for a federal 

license or permit will comply with 

applicable provisions of CWA Sections 

301, 302, 306, and 307, and with ‘‘any 

other appropriate requirement of State 

law.’’ Id. at 1341(d). 

EPA promulgated implementing 

regulations for water quality 

certification (1971 regulation) 3 prior to 

the 1972 amendments to the Federal 

Water Pollution Control Act (commonly 

known as the Clean Water Act or CWA), 

which created Section 401. In 2020, 

EPA revised these regulations found at 

40 CFR part 121. Clean Water Act 

Section 401 Certification Rule (‘‘401 

Certification Rule’’), 85 FR 42210 (July 

13, 2020). 

On January 20, 2021, President Biden 

signed Executive Order 13990 directing 

federal agencies to review rules issued 

in the prior four years that are, or may 

be, inconsistent with the policy stated 

in the order. Protecting Public Health 

and the Environment and Restoring 

Science to Tackle the Climate Crisis, 

Executive Order 13990, 86 FR 7037 

(published January 25, 2021, signed 

January 20, 2021). The order provides 

that ‘‘[i]t is, therefore, the policy of my 

Administration to listen to the science; 

to improve public health and protect 

our environment; to ensure access to 

clean air and water; to limit exposure to 

dangerous chemicals and pesticides; to 

hold polluters accountable, including 

those who disproportionately harm 

communities of color and low-income 

communities; to reduce greenhouse gas 

emissions; to bolster resilience to the 

impacts of climate change; to restore 

and expand our national treasures and 

monuments; and to prioritize both 

environmental justice and the creation 

of the well-paying union jobs necessary 

to deliver on these goals.’’ Id. at 7037, 

Section 1. The order ‘‘directs all 

executive departments and agencies 

(agencies) to immediately review and, as 

appropriate and consistent with 

applicable law, take action to address 

the promulgation of Federal regulations 

and other actions during the last 4 years 

that conflict with these important 

national objectives, and to immediately 

commence work to confront the climate 

crisis.’’ Id. ‘‘For any such actions 

identified by the agencies, the heads of 

agencies shall, as appropriate and 

consistent with applicable law, consider 

suspending, revising, or rescinding the 

agency actions.’’ Id. at 7037, Section 

2(a). The 401 Certification Rule was 

identified for review under the 

Executive Order. See Fact Sheet: List of 

Agency Actions for Review, available at 

https://www.whitehouse.gov/briefingroom/statements-releases/2021/01/20/ 

fact-sheet-list-of-agency-actions-forreview/ (last visited on April 26, 2021). 

EPA has completed its initial review 

of the 401 Certification Rule and 

determined that it will propose 

revisions to the rule through a new 

rulemaking effort. The agency has 

considered the following factors in 

making this determination, including 

but not limited to: The text of CWA 

Section 401; Congressional intent and 

the cooperative federalism framework of 

CWA Section 401; concerns raised by 

stakeholders about the 401 Certification 

Rule, including implementation related 

feedback; the principles outlined in the 

Executive Order; and issues raised in 

ongoing litigation challenges to the 401 

Certification Rule. As described below, 

the agency has identified substantial 

concerns with a number of provisions of 

the 401 Certification Rule that relate to 

cooperative federalism principles and 

CWA Section 401’s goal of ensuring that 

states are empowered to protect their 

water quality. 

Agencies have inherent authority to 

reconsider past decisions and to revise, 

replace, or repeal a decision to the 

extent permitted by law and supported 

by a reasoned explanation. FCC v. Fox 

Television Stations, Inc., 556 U.S. 502, 

515 (2009) (‘‘Fox’’); Motor Vehicle 

Manufacturers Ass’n of the United 

States, Inc. v. State Farm Mutual 

Automobile Insurance Co., 463 U.S. 29, 

42 (1983) (‘‘State Farm’’). Importantly, 

such a revised decision need not be 

based upon a change of facts or 

circumstances. A revised decision based 

‘‘on a reevaluation of which policy 

would be better in light of the facts’’ is 

‘‘well within an agency’s discretion’’ 

National Ass’n of Home Builders v. 

EPA, 682 F.3d 1032, 1038 (D.C. Cir. 

2012) (citing Fox, 556 U.S. at 514–15). 

EPA does not intend to replace the 

401 Certification Rule with the 1971 

regulation. Instead, EPA plans to 

reconsider and revise the 401 

Certification Rule consistent with the 

principles outlined in the Executive 

Order and the agency’s legal authority. 

