Final Water Quality Certification Rule Published

Holland & Knight LLP
Contact

Holland & Knight LLP

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.

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.

© Holland & Knight LLP | Attorney Advertising

Written by:

Holland & Knight LLP
Contact
more
less

Holland & Knight LLP on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.