Waiver of the Water Quality Certification Requirements of Section 401(a)(1) of the Clean Water Act, 66287-66290 [2020-20327]
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Federal Register / Vol. 85, No. 202 / Monday, October 19, 2020 / Proposed Rules
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Document
Letter, ‘‘Regulatory Issue Resolution Protocol Screening Form and Resolution Plan for Improving the Part 72 Regulatory Framework (RIRP–I–16–01),’’ May 12, 2017.
Letter, ‘‘Response to Nuclear Energy Institute’s Letter Regarding Regulatory Issue Resolution Protocol Screening
Form and Resolution Plan for Improving the Part 72 Regulatory Framework (RIRP–I–16–01),’’ June 5, 2017.
Letter, ‘‘Application for Amendment 16 to Standardized NUHOMS® Certificate of Compliance No. 1004 for Spent
Fuel Storage Casks, Revision 0 (Docket No. 72–1004),’’ June 29, 2017.
Letter, ‘‘Application for Amendment No. 16 to Standardized NUHOMS® Certificate of Compliance No. 1004—Accepted for Review,’’ July 21, 2017.
Preliminary Safety Evaluation Report, ‘‘TN Americas LLC Standardized NUHOMS® Horizontal Modular Storage
System for Irradiated Nuclear Fuel Docket No. 72–1004 NUHOMS® System Amendment No. 16,’’ September
18, 2019.
Letter, ‘‘Industry White Paper—Defining Spent Fuel Performance Margins,’’ November 8, 2019 ................................
Public Meeting Documentation, November 18, 2019 .....................................................................................................
Summary, November 18, 2019 Public Meeting, December 18, 2019 ...........................................................................
Transcript, ‘‘Public Meeting to Discuss the Issues Contained in PRM–72–7 and Additional Staff-Identified ...............
Changes to 10 CFR Part 72,’’ November 18, 2019 .......................................................................................................
Letter, Endorsement of Graded Approach, January 8, 2020 .........................................................................................
Letter, Request to Withdraw PRM–72–7, February 25, 2020 ........................................................................................
FEDERAL REGISTER notice for direct final rule, ‘‘TN Americas LLC, Standardized NUHOMS® Horizontal Modular
Storage System, Certificate of Compliance No. 1004, Renewed Amendment No. 16,’’ June 30, 2020.
FEDERAL REGISTER notice correction, ‘‘TN Americas LLC, Standardized NUHOMS® Horizontal Modular Storage
System, Certificate of Compliance No. 1004, Renewed Amendment No. 16,’’ July 17, 2020.
IV. Conclusion
The NRC is withdrawing PRM–72–7
and is no longer pursuing the Spent
Fuel Cask Certificate of Compliance
Format and Content rulemaking for the
reasons discussed in this document. If
the NRC decides to pursue a similar or
related rulemaking in the future, it will
inform the public through a new
rulemaking entry in the Unified Agenda
of Regulatory and Deregulatory
Activities.
Dated: October 2, 2020.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2020–22268 Filed 10–16–20; 8:45 am]
BILLING CODE 7590–01–P
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
Federal Energy Regulatory
Commission.
ACTION: Notice of proposed rulemaking.
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AGENCY:
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
SUMMARY:
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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 https://www.ferc.gov.
Documents created electronically using
word processing software should be
filed in native applications or print-toPDF 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.
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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–
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Federal Register / Vol. 85, No. 202 / Monday, October 19, 2020 / Proposed Rules
I. Background
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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
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
1 33
U.S.C. 1341(a)(1).
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.
5 ‘‘Implementing agency’’ is defined as a federal
agency that issues permits or licenses subject to the
2 Indian
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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
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
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.
certification requirements of section 401 of the
CWA.
6 E.O. 13868 of Apr 10, 2019, 84 FR 15495, 15496
(Apr. 15, 2019).
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.
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
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 oneyear 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 oneyear waiver period, is reasonable.
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).
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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Federal Register / Vol. 85, No. 202 / Monday, October 19, 2020 / Proposed Rules
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.
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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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
16 44
U.S.C. 3501–3521.
5 CFR 1320.11.
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).
20 5 U.S.C. 601–612.
17 See
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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
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 https://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.
21 Id.
603(c).
22 Id. 605(b).
23 13 CFR 121.101.
24 13 CFR 121.201, subsection 486.
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66289
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 (https://
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:
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66290
Federal Register / Vol. 85, No. 202 / Monday, October 19, 2020 / Proposed Rules
PART 153—APPLICATIONS FOR
AUTHORIZATION TO CONSTRUCT,
OPERATE, OR MODIFY FACILITIES
USED FOR THE EXPORT OR IMPORT
OF NATURAL GAS
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).