Additionally, EPA seeks to revise the 

rule in a manner that promotes 

efficiency and certainty in the 

certification process, that is wellinformed by stakeholder input on the 

401 Certification Rule’s substantive and 

procedural components, and that is 

consistent with the cooperative 

federalism principles central to CWA 

Section 401. 

Questions for Consideration 

The issues EPA intends to reconsider 

include, but are not limited to, whether 

the rule appropriately considers 

cooperative federalism principles 

central to CWA Section 401. EPA has 

substantial concerns about whether 

portions of the rule impinge on those 

principles. EPA also intends to 

reconsider whether certain procedural 

components of the rule improve, or 

impede, the certification and licensing/ 

permitting processes. To assist in its 

development of a proposed revision, 

EPA is considering specific provisions 

of the rule for potential revision. EPA 

welcomes feedback related to key issues 

identified during implementation of the 

401 Certification Rule, including but not 

limited to, the following: 


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Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Proposed Rules 29543 

1. Pre-filing meeting requests. The 

rule requires project proponents to 

submit a ‘‘pre-filing meeting request’’ to 

certifying authorities at least 30 days 

prior to submitting a certification 

request. 40 CFR 121.4. EPA is interested 

in the utility of the pre-filing meeting 

process to date, including but not 

limited to, whether the pre-filing 

meetings have improved or increased 

early stakeholder engagement, whether 

the minimum 30 day timeframe should 

be shortened in certain instances (e.g., 

where a certifying authority declines to 

hold a pre-filing meeting), and how 

certifying authorities have approached 

pre-filing meeting requests and meetings 

to date. 

2. Certification request. The rule 

defines a certification request as ‘‘a 

written, signed, and dated 

communication that satisfies the 

requirements of [section] 121.5(b) or 

(c).’’ Id. at 121.1(c). Among other issues, 

EPA is concerned that the rule 

constrains what states and tribes can 

require in certification requests, 

potentially limiting state and tribal 

ability to get information they may need 

before the CWA Section 401 review 

process begins. EPA is interested in 

stakeholder input on this definition and 

the elements of a certification request 

contained at 40 CFR 121.5, including 

but not limited to, the sufficiency of the 

elements described in 40 CFR 121.5(b) 

and (c), and whether stakeholders have 

experienced any process improvements 

or deficiencies by having a single 

defined list of required certification 

request components applicable to all 

certification actions. 

3. Reasonable period of time. CWA 

Section 401 requires a certifying 

authority to act on a certification request 

within a defined time period known as 

the ‘‘reasonable period of time.’’ The 

rule requires the federal licensing or 

permitting agency to determine the 

reasonable period of time using a series 

of factors, provided that the time does 

not exceed one year from the date a 

certifying authority receives a 

certification request. Id. at 121.6. 

Additionally, the rule allows federal 

agencies to extend the reasonable period 

of time within that one year time period 

at a certifying authority or project 

proponent’s request, but does not allow 

certifying authorities to take any other 

action to extend or modify the 

reasonable period of time. Id. Among 

other issues, EPA is concerned that the 

rule does not allow state and tribal 

authorities a sufficient role in setting the 

timeline for reviewing certification 

requests and limits the factors that 

federal agencies may use to determine 

the reasonable period of time. EPA is 

seeking stakeholder input on the 

process for determining and modifying 

the reasonable period of time, including 

but not limited to, whether additional 

factors should be considered by federal 

agencies when setting the reasonable 

period of time, whether other 

stakeholders besides federal agencies 

have a role in defining and extending 

the reasonable period of time, and any 

implementation challenges or 

improvements identified through 

application of the rule’s requirements 

for the reasonable period of time. 

4. Scope of certification. The rule 

limits the scope of certification, which 

includes both the scope of certification 

review under CWA Section 401(a) and 

the scope of certification conditions 

under CWA Section 401(d), to ‘‘assuring 

that a discharge from a Federally 

licensed or permitted activity will 

comply with water quality 

requirements.’’ Id. at 121.3. The rule 

defines ‘‘water quality requirements,’’ as 

the ‘‘applicable provisions of [sections] 

301, 302, 303, 306, and 307 of the Clean 

Water Act, and state or tribal regulatory 

requirements for point source 

discharges into waters of the United 

States.’’ Id. at 121.1(n). Among other 

issues, EPA is concerned that the rule’s 

narrow scope of certification and 

conditions may prevent state and tribal 

authorities from adequately protecting 

their water quality. EPA is seeking 

stakeholder input on the rule’s 

interpretation of the scope of 

certification and certification 

conditions, and the definition of ‘‘water 

quality requirements’’ as it relates to the 

statutory phrase ‘‘other appropriate 

requirements of state law,’’ including 

but not limited to, whether the agency 

should revise its interpretation of scope 

to include potential impacts to water 

quality not only from the ‘‘discharge’’ 

but also from the ‘‘activity as a whole’’ 

consistent with Supreme Court case 

law, whether the agency should revise 

its interpretation of ‘‘other appropriate 

requirements of State law,’’ and whether 

the agency should revise its 

interpretation of scope of certification 

based on implementation challenges or 

improvements identified through the 

application of the newly defined scope 

of certification. 

