Environmental Regulation
New EPA Rule Narrows States' Time Frames for Energy Project Reviews
The U.S. Environmental Protection Agency has issued a final rule that tightens the timeline and scope for states and tribes to certify that pipelines and other energy infrastructure projects meet water-quality requirements under Section 401 of the Clean Water Act.
Energy groups praised the regulation, which EPA announced on June 1, but environmental organizations blasted it.
The new rule says that states can take no more than one year to finish their reviews. After a state certification request or waiver, the next step is a federal decision on a permit, usually by the Army Corps of Engineers or the Federal Energy Regulatory Commission.
The certification issue was central to a long running dispute involving dam removals in Oregon and California on which a federal appeals court ruled last year.
EPA Administrator Andrew Wheeler told reporters in a briefing that some states have delayed project certifications “for the purpose of inappropriately shutting down infrastructure projects.”
But 23 state attorneys general opposed the narrowed role for states in comments on the rule during its proposal period, contending that reviews can take longer than one year, and threatened to sue if the mandate became final, say attorneys from Sidley & Austin in a June 2 analysis.
The regulation is to take effect 60 days after it is published in the Federal Register.
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Alex Oehler, the Interstate Natural Gas Association of America’s interim chief executive officer, welcomed the regulation. He said that it "clarifies the roles of federal, state and tribal authorities during the Section 401 certification process, realigning those roles with the statute."
But Jon Devine, Natural Resources Defense Council’s director of federal water policy, called the regulation “a dangerous mistake.”
Devine said the new rule “guts states’ and tribes’ authority to safeguard their waters, allowing [the Trump administration] to ram through pipelines and other projects that can decimate vital water resources.”
Asked whether NRDC plans to challenge the rule in court, Devine said in an emailed response to ENR, "We are considering the rule and evaluating the claimed legal basis for it and will be making a decision on next steps."
