through local newspapers, electronic media, or other appropriate media) to inform other potentially interested entities of the applicant tribe's complete application and of the opportunity to provide relevant information regarding the tribe's assertion of authority. Id. Include Docket ID No. EPA is also proposing to describe EPA's procedures to review and process an application for section 401 TAS. Typically a deposit is required when the application package is submitted. Rec. 913 F.3d at 1101. proposed 40 CFR 121.11(b). In proposed 121.17, EPA is proposing to retain the public notice provision from the 2020 Rule with revisions to facilitate participation by the broadest number of potentially interested stakeholders and clarify that following such public notice, the Administrator shall provide an opportunity for public comment. First, the Corps proposes the draft NWPs and takes comment on the proposal, and later finalizes the NWPs after considering public comment. 1341(a)(2). the Agency relied on the principle Start Printed Page 35353 Prior Agency guidance acknowledged this practice. means the Administrator, Environmental Protection Agency (EPA). "Special event" means any street festival, sidewalk sale, community-sponsored activity, or community-approved activity.". proposed 121.5(d), 121.6(a). by a State (40 CFR 122.26(b)(8)). During the project proponent listening session, project proponents shared feedback about the need to streamline the certification process and recommended that the new rule prevent delays in determining certification decisions. Accordingly, EPA is proposing to remove the regulatory text currently located at 121.7(b), which characterizes what actions a certifying authority may take based on its evaluation of the request for certification. (b) If the Regional Administrator determines that the discharge from the project may affect water quality in a neighboring jurisdiction, within 30 days after receiving notice in accordance with 121.12(a), the Regional Administrator shall notify the neighboring jurisdiction, the certifying authority, the Federal agency, and the project proponent in accordance with paragraph (c) of this section. See 1341(a)(1). In (last visited on January 27, 2022). The at 1102. The Court stated that the term discharge is broader than discharge of a pollutant and discharge of pollutants. Observing that the term discharge is not specifically defined in the statute, the Court applied the ordinary dictionary meaning, flowing or issuing out. It merely states that, if a neighboring jurisdiction objects to a Federal license or permit and requests a public hearing within the 60-day timeframe, the Federal licensing or permitting agency must hold a hearing. A waiver does not indicate a certifying authority's substantive opinion regarding the water quality implications (for itself or another jurisdiction) of a proposed activity or discharge. e.g., Dombeck, 54 FR 39101; 81 FR 65906. This is identical to the manner in which tribes have been demonstrating authority for eligibility to administer 401 certifications under existing TAS regulations, the only change being that under the new proposed regulations, tribes would be able to seek TAS eligibility for section 401 only. certification for a facility's . As noted in the 2020 Rule preamble, the statute does not expressly provide EPA with a role in the modification process, unlike the Agency's other roles under section 401. The Agency recognizes that there may be legitimate reasons for withdrawing and resubmitting certification requests, including but not limited to the following: a new project proponent, project analyses are delayed, or the project becomes temporarily infeasible due to financing or market conditions. EPA-HQ-OW-2021-0302. The collaborative approach EPA is proposing ( e.g., EPA requests comment on this proposed collaborative approach to setting the reasonable period of time, the 30-day timeframe that the Federal agency and certifying authority would have to determine the length of the reasonable period of time, and the 60-day default. Although [a]ll interested and affected parties have the opportunity to present evidence and testimony at a public hearing, the scope of the hearing is limited to the question of whether to grant or deny certification. at 121.2(b) (2019). 33 U.S.C. The 2020 Rule provides that the Federal agency sets the reasonable period of time and defined a process for how it should be determined. The Agency has considered the input it received as part of the tribal consultation process and other opportunities for pre-proposal recommendations. 