The Biden administration is moving to give states and tribal authorities more leeway in approving or denying permits for projects that include oil and natural gas pipelines that cross waterways.

Mountain Valley Pipeline

Under Section 401 of the federal Clean Water Act (CWA), states and authorized tribes have allowed to grant, deny or waive certification for proposed federal licenses or permits that may discharge into waters of the United States. 

However, the Trump administration last year set a maximum one-year timetable for states and tribes to affirm or deny permits. 

A joint memo issued last week by the U.S. Environmental Protection Agency (EPA) and the U.S. Army’s Civil Works office would allow states and tribal authorities to extend their reviews beyond one year. 

The nine-page memo follows EPA’s stated intention in May to revise the 2020 rule. Several states run by Democratic governors had called on President Biden to delay issuing finalized Nationwide Permits (NWP) and 40 permits under review for water crossings 

“While EPA moves expeditiously to revise the 2020 rule, it is essential that the agencies address pressing implementation challenges that have been raised by our co-regulators,” said EPA’s Radhika Fox, assistant administrator for the Office of Water. The memo “provides guidance to maximize flexibilities and support the authority of states and tribes to protect their waters.”

The memo was sent by Fox and Acting Assistant Secretary of the Army Jaime Pinkham, who oversees Civil Works. The Army Corps oversees some CWA permitting.

Section 401 “provides states and tribes with a powerful tool to protect the quality of their waters from adverse impacts resulting from federally licensed or permitted projects,” wrote Fox and Pinkham. “States, tribes and stakeholders have expressed significant concerns” about the length of time to review permits, among other things.

There are “circumstances under which states or tribes can take more than a year to approve permit applications coming directly from developers of projects like pipelines and power lines, or from the Army Corps for Nationwide Permits.”
Federal authorities “will consider additional guidance, as appropriate, to facilitate implementation of the 2020 rule,” along with 16 NWPs finalized in January before President Biden took office.

NWPs have faced increasing pushback in recent years from environmental groups and the courts. For example, an NWP for a stream crossing for Mountain Valley Pipeline LLC was put on hold last November pending another review by the U.S. Court of Appeals for the Fourth Circuit.

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MVP had received a certificate of convenience and necessity in 2017 from FERC. However, it has faced legal challenges in its efforts to construct the 300-mile, 2 million Dth/d interstate pipeline to move natural gas from West Virginia to an interconnect with the Transcontinental Gas Pipe Line in southwestern Virginia.

MVP had filed with the Federal Energy Regulatory Commission in February to amend its certificate approval as part of a broader plan to work around the prolonged legal process for the court-delayed NWP.

Earlier this month, FERC issued an environmental assessment for MVP, signing off on the project’s plans to use a different water crossing method at some locations along its route.