On July 7, 2025, the U.S. Environmental Protection Agency
(EPA) published
a notice inviting public comments on its 2023 Water Quality Certification
Improvement Rule. That rule governs Clean Water Act (CWA) Section 401 Water
Quality Certifications (WQCs), including those for hydropower projects in
Maine.
Obtaining
a § 401 WQC is a crucial step in the federal licensing process, particularly
for hydropower projects regulated by the Federal Energy Regulatory Commission
(FERC). While FERC oversees energy licensing, the CWA designates states (as
well as tribal nations) with the obligation to issue water quality
certifications. Under § 401, a Federal license cannot be issued unless the
designated entity either certifies that the project meets state water quality
standards, explicitly waives certification, or fails to act within the
timeframe allowed. This process was designed to ensure that state water quality
concerns are timely addressed alongside Federal energy considerations.
While the 2023 (Biden-era) Rule aimed to clarify and
streamline the certification process, the Trump EPA appears to be pursuing even
more significant reform. Hence, EPA is now seeking public feedback through
listening sessions and written comments from certifying authorities, project
applicants, and other stakeholders. Listening sessions are scheduled for:
July 16, 2025, 1:00–4:30 p.m. ET; and
July 30, 2025, 1:00–4:30 p.m. ET
Register here to attend.
The EPA is
especially interested in input on:
·
Certification timelines
·
Clarity on what constitutes a
complete application
·
State and Federal agency
coordination
·
Interpretations of key provisions in
the 2023 Rule, including:
o The scope of certification (i.e., which project impacts should
be considered);
o Meaning of “other appropriate requirements of State law;”
and
o Level of consideration of impacts on downstream jurisdictions.
The
EPA notice indicates that the responses to these topic areas will assist the
Agency in improving permitting efficiency, protecting water quality, reducing
procedural confusion, and ensuring that certifications reflect meaningful and
lawful water quality reviews rather than bureaucratic obstacles.
The
Maine Department of Environmental Protection (DEP), which manages Maine’s § 401
certification process, anticipates receiving 17 new hydropower certification
applications over the next five years as part of the FERC relicensing cycle. Hence,
this comment period provides a valuable opportunity for potentially impacted
entities to influence the regulatory process and help ensure a smoother § 401
certification and recertification experience.