[Federal Register Volume 85, Number 202 (Monday, October 19, 2020)]
[Proposed Rules]
[Pages 66287-66290]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20327]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Parts 153 and 157
[Docket No. RM20-18-000]
Waiver of the Water Quality Certification Requirements of Section
401(a)(1) of the Clean Water Act
AGENCY: Federal Energy Regulatory Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: Pursuant to the Environmental Protection Agency's Clean Water
Act Section 401 Certification Rule and Executive Order 13868, the
Federal Energy Regulatory Commission (Commission) is proposing rules to
categorically establish a reasonable period of time for a certifying
authority to act on a water quality certification request related to
natural gas and liquified natural gas projects for which either an
application filed pursuant to section 3 or section 7(c) of the Natural
Gas Act (NGA) is pending with the Commission. The Commission is
amending its regulations to define when the certification requirements
of section 401(a)(1) of the Clean Water Act (CWA) have been waived as a
result of the failure of the state or other authorized certifying
agency to act on a request for CWA certification filed by an applicant
for a Commission-issued section 7 certificate of public convenience and
necessity or section 3 authorization under the NGA. The Commission is
allowing CWA certifying authorities up to one year after the certifying
authority's receipt of a request for section 401 water quality
certification to grant or deny the applicant's request for
certification.
DATES: Comments are due November 18, 2020.
ADDRESSES: You may send comments, identified by RM20-18-000, by either
of the following methods:
Agency website: Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format.
Mail: Those unable to file electronically may mail
comments to: Federal Energy Regulatory Commission, Secretary of the
Commission, 888 First Street NE, Washington, DC 20426. Hand-delivered
comments should be delivered to Health and Human Services, 12225
Wilkins Avenue, Rockville, Maryland 20852.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Comment
Procedures section of this document.
FOR FURTHER INFORMATION CONTACT:
David Swearingen (Technical Information), Office of Energy Projects,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-6173, david.swearingen@ferc.gov.
Karin Larson (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8236, karin.larson@ferc.gov.
Rachael Warden (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8717, rachael.warden@ferc.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
Paragraph Numbers
I. Background--743-
II. Proposed Revisions--746-
III. Regulatory Requirements--747-
A. Information Collection Statement--747-
B. Environmental Analysis--748-
C. Regulatory Flexibility Act--749-
D. Comment Procedures--750-
E. Document Availability--751-
[[Page 66288]]
I. Background
1. On April 10, 2019, Executive Order 13868 entitled Promoting
Energy Infrastructure and Economic Growth was issued with the stated
goal of enabling timely construction of energy infrastructure and
reducing regulatory uncertainties from the permitting process for
infrastructure projects. The Executive Order directed the Environmental
Protection Agency (EPA) to update its regulations governing water
quality certification under section 401 of the Clean Water Act
(CWA).\1\ CWA section 401 is a direct grant of authority to states \2\
to review for compliance with appropriate federal, state, and tribal
water quality requirements any discharge into a water of the United
States that may result from a proposed activity that requires a federal
license or permit. Section 401(a)(1) of the CWA requires that an
applicant for a federal license or permit to conduct activities that
may result in a discharge into the navigable waters of the United
States, such as a Federal Energy Regulatory Commission (Commission)
hydroelectric project license or a Natural Gas Act (NGA) certificate of
public convenience and necessity for a natural gas pipeline that
crosses a navigable water, must provide the federal permitting agency a
water quality certification from the state in which the discharge
originates or evidence of waiver thereof.\3\ If the state ``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\ 33 U.S.C. 1341(a)(1).
\2\ Indian tribes that have been approved for ``treatment as a
state'' status may also have the authority under section 401 to
issue water quality certifications.
\3\ 33 U.S.C. 1341(a)(1).
\4\ Id.
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2. In compliance with the Executive Order, on June 1, 2020, the EPA
issued the Clean Water Act Section 401 Certification Rule
(Certification Rule), which revises its regulations under 40 CFR part
121. The rule was published in the Federal Register on July 13, 2020,
and becomes effective 60 days after publication on September 11, 2020.