2. Revise § 153.4 to read as follows:
§ 153.4
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket Number USCG–2020–0424]
General requirements.
The procedures in §§ 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.
RIN 1625–AA00
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
AGENCY:
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.
■
2. Revise § 157.22 to read as follows:
§ 157.22 Schedule for final decisions on a
request for a Federal authorization.
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[FR Doc. 2020–20327 Filed 10–16–20; 8:45 am]
BILLING CODE 6717–01–P
1. The authority citation for part 153
continues to read as follows:
■
■
has not denied or granted certification
by one year after the date the certifying
agency received a written request for
certification.
(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
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Safety Zones; Vieques Unexploded
Ordnance Operations, East Vieques;
Vieques, Puerto Rico
ACTION:
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard is proposing
to establish permanent safety zones for
certain waters of Vieques, Puerto Rico.
This action is necessary to provide for
the safety of life on the navigable waters
near the island of Vieques, Puerto Rico
due to unexploded ordnances. This
proposed rulemaking would prohibit
mariners from anchoring, dredging, or
trawling in the designated areas. It
would also prohibit persons and vessels
from being in the safety zones during
clearance operations, unless authorized
by the Captain of the Port San Juan or
a designated representative. We invite
your comments on this proposed
rulemaking.
SUMMARY:
Comments and related material
must be received by the Coast Guard on
or before November 18, 2020.
ADDRESSES: You may submit comments
identified by docket number USCG–
2020–0424 using the Federal
eRulemaking Portal at https://
www.regulations.gov. See the ‘‘Public
Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
further instructions on submitting
comments.
DATES:
If
you have questions about this proposed
rulemaking, call or email Lieutenant
Natallia Lopez, Sector San Juan
Prevention Department, Waterways
Management Division, U.S. Coast
Guard; telephone 787–729–2380, email
Natallia.M.Lopez@uscg.mil.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
I. Table of Abbreviations
CFR Code of Federal Regulations
COTP Captain of the Port
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DHS Department of Homeland Security
FR Federal Register
NPRM Notice of proposed rulemaking
PR Puerto Rico
§ Section
U.S.C. United States Code
UXO Unexploded Ordnance
II. Background, Purpose, and Legal
Basis
On April 30, 2020, contractors on
behalf of the U.S. Navy contacted the
Coast Guard requesting the
establishment of permanent safety zones
surrounding unexploded ordnances
(UXO) in Vieques, PR. The Navy has
implemented long-term plans for the
deactivation and removal of the UXOs,
but safety zones are needed until those
operations are completed. The Captain
of the Port San Juan (COTP) has
determined that potential hazards
associated with the UXOs would be a
safety concern for anyone within the
designated areas.
The purpose of this rulemaking is to
ensure the safety of vessels and the
navigable waters within the designated
areas until the complete deactivation
and removal of all UXOs. The Coast
Guard is proposing this rulemaking
under authority in 46 U.S.C. 70034.
III. Discussion of Proposed Rule
The COTP is proposing to establish
permanent safety zones in the navigable
waters east of Vieques, Puerto Rico.
UXOs from past military training
operations remain present in the waters
of east Vieques, Puerto Rico. The U.S.
Navy is currently in the process of
planning, retrieving, and properly
disposing of the UXOs in this area.
These operations will be ongoing for the
next 20 years. Accordingly, ordnance
clearing operations will be held at
various times on the waters of East
Vieques, Puerto Rico. UXOs will be
retrieved by several divers working for
the U.S. Navy.
This proposed safety zones area
encompasses waters in East Vieques,
Puerto Rico. In areas where UXOs are
known to be in shallow waters, where
mariners have been known to anchor
which creates risk for the unintended
detonation of UXOs. The safety zones
would prohibit vessels from anchoring,
dredging, or trawling in the designated
areas at all times. Further, no vessel or
person would be permitted to enter,
transit through, or remain in the safety
zones during clearance operations due
to increased risk of explosion and
fragmentation hazards.
Persons and vessels may request
authorization to enter, transit through,
anchor in, or remain within the
proposed permanent safety zones by
contacting the Captain of the Port San
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]]>Agencies
[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 https://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, [email protected].
Karin Larson (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8236, [email protected].
Rachael Warden (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE, Washington,
DC 20426, (202) 502-8717, [email protected].
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 https://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 (https://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
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
[email protected].
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
