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CWA Permitting Process Brings 'Needless Uncertainty' to Pipeline Projects, Says Union Rep

The Clean Water Act (CWA) Section 401 permitting process has brought "needless uncertainty" to natural gas pipeline and other construction projects, according to Brent Booker, secretary-treasurer of North America's Building Trades Unions (NABTU).

State actions under Section 401 “can stymie approval for years -- or, worse, halt a half-completed construction project in its tracks," Booker testified Thursday during a hearing of the Senate Committee on Environment and Public Works in Washington, DC.

In New England, "union construction workers stand ready to build necessary pipeline infrastructure to deliver Marcellus Shale natural gas to utilities, industry, and critical infrastructure like schools and hospitals to consumers," he said, but the current Section 401 water quality certification process and other regulations have gotten in the way.

Last year the New York Department of Environmental Conservation (DEC) denied a WQC to National Fuel Gas Co.'s 490,000 Dth/d-plus Northern Access project, which would expand the Empire and National Fuel Supply systems to move gas from northwestern Pennsylvania to markets in New York, Canada, the Northeast and the Midwest. Last week FERC offered new hope for the project when it found that New York waived its authority to issue a WQC for the pipeline by failing to act within the one-year timeframe required under the CWA.

Earlier this year, however, the long-delayed Constitution Pipeline, which would provide 650,000 Dth/d of takeaway capacity in northeast Pennsylvania, was dealt a blow when the Federal Energy Regulatory Commission denied a petition for a declaratory order that the DEC waived its authority when it failed to issue a WQC within a reasonable period of time. In June, Constitution Pipeline Co. LLC asked FERC for a two-year extension to build the proposed pipeline.

Meanwhile, regulators in New Jersey have yet to issue a 401 permit for the PennEast Pipeline, and last May took the unusual step of asking a federal court to review FERC's certificate order authorizing the project.

Some states are using the WQC permitting process to hobble projects even after they receive FERC approval, Booker told the committee. Denying Constitution a permit blocked about 2,400 direct and indirect jobs and "continues to cost local governments approximately $13 million in annual property tax revenue," he said.

Booker said NABTU supports reforms in Senate Bill 3303, aka the Water Quality Certification Improvement Act, a bill recently introduced by four Republican senators, including committee chairman John Barrasso of Wyoming. The bill would strike and insert language throughout the CWA, amending the portions that address water quality certification in an effort to clarify Section 401 of the CWA.

"Requiring states to tell an applicant whether they have all the materials needed to process a certification is common sense," Booker said. "The clarification that the scope of a Section 401 review is limited to only water quality impacts needs no explanation. We support reforms that reign in the legal challenges while thoughtfully protecting the environment, the public, and worker safety on the job."

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