The Certification Rule applies prospectively to certification requests
submitted after the effective date of the rule. The Executive Order
mandates that ``[w]ithin 90 days of [EPA's issuance of revised
regulations], if necessary, the heads of each 401 Implementing Agency
\5\ shall initiate a rulemaking to ensure their respective agencies'
regulations are consistent with'' the EPA's Certification Rule and
``with the policies set forth in section 2 of this order.'' \6\
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\5\ ``Implementing agency'' is defined as a federal agency that
issues permits or licenses subject to the certification requirements
of section 401 of the CWA.
\6\ E.O. 13868 of Apr 10, 2019, 84 FR 15495, 15496 (Apr. 15,
2019).
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3. Section 121.6(a) of the Certification Rule requires federal
permitting agencies \7\ to establish the reasonable period of time for
the certifying authority \8\ to act on a water quality certification
request, which period may not exceed one year from receipt. If the
certifying authority fails or refuses to act on a certification request
within the reasonable period of time, then the certification
requirement for a license or permit is waived.\9\ The reasonable period
of time may be set either categorically or on a case-by-case basis.\10\
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\7\ The Certification Rule defines ``Federal Agency'' as any
federal government agency to which application is made for a license
or permit that is subject to the requirements of CWA section 401.
Clean Water Act Section 401 Certification Rule, 85 FR 42210, 42285
(July 13, 2020) (to be codified at 40 CFR pt. 121).
\8\ The Certification Rule defines ``Certifying Authority'' as
the agency with the responsibility to certify compliance with
applicable requirements for water quality under CWA section 401. Id.
The Commission's regulations refer to a ``Certifying Authority'' as
a ``Certifying Agency.''
\9\ Id. at 42286.
\10\ See id. at 42285. In setting the reasonable period of time
the Certification Rule calls for the federal agency to consider the
complexity of the proposed project, the nature of any potential
discharge and the potential need for studies of the effects from the
proposed discharge. See id. at 42286.
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4. The Commission's practice has been to deem the one-year waiver
period to commence when the certifying agency receives the request. In
1987, the Commission promulgated subsections 4.34(b)(5)(iii) and
5.23(b)(2) \11\ of its regulations governing hydropower licensing
proceedings to provide that a certifying agency is deemed to have
waived certification if it has not denied or granted certification by
one year after the date it received a written certification
request.\12\ Accordingly, subsections 4.34(b)(5)(iii) and 5.23(b)(2)
\13\ of the Commission's regulations establish for hydroelectric
projects a categorical ``reasonable period of time'' of one year.
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\11\ 18 CFR 4.34(b)(5)(iii) and 5.23(b)(2). Part 4 of the
Commission's regulations governs applicants using the traditional
licensing process and part 5 governs applicants using the integrated
license application process.
\12\ 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).
\13\ 18 CFR 4.34(b)(5)(iii) and 5.23(b)(2).
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5. While no comparable regulation exists for NGA infrastructure
proceedings, the Commission's practice is to also categorically apply a
one-year waiver period for water quality certification applications
filed in connection to a proposed natural gas or liquefied natural gas
infrastructure project application.\14\
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\14\ Constitution Pipeline Co., LLC, 162 FERC ] 61,014, at P 16
(explaining that since 1987 the Commission has consistently
determined, both by regulation and in our orders on proposed
projects, that the reasonable period of time for action under
section 401 is one year after the date the certifying agency
receives a request for certification), reh'g denied, 164 FERC ]
61,029 (2018).