31. license or permit in its certification request because a final Federal license or permit may not be issued until Congress granted states this certification authority in response to Federal agencies' failure to achieve Congress's previously stated goal of assuring that federally licensed or permitted activities comply with water quality standards. EPA and the Corps recently published a proposed rule that would define the scope of waters of the United States. Several stakeholders noted in pre-proposal input that the majority of section 401 certifications are issued in well under a year. var d = new Date(); This sort of documentation should satisfy Federal agency review in most instances. The list of contents at 124.53(c) differs significantly from the list of contents proposed at 121.5(c). [14] at 1341(a)(2). See American Rivers, If a project proponent disagrees with a certifying authority's denial, the project proponent may challenge the certifying authority's decision in the appropriate court of jurisdiction. PUD No. While the text of section 401(a)(1) says that the need for a certification is only triggered by a potential discharge into the navigable waters, it does not state that, once the need for certification is triggered, a certifying authority must confine its review to potential water quality impacts to such navigable waters. Indeed, while section 401(a)(1) says that the certifying authority must certify that any such discharge will comply with various provisions of the CWA, it does not limit the point of compliance for purposes of certifying authority review to the specific outfall point or to the waterbody (navigable or not) into which the triggering discharge occurs. Activity as a whole The current regulatory language also unnecessarily injects ambiguity into the certification process. 2008). 33 U.S.C. National Pollutant Discharge Elimination System (NPDES) - Wastewater 1503 & 1507. EPA-HQ-OW-2022-0128). See See see also This proposed approach recognizes the importance of ensuring that states and tribes are empowered to determine what information is necessary to initiate the certification process. v. The Agency believes this simpler approach will provide greater clarity about the nature EPA also conducted a focused review of pre- 129 F.3d at 107 (Section 401(d), reasonably read in light of its purpose, restricts conditions that states can impose to those affecting water quality in one manner or another.). 92-911 at 121 (1972) (Section 401 is substantially section 21(b) of the existing law amended to assure that it conforms and is consistent with the new requirements of the Federal Water Pollution Control Act.). Accordingly, EPA is proposing in 121.17 to provide public notice on receipt of a request for certification and broader public participation by not specifying the particular manner(s) in which that notice will occur. PDF Type One Appendix - Caltrans H.R. EPA, at 712. The 1971 Rule and 2020 Rule provided some direction on information that could be submitted to EPA as part of the section 401(a)(2) process, but neither regulation defined the contents of the section 401(a)(2) notification. (i) Such conditions merely put project proponents and Federal agencies on notice at the time of certification that future adaptive management implementation actions might be needed.[55]. Section 401(a)(1) clearly indicates Congress's intent to limit constructive waivers to situations where a certifying authority did not act. State Farm Mutual Automobile Ins. Consistent with this approach, EPA recognizes that certification conditions are an important tool that enable certifying authorities to ensure that projects needing Federal licenses or permits will be able to move forward without adverse impacts to water quality. There is nothing in the phrase any other appropriate requirement of State law, or the nature of CWA section 303(c) water quality standards, that would compel an interpretation that these water quality requirements could only support certification review or conditions to prevent water quality impacts to the state's navigable waters or caused by point sources. Finally, an expansive interpretation of scope of review as applying to all potentially affected state waters is supported by CWA section 510, which[e]xcept as expressly providedpreserves a state's authority and jurisdiction to protect its waters from pollution. If the Regional Administrator determines that a tribe's application meets the requirements proposed in 121.11(b), the Regional Administrator would promptly notify the tribe in writing. However, if a tribe previously qualified for TAS for another program that also required a tribe to demonstrate authority to regulate reservation water quality ( Additionally, the Agency is proposing procedures for Federal agencies to follow when providing notification to EPA. jurisdictions, certification and other conditions already contained in the draft license/permit, and the neighboring jurisdiction's water quality requirements. When a certifying authority reviews a request for certification, it shall evaluate whether the activity as a whole will comply with all applicable water quality requirements. In pre-proposal feedback for this rule, certifying authorities expressed concern over the potential consequences of Federal agency review required by the 2020 Rule. 40 CFR 121.15(a). 