The Environmental Protection Agency (EPA) has released a proposed rule on Section 401 of the Clean Water Act (CWA) that it said seeks to increase the transparency and efficiency of the Section 401 certification process and to promote the timely review of infrastructure projects.
"Our proposal is intended to help ensure that states adhere to the statutory language and intent of the Clean Water Act," said EPA Administrator Andrew Wheeler. "When implemented, this proposal will streamline the process for constructing new energy infrastructure projects that are good for American families, American workers, and the American economy."
The proposed rule comes two months after EPA released guidance on Section 401 that provided recommendations to clarify and streamline the oil and natural gas infrastructure permitting process.
The CWA’s Section 401 Certification Guidance for Federal Agencies, States, and Authorized Tribes covered statutory and regulatory timelines for review and action on Section 401 certification, the appropriate scope of Section 401 certification conditions, and information within the scope of state or authorized tribe's Section 401 review.
The guidance stemmed 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401 of the CWA gives states and authorized tribes a direct role in federal permitting and licensing processes, but "outdated federal guidance and regulations...are causing confusion and uncertainty and are hindering the development of energy infrastructure," Trump said at the time.
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 the rule to be finalized by May 2020.
Industry groups are supportive of the proposed rule.
"While the statute recognizes the distinctive roles of the federal and state governments in the environmental review process, the balance between those roles has recently 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," said CEO Don Santa of the Interstate Natural Gas Association of America. "EPA’s draft rule is necessary to restore efficient and consistent implementation of Section 401 reviews. We welcome today’s action to clarify the discrete roles of federal, state and tribal authorities throughout the Section 401 review process."
CEO Dena Wiggins of the Natural Gas Supply Association, said the rule would restore Section 401 certification to its intended purpose of ensuring water quality while enabling the development of critical infrastructure.
"Clearly establishing a very reasonable one-year deadline for states to act on water quality concerns related to project permits reaffirms states' roles while helping to prevent instances where states have misused the certification process as a political tool to indefinitely delay or block a much needed project,” Wiggins said. “The regulatory change will enhance the predictability and efficiency of the permitting process for interstate natural gas pipelines and will allow states and federal authorities to do their jobs of protecting water quality.”
Christopher Guith, acting president of the U.S. Chamber of Commerce's Global Energy Institute, also voiced support for the proposed rule.
"Congress never intended for Governors to use the Clean Water Act as a political tool to block projects for reasons unrelated to clean water. We support EPA's new rule to prevent more abuse, facilitate construction of necessary energy infrastructure and continue economic growth."
Environmental groups remain opposed to the proposed rule change.
"This attack on one of our most fundamental clean water protections seeks to severely limit states’ ability to protect their water, at a time when climate change, water scarcity, and pollution make access to clean water more important than ever," said Sierra Club Executive Director Michael Brune. "It’s expected that we can’t trust the polluting corporations behind these dirty, dangerous projects to protect our water, but it’s disastrous that we can’t trust our own president to do so, either.”
EPA said it will accept public comment on the proposed rule for 60 days following publication in the Federal Register.