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II. Proposed Revisions
6. We continue to believe that the benefits of setting a
categorical waiver period of one year, as permitted by the CWA, best
serves the public interest by avoiding uncertainty associated with
open-ended and varying certification deadlines.\15\ Considering the
historical complexity of proposed projects and the nature and potential
need for studies of the discharge, the Commission proposes to continue
to use the categorical one-year waiver period as the ``reasonable
period of time'' within which the certifying authority must act and to
codify this waiver period for natural gas and liquified natural gas
projects by adding the categorical one-year waiver period to its
regulations governing applications for authorizations under sections 3
and 7 of the NGA for liquefied natural gas and natural gas facilities
in parts 153 and 157. Given that it would be administratively
inefficient and a potential source of controversy to establish
reasonable time periods on a case-by-case basis; that state certifying
agencies may vary in terms of their procedures for reviewing requests
for water quality certification; and that natural gas projects before
the Commission include highly complex proposals that may well take a
state a significant time to review, we find that providing the maximum
time permitted under the CWA, i.e., a categorical one-year waiver
period, is reasonable.
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\15\ Constitution Pipeline Co., LLC, 162 FERC ] 61,014 at PP 16-
17, 20 (determining that setting a one-year waiver period yields
substantial benefits to the applicant, the certifying agency, and
the Commission); Constitution Pipeline Co., LLC, 164 FERC ] 61,029
at P 10 (same). See Order No. 464, FERC Stats. & Regs. ] 30,730
(concluding that giving the certifying agencies the maximum period
allowed by the CWA will not unduly delay Commission processing of
license applications and would achieve a major objective of the
rule--obtaining early certainty as to when certification would be
deemed waived and avoiding open-ended certification deadlines).
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[[Page 66289]]
III. Regulatory Requirements
A. Information Collection Statement
7. The Paperwork Reduction Act \16\ 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 proposed rules published in the Federal
Register.\17\ This proposed rule does not contain any information
collection requirements. The Commission is therefore not required to
submit this rule to OMB for review.
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\16\ 44 U.S.C. 3501-3521.
\17\ See 5 CFR 1320.11.
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B. Environmental Analysis
8. 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 environment.\18\ 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.\19\ This proposed rule proposes to
categorically establish a reasonable period of time for a certifying
agency to act on a water quality certification request for natural gas
and liquified natural gas projects with an application pending with the
Commission. Because this proposed rule is procedural in nature,
preparation of an Environmental Assessment or an Environmental Impact
Statement is not required.
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\18\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 41 FERC ] 61,284 (1987).
\19\ 18 CFR 380.4(a)(2)(ii).
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C. Regulatory Flexibility Act
9. The Regulatory Flexibility Act of 1980 (RFA) \20\ generally
requires a description and analysis of proposed 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 proposed rule and minimize any
significant economic impact on a substantial number of small
entities.\21\ In lieu of preparing a regulatory flexibility analysis,
an agency may certify that a proposed rule will not have a significant
economic impact on a substantial number of small entities.\22\ The
Small Business Administration's (SBA) Office of Size Standards develops
the numerical definition of a small business.\23\ The SBA has
established a size standard for pipelines transporting natural gas,
stating that a firm is small if its annual receipts (including its
affiliates) are less than $30 million.\24\
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\20\ 5 U.S.C. 601-612.
\21\ Id. 603(c).
\22\ Id. 605(b).
\23\ 13 CFR 121.101.
\24\ 13 CFR 121.201, subsection 486.
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10. If enacted, this proposed rule would apply to entities, a small
number of which may be small businesses, with an application for a
project pending with the Commission under section 3 or 7 of the NGA
that require a water quality certification under section 401(a)(1) of
the CWA. However, the proposed rule would have no effect on these
entities, regardless of their status as a small entity or not, as the
rule imposes no action or requirement on those entities. Accordingly,
pursuant to section 605(b) of the RFA, the Commission certifies that
this proposed rule will not have a significant economic impact on a
substantial number of small entities.
D. Comment Procedures
11. The Commission invites interested persons to submit comments on
the matters and issues proposed in this notice to be adopted, including
any related matters or alternative proposals that commenters may wish
to discuss. Comments are due November 18, 2020. Comments must refer to
Docket No. RM20-18-000, and must include the commenter's name, the
organization they represent, if applicable, and their address.
