On March 29, 2021, the Federal Energy Regulatory Commission (FERC) published its Final Rule regarding Waiver of the Water Quality Certification Requirements of Section 401(a)(1) of the Clean Water Act in the Federal Register (86 FR 16298). The Final Rule amends FERC's regulations found in Part 153 and Part 157 of Title 18 to categorically establish a one-year time period for a state- or tribal-certifying authority to act on a water quality certification request related to natural gas pipelines and liquefied natural gas (LNG) projects pursuant to Section 3 or Section 7(c) of the Natural Gas Act (NGA). As described in Holland & Knight's prior blog, "Energy Commission Proposes Water Quality Certification Practices for Pipelines, Natural Gas Projects" (Oct. 20, 2020), this one-year period is the maximum allowed by statute, consistent with FERC's hydroelectric project regulations and consistent with FERC's long-standing practice in pipeline and LNG proceedings. The regulatory changes take effect on June 28.
The one-year period runs from "receipt of the request." This simple blanket rule avoids any ambiguity or administrative burden that may arise from a case-by-case approach, providing a shorter period subject to extensions or determining when an application is complete (including by agreement with the project proponent), an argument made in prior cases, including New York State Dept. of Env. Conserv. v. FERC, 884 F.3d 450 (2d Cir. 2018) and reiterated in the latest U.S. Court of Appeals for the Second Circuit decision involving the same parties decided March 23. Only five comments were received from interested parties, including industry trade associations, the project proponent involved in the Second Circuit litigation, a group of 16 state attorneys general and California regulatory agencies. No changes to the draft regulation were made as a result of the comments.
All stakeholders are now on notice for one year without exceptions. Only time will tell if these new regulations will eliminate disputes over the waiver.