The Environmental Protection Agency (EPA) released guidance Friday on Section 401 of the Clean Water Act (CWA) that provides recommendations to clarify and streamline the oil and natural gas infrastructure permitting process.
The Clean Water Act Section 401 Certification Guidance for Federal Agencies, States, and Authorized Tribes covers statutory and regulatory timelines for review and action on CWA Section 401 certification, the appropriate scope of CWA Section 401 certification conditions, and information within the scope of state or authorized tribe's CWA Section 401 review.
The guidance stems from executive order 13868, which was signed by President Trump in April in an effort to accelerate approvals for natural gas infrastructure. With the order, Trump took aim at state authority over water quality certifications, which have stymied, among other things, natural gas pipeline projects in New York.
Section 401 of the CWA gives states and authorized tribes a direct role in federal permitting and licensing processes, but "outdated federal guidance and regulations...are causing confusion and uncertainty and are hindering the development of energy infrastructure," Trump said.
The EPA was tasked with determining whether any CWA provisions should be clarified, taking into account "federalism considerations" and the "appropriate scope" of water quality reviews. Trump directed the EPA administrator to issue guidance that would supersede current guidance, with final rules to be issued by May 2020.
EPA said the new guidance would “prompt greater investment in and certainty for national infrastructure projects,” while continuing to protect local water quality. Industry representatives applauded the agency’s action.
"When an infrastructure project requires federal authorization, Section 401 of the Clean Water Act provides states and tribes the opportunity to certify or deny that any discharges from the project to regulated waters will comply with applicable federal water quality standards. The statute recognizes the distinctive roles of the federal and state governments in the environmental review of infrastructure projects," said Don Santa, CEO of the Interstate Natural Gas Association of America.
"Recently, however, the balance between those roles has been disrupted and some states have viewed Section 401 as a means of determining which interstate pipeline projects are in the public interest and which are not...EPA's guidance is needed to restore efficient and consistent implementation of Section 401 reviews."
Alan Armstrong, CEO of Tulsa-based Williams, also cheered release of the EPA guidance.
"Many states provide sufficiently clear guidelines for preparing and processing Section 401 applications, but in other cases the process and scope of review is much less clear. Recent uncertainty that has arisen around the Section 401 process has generated confusion and ambiguity, while not necessarily ensuring water quality. Having the EPA issue this guidance to clarify and conform the Section 401 review process will enable all energy infrastructure operators to be better prepared to comply with this statutory program," Armstrong said.
The new guidance, which replaces EPA's previous interim guidance issued in 2010, also provides recommendations to federal agencies, states and authorized tribes to promote early collaboration and coordination through the 401 certification process.
EPA said it intends to propose regulations that may help further clarify and streamline CWA Section 401 certifications.