EPA Guidance on Clean Water Act Helps Restore Clarity

On June 7, pursuant to Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” the U.S. Environmental Protection Agency (EPA) issued guidance for federal permitting agencies and state and tribal authorities, replacing the nearly decade-old interim Clean Water Act (CWA) Section 401 guidance. EPA’s new guidance on CWA Section 401 is intended to restore the regulatory balance between federal and states authorities, while also promoting efficiency and predictability in the permitting process that is the linchpin for obtaining all necessary approvals to construct much needed infrastructure – including interstate natural gas pipelines.

The guidance addressed three specific areas:

  1. Statutory and regulatory timelines for review and action on a CWA Section 401 certification;
  2. The appropriate scope of CWA Section 401 certification conditions; and
  3. Information within the scope of a state or authorized tribe’s CWA Section 401 review.

INGAA President and CEO Don Santa explained in a statement:

"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.

“Recently, however, the balance between those roles has been disrupted and some states have viewed Section 401 as means of determining which interstate pipeline projects are in the public interest and which are not.”

Predictability is a top concern for pipeline developers, pipeline customers and investors. Without clear and consistently applied guidance and regulations on the roles, responsibilities and requirements under Section 401, the certification process can be abused in a way that is harmful to interstate commerce and deprive communities of the significant, long-term economic benefits associated with natural gas infrastructure. Clarifying the Section 401 certification process can help ensure that clean-burning, affordable natural gas is available to all American consumers.

Santa commented:

EPA’s guidance is needed to restore efficient and consistent implementation of Section 401 reviews. Accordingly, we welcome this guidance as clear guideposts for federal, state and tribal authorities are needed that respect and support the important and distinctive roles of each participant."

The issuance of EPA’s CWA Section 401 guidance is an important development that comes at a critical time. EPA’s guidance is a first step toward restoring cooperative federalism by clarifying the roles and responsibilities established by Congress in Section 401 of the CWA. Proposed amendments to the Section 401 regulations are anticipated in early August.