The U.S. Environmental Protection Agency (EPA) and Department of the Army have issued a proposed redefinition of the Waters of the United States (WOTUS) under Section 401 of the Clean Water Act (CWA) in a move that has the potential to affect natural gas infrastructure projects. 

Environmental Protection Agency

Before closing off 2022, the EPA and Army in the Federal Register issued a preliminary “durable definition” of WOTUS “to reduce uncertainty from changing regulatory definitions,” the EPA said. 

The final rule would expand the EPA and Army’s regulatory oversight to include traditionally navigable waters, territorial seas, interstate waters and, notably, “upstream water resources that significantly affect those waters,” according to the EPA.

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“When Congress passed the Clean Water Act 50 years ago, it recognized that protecting our waters is essential to ensuring healthy communities and a thriving economy,” said EPA Administrator Michael Regan. “Following extensive stakeholder engagement, and building on what we’ve learned from previous rules, EPA is working to deliver a durable definition of WOTUS that safeguards our nation’s waters, strengthens economic opportunity and protects people’s health while providing greater certainty for farmers, ranchers and landowners.”

The Legislative Trail 

The updated definition comes after years of regulatory back-and-forth on the federal CWA.

In 2015, the Obama administration supplied a definitional amendment to “provide critical context and guidance in determining the appropriate scope” of WOTUS that is covered by the CWA. 

The definition expanded EPA and Army regulatory reach to cover streams and wetlands in accordance with “peer-reviewed science and practical experience” demonstrating “upstream waters…significantly affect the chemical, physical and biological integrity of downstream waters,” the ruling reads.

In April 2019, former President Trump targeted the definition with Executive Order (EO) 13868, which took aim at state authority over water quality certifications to gain approvals for natural gas infrastructure. The EO in 2020 was further ensconced following a rulemaking by the EPA under the Trump administration, known as the Navigable Waters Protection Rule (NWPR). 

Oil and gas organizations at the time voiced their support for the NWPR after years of complaints that state governments opposed to energy infrastructure improperly relied on the scope of the CWA to obstruct the pipeline permitting process.  

Following the steps of his predecessor, President Biden on his first day in office signed EO 13990, aka Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis, granting the EPA and Army the authority to once again review and rescind the NWPR.

The EPA last June began the rulemaking process on updating the definition. A final decision from the EPA is expected in June, with the Army’s decision on issuance of Nationwide Permit (NWP) 12 under Section 404 of the CWA expected this August.

Initial Feedback

In a note to clients, ClearView Energy Partners LLC said the Army and EPA’s changes “underpin many of the pipelines” and are “a key element in state permits for linear infrastructure.”

Sen. Shelley Moore Capito (R-WV), called the EPA’s ruling “the latest round of regulatory overreach…” 

Moore, Sen. Joe Manchin’s (D-WV) Republican counterpart, has also pushed to reform the permitting process to expedite the long-delayed Mountain Valley Pipeline

“Reform is badly needed for infrastructure, transportation and energy projects of all kinds to move forward. Unfortunately, this rule would move us backwards by making more projects subject to federal permitting requirements and adding more bureaucratic red tape,” Capito said. 

The American Petroleum Institute (API) also reacted to the rule. 

In a note to NGI, API’s Cole Ramsey, vice president of Upstream Policy, said, “The U.S. natural gas and oil industry is committed to protecting the environment through the responsible development of our natural resources, but the politicization of this rule and continuous shift in policy from administration to administration only increases uncertainty for project developers. 

“This lack of clarity is a hindrance to environmental protection efforts and further complicates the already burdensome federal permitting process for critical infrastructure projects, including much-needed energy infrastructure development.”

Meanwhile, Clean Water Action, a campaign organization launched in 1972 to promote the CWA, applauded the Biden administration’s efforts to repeal “the Trump administration’s ‘Dirty Water Rule.’” National Water Programs Director Jennifer Peters noted the NWPR “decimated water quality protections for most wetlands and streams, including those that feed vital drinking water sources.”

The preliminary ruling is available for public comment until Feb. 7. The proposal, once approved, would come into effect 60 days following its publication in the Federal Register.