The Environmental Protection Agency (EPA) has issued a final rule on Section 401 of the Clean Water Act (CWA) that it said would increase the transparency and efficiency of the Section 401 certification process and to promote the timely review of infrastructure projects.
The final rule comes a year after EPA issued 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 2019 in an effort to accelerate approvals for natural gas infrastructure. With the order, Trump took aim at state authority over water quality certifications, which had stymied, among other things, natural gas pipeline projects in New York.
“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” said EPA Administrator Andrew Wheeler on Monday. “Today, we are following through on President Trump’s executive order to curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward.”
The water quality certification regulations “were nearly 50 years old and did not reflect the statutory language in Section 401,” the EPA said. The proposed rule was issued last August.
Industry groups, including the American Petroleum Institute (API) and the Natural Gas Supply Association (NGSA) have been supportive of the rule.
The API “believes this rule will provide a rigorous, consistent and transparent process for water quality certifications for energy developers and manufacturers, while ensuring that the public plays an important role in the regulatory process,” said API’s Robin Rorick, vice president for midstream and industry operations. “We support the Clean Water Act, and though certain states have continued to go well beyond its scope for water quality certifications, we hope the addition of a well-defined timeline and review process will provide certainty to operators as they develop infrastructure projects that meet state water quality standards.”
NGSA CEO Dena Wiggins said the organization “supports these much needed clarifications, including reaffirming the timelines for review and action, and clarifying the scope of review. EPA’s efforts to promote early engagement and regulatory certainty 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.”
Environmental groups, on the other hand, remain opposed to the rule change.
“The Trump administration continues to be more interested in handouts for polluting corporations than protecting our drinking water,” said Sierra Club spokesperson Joan Walker. “This erosion of our fundamental clean water protections drastically limits states’ ability to protect their water at a time when access to clean water is more important than ever.”
The final rule goes into effect 60 days following publication in the Federal Register.
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