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FERC Establishes Waiver Period for Natural Gas Projects

FERC has issued a Final Rule amending the regulations to establish the one year of states, tribes, and other certifying authorities. The rule implies to act on the Clean Water Act (CWA) Section 401 water quality certification request for proposed natural gas and liquefied natural gas projects.

Under CWA, a Certifying Agency is deemed to have waived off the requirements of certification. The condition is “if it fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed one year) after receipt of such request.” In 1987, the FERC promulgated regulations providing that a Certifying Agency is deemed to waive off water quality certification.

The FERC has never established a comparable regulation for natural gas projects, but its practice has never been to apply the same one-year waiver period. On 1st June 2020, the Environmental Protection Agency (“EPA”) released the final rule. The rule clarified the substantive authorities and procedural requirements for water quality certifications under Section 401 of CWA.

On 9th September 2020, FERC issued the Notice of Proposed Rulemaking (NOPR) to update regulations that would establish the one-year period for Certifying Agencies to act on requests of the water quality certifications concerning sections 3 and 7 of the NGA.

The final rule launched on 18th March 2021 states that the one-year waiver period was proposed in the NOPR for the agencies to work on the request for certificates. The FERC dismissed comments while passing the Final Rule and urged the establishment for a short time on a case-by-case basis.

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