33 U.S.C. Accordingly, for these kinds of licenses and permits, EPA believes that any significant potential water quality-related impacts could be addressed by a certification condition on the activity whether it is construed to be the activities comprising the project in general or the specific activity authorized by the federal license or permit.. 1341(a)(1). Specifically, the 2020 Rule requires certification denials to be made in writing and to identify any water quality requirements with which the discharge will not comply, include a statement explaining why the discharge would not comply with those requirements, and provide any specific water quality data or information that would help explain a denial based on insufficient information. As the state transitions from the COVID-19 emergency, please contact your local Water Board to arrange necessary file reviews. Id. Additionally, when considering tribal capability, EPA would also consider whether the tribe can demonstrate the existence of institutions that exercise executive, legislative, and judicial functions, and whether the tribe has a history of successful managerial performance of public health or environmental programs. This action does not create enforceable duties for state and tribal governments. EPA is soliciting comment on this proposed approach. Some stakeholders have expressed concern with the On its face, section 401(a)(4) applies to a limited circumstance where there is a Federal license or permit and certification issued First, a Federal agency may suspend a license or permit where a certifying authority determines during a pre-operation inspection of the facility or activity that it will violate applicable water quality requirements. 1251 33 U.S.C. 85 FR 42250 (The scope of a Clean Water Act section 401 certification is limited to assuring that a discharge from a Federally licensed or permitted activity will comply with water quality requirements.); 2010 Handbook, at 16 (rescinded) (As incorporated into the 1972 CWA, [section] 401 water quality certification was intended to ensure that no federal license or permits would be issued that would prevent states or tribes from achieving their water quality goals or that would violate CWA provisions.). 69. Section 401 requires a certifying authority to provide procedures for public notice, and a public hearing where necessary, on a certification request. at 1341(a)(5). (a) Within five days of the date that it has received both the application and either a certification or waiver for a Federal license or permit, the Federal agency shall provide written notification to the Regional Administrator. v. Nos. U.S. Army Corps of Engineers' (Corps') Nationwide Permits, EPA's Construction General Permits). document. . 60 days) do not allow the state or tribe sufficient time to fulfill certain state or tribal law requirements, such as public notice requirements, or allow them to obtain all the information they need about a project to make an informed certification decision. In the general public listening sessions, speakers from non-governmental environmental and water conservation organizations reinforced the idea that states and tribes should be accorded greater deference in the certification process. 33 U.S.C. The request for a stay concerned only the appropriateness of the district court's vacatur of a promulgated rule before a decision on the merits. Once the request was submitted to EPA, the Regional Administrator was required to provide public notice of the request and an opportunity to comment. 1341(a)(3)-(a)(5). - I have questions regarding my Encroachment Permit Application? Prot., The authority for this action is the Federal Water Pollution Control Act, 33 U.S.C. Temporary Permits for Businesses to Operate on State Highway Right of Way (ROW), Customer Service Request (Division of Maintenance), Cal OES: Power Outage and Fire Recovery Resources, the County, Route and Post Mile location of your proposed encroachment. also said its activity as a whole interpretation was consistent with EPA's 1971 Rule at 40 CFR 121.2(a)(3) (2019) (requiring reasonable assurance that the activity will not violate applicable water quality standards) and with EPA's 1989 Guidance. any discharge 40 CFR 121.15 (2019). 1341(a)(1). EPA also anticipates that this proposed requirement may reduce redundancies between the certification and Federal licensing or permitting processes. The presence of, or potential for, a discharge is a key determinant for when a water quality certification is required. To provide direction on how a tribe may meet the criteria described above, EPA is also proposing to describe the contents of an application for TAS for section 401. 33 U.S.C. See EPA's proposal to clearly define the extent of Federal agency review in regulatory text is found in proposed 121.9. In EPA defers to the Federal agency to decide whether the public hearing would be conducted in-person and/or remotely through telephone, online, or other virtual platforms depending on the circumstances and the Federal agency's public hearing regulations.
Stepping Stone Farm Maine, 4212 Karl Rd, Columbus, Oh 43224, Jorge's San Marcos Restaurant Menu, Articles C