5. Certification actions and federal 

agency review. The rule provides that 

certifying authorities may take one of 

four actions on a certification request, 

including granting certification, granting 

certification with conditions, denying 

certification, or waiving certification. 

See id. at 121.7, 121.9. The rule requires 

that certifying authorities include 

specific information when granting 

certification, granting certification with 

conditions or denying certification. Id. 

at 121.7(c)–(e). Additionally, the rule 

requires federal agencies to review 

certifying authority actions to determine 

whether they comply with the 

procedural requirements of CWA 

Section 401 and the 401 Certification 

Rule. Id. at 121.9. Among other issues, 

EPA is concerned that a federal agency’s 

review may result in a state or tribe’s 

certification or conditions being 

permanently waived as a result of 

nonsubstantive and easily fixed 

procedural concerns identified by the 

federal agency. EPA is seeking 

stakeholder input on the certification 

action process steps, including but not 

limited to, whether there is any utility 

in requiring specific components and 

information for certifications with 

conditions and denials, whether it is 

appropriate for federal agencies to 

review certifying authority actions for 

consistency with procedural 

requirements or any other purpose, and 

if so, whether there should be greater 

certifying authority engagement in the 

federal agency review process including 

an opportunity to respond to and cure 

any deficiencies, whether federal 

agencies should be able to deem a 

certification or conditions as ‘‘waived,’’ 

and whether, and under what 

circumstances, federal agencies may 

reject state conditions. 

6. Enforcement. The rule provides 

that federal agencies are responsible for 

enforcing certification conditions that 

are incorporated into a federal license or 

permit. Id. at 121.11(c). The rule does 

not provide a role for certifying 

authorities to enforce certification 

conditions under federal law. 

Additionally, the rule restates the 

statutory provision that provides 

certifying authorities with the ability to 

inspect certified projects prior to their 

initial operation. Id. at 121.11(a). EPA is 

interested in stakeholder feedback on 

enforcement of CWA Section 401, 

including but not limited to, the roles of 

federal agencies and certifying 

authorities in enforcing certification 

conditions, whether the statutory 

language in CWA Section 401 supports 

certifying authority enforcement of 

certification conditions under federal 

law, whether the CWA citizen suit 

provision applies to Section 401, and 

the rule’s interpretation of a certifying 

authority’s inspection opportunities. 

7. Modifications. The rule removed 

the 1971 regulation’s provision that 

allowed for modifications where agreed 

upon by the certifying authority, federal 

agency, and EPA. See 85 FR 42220 (July 

13, 2020). Additionally, the rule 

prevents certifying authorities from 

extending the reasonable period time 


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29544 Federal Register / Vol. 86, No. 104 / Wednesday, June 2, 2021 / Proposed Rules 

unilaterally, including but not limited 

to, the use of conditions intended to 

reopen a certification (‘‘reopeners’’). 

Among other issues, EPA is concerned 

that the rule’s prohibition of 

modifications may limit the flexibility 

of certifications and permits to adapt to 

changing circumstances. EPA is 

interested in stakeholder feedback on 

modifications and ‘‘reopeners,’’ 

including but not limited to, whether 

the statutory language in CWA Section 

401 supports modification of 

certifications or ‘‘reopeners,’’ the utility 

of modifications (e.g., specific 

circumstances that may warrant 

modifications or ‘‘reopeners’’), and 

whether there are alternate solutions to 

the issues that could be addressed by 

certification modifications or 

‘‘reopeners’’ that can be accomplished 

through the federal licensing or 

permitting process. 

8. Neighboring jurisdictions. The rule 

addresses the so-called ‘‘neighboring 

jurisdiction’’ process in CWA Section 

401(a)(2), including interpreting the 

timeframe in which a federal agency 

must notify EPA for purposes of Section 

401(a)(2) and providing process 

requirements for the agency’s analysis 

and the neighboring jurisdictions’ 

review and response. EPA is interested 

in stakeholder feedback on the 

neighboring jurisdiction process, 

including but not limited to, whether 

the agency should elaborate in 

regulatory text or preamble on 

considerations informing its analysis 

under CWA Section 401(a)(2), whether 

the agency’s decision whether to make 

a determination under CWA Section 

401(a)(2) is wholly discretionary, and 

whether the agency should provide 

further guidance on the Section 

401(a)(2) process that occurs after EPA 

makes a ‘‘may affect’’ determination. 

