EPA’S PROPOSED CWA SECTION 401 RULEMAKING ENABLES HYDROPOWER TO MAKE GREATER CLEAN ENERGY CONTRIBUTION
Washington, D.C. (August 9, 2019) – The U.S. Environmental Protection Agency (EPA) today issued a landmark Notice of Proposed Rulemaking, which seeks to significantly modernize regulations implementing water quality certification pursuant to Clean Water Act (CWA) Section 401—regulations that have not been updated for nearly 50 years, and which predate Congress’ enactment of the Clean Water Act in 1972.
If adopted, the new rule would improve the standards and process for federal license and permit applicants, including applicants for Federal Energy Regulatory Commission (FERC) hydropower licenses, to obtain Section 401 water quality certification.
The proposed new regulations seek to add greater transparency; assure timeliness and certainty to water quality certification; improve coordination between concurrent federal and state review of hydropower projects; establish more uniform processes; and define the scope of a state’s review under Section 401.
Malcolm Woolf, President and CEO of the National Hydropower Association, lauded EPA’s proposed rule:
“Now more than ever, America needs the clean, renewable, flexible electricity provided by hydropower. As states around the country set goals to decarbonize their energy mix and bolster grid resiliency and reliability, we need a licensing process that recognizes hydropower as essential to our clean energy future, while balancing environment protections and state priorities.”
“EPA’s proposed rulemaking greatly improves a critical component of hydropower relicensing—water quality certification under CWA section 401. The regulatory improvements proposed by EPA will help preserve and expand hydropower resources – the only carbon-free resource capable of providing long duration storage and the flexibility needed to increase the reliability of variable renewables.”
By 2032, about 325 hydropower project licenses — representing 16 gigawatts carbon-free energy — will expire, necessitating a new license and new water quality certification. To modernize the Section 401 certification process, EPA’s proposal would, among other things:
- Clarify the scope of state review of a proposed licensed or permitted activities that involve a discharge to navigable waters,
- Ensure that any conditions included in state water quality certifications address approved water quality standards,
- Eliminate confusion regarding the required application materials for water quality certification,
- Require that state review and decision making on applications for certification occur within the Congressionally established one-year time period,
- Prompt the applicant, federal permitting agency, and the state to engage early in the application process to coordinate information needs,
- Authorize the federal permitting agency to ensure that certification conditions are within the scope of CWA section 401, and
- Ensure proper enforcement mechanisms for water quality certification conditions.
Throughout the U.S., hydropower operators are working with communities to restore wildlife and wetland habitats, and ensure the health and vitality of our rivers and lakes, and the aquatic life that resides within them. As the renewable resource that integrates the other renewables, like wind and solar, onto the grid, hydropower is going to play a critical role in America’s clean energy future. As EPA works toward a final rulemaking, NHA will continue engaging all stakeholders to develop solutions that advance grid reliability, environmental stewardship and collaboration in the process.