12. The Commission encourages comments to be filed electronically
via the eFiling link on the Commission's website at http://www.ferc.gov. The Commission accepts most standard word processing
formats. Documents created electronically using word processing
software should be filed in native applications or print-to-PDF format
and not in a scanned format. Commenters filing electronically do not
need to make a paper filing.
13. Commenters that are not able to file comments electronically
must send an original of their comments to: Federal Energy Regulatory
Commission, Secretary of the Commission, 888 First Street NE,
Washington, DC 20426.
14. All comments will be placed in the Commission's public files
and may be viewed, printed, or downloaded remotely as described in the
Document Availability section below. Commenters on this proposal are
not required to serve copies of their comments on other commenters.
E. Document Availability
15. 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). At
this time, the Commission has suspended access to the Commission's
Public Reference Room due to the President's March 13, 2020
proclamation declaring a National Emergency concerning the Novel
Coronavirus Disease (COVID-19).
16. 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.
17. 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.
List of Subjects
18 CFR Part 153
Exports, Natural gas, Reporting and recordkeeping requirements.
18 CFR Part 157
Administrative practice and procedure, Natural gas, Reporting and
recordkeeping requirements.
By direction of the Commission.
Issued: September 9, 2020.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
In consideration of the foregoing, the Commission is proposing to
amend parts 153 and 157, chapter I, title 18, Code of Federal
Regulations, as follows:
[[Page 66290]]
PART 153--APPLICATIONS FOR AUTHORIZATION TO CONSTRUCT, OPERATE, OR
MODIFY FACILITIES USED FOR THE EXPORT OR IMPORT OF NATURAL GAS
0
1. The authority citation for part 153 continues to read as follows:
Authority: 15 U.S.C. 717b, 717o; E.O. 10485; 3 CFR, 1949-1953
Comp., p. 970, as amended by E.O. 12038, 3 CFR, 1978 Comp., p. 136,
DOE Delegation Order No. 0204-112, 49 FR 6684 (February 22, 1984).
0
2. Revise Sec. 153.4 to read as follows:
Sec. 153.4 General requirements.
The procedures in Sec. Sec. 157.5, 157.6, 157.8, 157.9, 157.10,
157.11, 157.12, 157.22, and 157.23 of this chapter are applicable to
the applications described in this subpart.
PART 157--APPLICATIONS FOR CERTIFICATES OF PUBLIC CONVENIENCE AND
NECESSITY AND FOR ORDERS PERMITTING AND APPROVING ABANDONMENT UNDER
SECTION 7 OF THE NATURAL GAS ACT
0
1. The authority citation for part 157 is revised to read as follows:
Authority: 15 U.S.C. 717-717w, 3301-3432; 33 U.S.C. 1341(a)(1);
42 U.S.C. 7101-7352.
0
2. Revise Sec. 157.22 to read as follows:
Sec. 157.22 Schedule for final decisions on a request for a Federal
authorization.
(a) For an application under section 3 or 7 of the Natural Gas Act
that requires a Federal authorization--i.e., a permit, special use
authorization, certification, opinion, or other approval--from a
Federal agency or officer, or State agency or officer acting pursuant
to delegated Federal authority, a final decision on a request for a
Federal authorization is due no later than 90 days after the Commission
issues its final environmental document, unless a schedule is otherwise
established by Federal law.
(b) For requests for a water quality certification submitted
pursuant to section 401(a)(1) of the Federal Water Pollution Control
Act (Clean Water Act) in connection with a project for which
authorization is sought from the Commission under section 3 or 7 of the
Natural Gas Act, the reasonable period of time during which the
certifying agency may act on the water quality certification request is
one year from the certifying agency's receipt of the request. A
certifying agency is deemed to have waived the certification
requirements of section 401(a)(1) of the Clean Water Act if the
certifying agency has not denied or granted certification by one year
after the date the certifying agency received a written request for
certification.
[FR Doc. 2020-20327 Filed 10-16-20; 8:45 am]
BILLING CODE 6717-01-P