9. Data and other information. EPA is 

interested in receiving any data or 

information from stakeholders about the 

application of the 401 Certification 

Rule, including but not limited to, 

impacts of the rule on processing 

certification requests, impacts of the 

rule on certification decisions, and 

whether any major projects are 

anticipated in the next few years that 

could benefit from or be encumbered by 

the 401 Certification Rule’s proceedural 

requirements. Additionally, EPA is 

interested in stakeholder feedback about 

existing state CWA Section 401 

procedures, including whether the 

agency should consider the extent to 

which any revised rule might conflict 

with existing state CWA Section 401 

procedures and place a burden on those 

states to revise rules in the future. 

10. Implementation coordination. 

EPA is interested in hearing from 

stakeholders about facilitiating 

implementation of any rule revisions. 

For example, given the relationship 

between federal provisions and state 

processes for water quality certification, 

should EPA consider specific 

implementation timeframes or effective 

dates to allow for adoption and 

integration of water quality provisions 

at the state level. Similarly, EPA is 

interested in receiving feedback on 

whether concomitant regulatory changes 

should be proposed and finalized 

simultaneously by relevant federal 

agencies (e.g., the Army Corps of 

Engineers, Federal Energy Regulatory 

Commission) so that implementation of 

revised water certification provisions 

would be more effectively coordinated 

and would avoid circumstances where 

regulations could be interpreted as 

inconsistent with one another. 

Outreach 

EPA is aware that CWA Section 401 

and the 401 Certification Rule are of 

interest to many states, tribes, federal 

agencies, project proponents, and the 

public because of the relationship 

between water quality certifications and 

federal licensing and permitting 

processes. As a result, EPA wants to 

ensure that it has the opportunity to 

consider stakeholder input prior to 

revising the 401 Certification Rule. EPA 

intends to have multiple webinar-based 

listening sessions to solicit feedback on 

potential approaches to revise the 401 

Certification Rule. During these 

listening sessions, EPA will provide 

background information on the prior 

rulemaking effort. Stakeholders will 

have the opportunity to provide input to 

EPA on the topics provided above and 

any other relevant information on the 

401 Certification Rule for the agency’s 

consideration. Information on the 

listening session dates, times, and 

registration instructions will be made 

available on EPA’s website, located at 

https://www.epa.gov/cwa-401. Persons 

or organizations wishing to provide 

verbal input during a listening session 

will be selected on a first-come, firstserved basis, with consideration given 

to hearing from different stakeholder 

groups. Due to the expected number of 

participants, individuals will be asked 

to limit their oral presentation to three 

minutes. Further instructions on signing 

up and participating in listening 

sessions will be made available on 

EPA’s website above at a later date. 

Supporting materials and written 

feedback from those who do not have an 

opportunity to speak can be submitted 

to the docket as described above. 

Michael S. Regan, 

Administrator. 

[FR Doc. 2021–11513 Filed 6–1–21; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 660 

[RTID 0648–XA696] 

Fisheries Off West Coast States; West 

Coast Salmon Fisheries; Amendment 

21 to the Pacific Coast Salmon Fishery 

Management Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Announcement of availability of 

fishery management plan amendment; 

request for comments. 

SUMMARY: The Pacific Fishery 

Management Council (Council) has 

submitted Amendment 21 to the Pacific 

Coast Salmon Fishery Management Plan 

(FMP) to the Secretary of Commerce for 

review. If approved, Amendment 21 

would set an annual Chinook salmon 

abundance threshold below which the 

Council and NMFS would implement 

specific management measures, through 

the annual ocean salmon management 

measures, to limit ocean salmon fishery 

impacts on the availability of Chinook 

salmon as prey for endangered Southern 

Resident killer whales (SRKW). 

DATES: Comments on Amendment 21 

must be received by August 2, 2021. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2021–0006, by the following 

method: 

• Electronic Submissions: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov and enter NOAA– 

NMFS–2021–0006 in the Search box. 

Click the ‘‘Comment’’ icon, complete 

the required fields, and enter or attach 

your comments. 

Instructions: Comments must be 

submitted by the above method to 

ensure that the comments are received, 

documented, and considered by NMFS. 

Comments sent by any other method, to 

any other address or individual, or 

received after the end of the comment 

period, may not be considered. All 

comments received are a part of the 

public record and will generally be 


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