This month, the Environmental Protection Agency (EPA) announced proposed regulations to clarify Section 401 of the Clean Water Act. These amendments are necessary to modernize EPA’s outdated regulations which have been used by a small number of states to deny water quality certifications for certain energy infrastructure projects, including new pipelines.
Section 401 of the Clean Water Act authorizes states and tribes to certify or deny that any discharges from the project will comply with applicable water quality standards before federal permits may be issued. The proposed regulations clarify that states and tribal nations must act on water quality certification requests within “a reasonable period of time” which is to not exceed one year.
The EPA’s proposed regulations clarify that federal agencies may determine either categorically or on a case-by-case basis what constitutes a “reasonable period of time” based on several factors. Some of these factors include the complexity of the proposed project and the potential need for additional evaluation of water quality impacts from the discharge.
The proposed regulations also clarify that these analyses must be limited to water quality issues. Furthermore, if a state or tribe denies a water quality certification for a proposed project, it must provide a written explanation of how the proposed project will not comply with water quality standards, including a citation to the law that authorizes the condition and must identify any additional data that the state or tribe would need to verify that the discharge will comply.
INGAA President Don Santa welcomed the EPA’s proposed rule stating, “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."
Others in the pipeline and related infrastructure industries also embraced the EPA’s recent action to clarify Section 401 of the Clean Water Act:
“Too often, the vaguely worded Section 401 has been used as an excuse to block critical infrastructure and trade projects. By setting clear guidelines, the EPA is empowering manufacturers to invest in our people and communities with confidence and to work with state leaders to protect our water and environment.” – Jay Timmons, president of National Association of Manufacturers
“With today's proposed rule, [EPA] took meaningful steps to provide consistency and predictability to the permitting process for energy infrastructure." – Scott Segal, director of the Electric Reliability Coordinating Council
“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.” – Christopher Guith, acting president of the U.S. Chamber of Commerce’s Global Energy Institute
Lawmakers supported the federal agency’s proposed rule as well:
“The Clean Water Act is being hijacked by a number of coastal states to block energy projects. This coastal blockade cannot continue. It threatens America's energy dominance and unfairly harms energy workers in Wyoming and other states." – Sen. John Barrasso (R-WY), Chairman Senate Environment and Public Works Committee
“It is encouraging to see the EPA moving forward with this proposal according to President Trump’s timeline. We cannot let states hijack energy infrastructure without legitimate cause and prevent the United States from continuing its energy revolution." – Sen. Kevin Cramer (R-ND)
If finalized as proposed, the Section 401 regulations will clarify the roles, responsibilities and timeline for the water quality certification process for proposed pipelines and energy infrastructure. Clarifying these requirements will eliminate some of the obstacles to constructing natural gas pipelines in New York and New England, where pipeline projects have been delayed by state inaction on water quality certification requests. The lack of sufficient energy infrastructure in this region has caused those states’ consumers to pay some of the highest energy prices in the country. INGAA applauds the EPA for making these necessary clarifications to the Clean Water Act’s Section 401 review process.