FERC Proposes to Modify Water Quality Certification Waiver Period for Natural Gas Projects

Troutman Pepper

Troutman Pepper

On September 9, 2020, FERC issued a Notice of Proposed Rulemaking (“NOPR”) proposing updated regulations that will establish a one-year period for state agencies or other certifying authorities (“Certifying Agencies”) to act on requests for water quality certifications related to sections 3 and 7 of the Natural Gas Act (“NGA”). Under the Clean Water Act (“CWA”), should a Certifying Agency fail to act on such a request within one year, they are deemed to have waived the certification requirements.

Section 401 of the CWA requires that applicants seeking federal licenses or permits to conduct activities that may discharge into the navigable waters of the United States, such as an NGA certificate of public convenience and necessity for a natural gas pipeline that crosses a navigable water, must provide the agency in charge of issuing such license or permit a water quality certification from the state where the discharge would originate. However, should the state or Certifying Agency fail to act on a request for a water quality certification within a reasonable period of time, not to exceed one year, the certification requirement is waived.

Pursuant to Executive Order 13868 (as further discussed in the April 17, 2019 edition of the WER), the Environmental Protection Agency revised its regulations implementing Section 401 of the CWA, which included a requirement that federal permitting agencies, such as FERC, establish a reasonable period of time, not to exceed one year, for Certifying Agencies to act on requests for water quality certifications before the Certifying Agency is deemed to have waived the certification requirement (see June 3, 2020 edition of the Environmental Law and Policy Monitor).

While FERC has regulations dictating that Certifying Agencies have a one-year waiver period with respect to certifications related to hydroelectric projects under the Federal Power Act, it does not have such regulations for NGA infrastructure procedures. However, in the NOPR, FERC stated it has traditionally determined that the reasonable period of time allocated to Certifying Agencies prior to waiver is one year. Based on this, FERC is now proposing to update its regulations to codify the one-year waiver period as the reasonable period of time within which Certifying Authorities must act on water quality certifications for natural gas and liquefied natural gas projects.

FERC invites public comment on the proposed changes, which are due thirty (30) days after publication in the Federal Register.

A copy of the NOPR is available here.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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