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New water quality certification rules have been issued by the EPA to halt the political blocking of pipeline construction by the likes of Andrew Cuomo.
In April 2019, President Trump signed an Executive Order (EO) instructing the Environmental Protection Agency to review Section 401 of the Clean Water Act–the section that grants states (and tribes) the right to have a say in pipeline projects. In keeping with the EO, the EPA issued a draft new rule in August 2019 tightening up standards used in Section 401, creating new boundaries so states like New York and Washington can’t continue to “color outside the lines” by rejecting pipelines for political reasons, as they have both done. Yesterday, the EPA released the final version of the new rule.
As EPA Administrator Andrew Wheeler says below, Section 401’s original purpose is to review potential impacts that discharges from federally permitted projects may have on water resources. States like NY have bastardized Section 401 and used it to indefinitely delay or block critically important infrastructure. The new EPA rule closes those loopholes and forces misbehaving governors (like Andrew Cuomo) to stop their abuses.
From the EPA (emphasis added):
Today, after speaking with U.S. stakeholders via conference call, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced a final rule that will help accelerate and promote the construction of important energy infrastructure across the United States, while ensuring the nation’s waterways are protected. The agency’s final rule increases the transparency and efficiency of the Clean Water Act Section 401 (Section 401) certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation.
“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. “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.”
EPA finalized this rule pursuant to the direction of Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” In this Executive Order, President Trump directed EPA to review Section 401 and EPA’s related regulations and guidance to determine whether the agency’s policies should be updated or clarified. In this final rule, EPA conducted the first comprehensive analysis of the text, structure and legislative history of Section 401. The final rule:
- Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request.
- Clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act.
- Explains EPA’s roles under Section 401.
- Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.
- Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.
To read the final rule and to learn about the Clean Water Act Section 401 water quality certification process, please visit https://www.epa.gov/cwa-401.
Clean Water Act Section 401 gives states and authorized tribes authority to assess potential water quality impacts of discharges from federally permitted or licensed projects that may affect navigable waters within their borders. Properly implemented, Section 401 is an important tool that can be used to help protect water quality while allowing federal permitting and licensing processes to proceed in a timely manner.
At the time the Executive Order was issued, EPA’s water quality certification regulations were nearly 50 years old and did not reflect the statutory language in Section 401. Prior to issuing its proposed rule, EPA held consultations with state, local and tribal partners and engaged with federal partners on this rulemaking effort. The agency also invited written pre-proposal recommendations through a public docket. EPA received more than 120,000 public comments on the proposed rulemaking and carefully reviewed all comments received in completing this final rule.
A copy of the new, final Section 401 rule (all 289 pages) may be found here.
Swamp-dwellers in “mainstream” (Democrat) media hate the new rule, which means the new rule is good for America:
The Trump administration gutted a key portion of the Clean Water Act on Monday, limiting states’ ability to block controversial pipeline projects that cross their waterways.
The final rule from the Environmental Protection Agency (EPA) targets Section 401 of the law, which lets states halt projects that risk hurting their water quality.
It’s been a target of President Trump, who last April ordered the agency to accelerate and promote the construction of pipelines and other important infrastructure.
“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,” EPA Administrator Andrew Wheeler said in a statement.
The Clean Water Act essentially gives states veto power over large projects that cut through their rivers and streams, giving them a year to weigh permits and determine how projects would impact their water quality.
Environmentalists see it as a way for states to assert their power to block risky projects, but the fossil fuel industry and many Republicans say the section has been abused to stall infrastructure.
“This rule is an egregious assault on states’ longstanding authority to safeguard the quality of their own waters. Despite the Trump administration’s professed respect for ‘cooperative federalism,’ it is clearly willing to steamroll states’ rights and greenlight major construction projects with no regard for how they might damage state waters,” Lisa Feldt with the Chesapeake Bay Foundation said in a statement.
Two states run by Democrats have recently used the law to sideline major projects: New York denied a certification for the Constitution Pipeline, a 124-mile natural gas pipeline that would have run from Pennsylvania to New York, crossing rivers more than 200 times. Washington state also denied certification for the Millennium Coal Terminal, a shipping port for large stocks of coal.
The new policy from the Trump administration would accelerate timelines under the law, limiting what it sees as state power to keep a project in harmful limbo. The need for a 401 certification from the state will be waived if states do not respond within a year.
On a call with reporters, Wheeler accused some states of abusing the law, dragging out the certification for years or denying projects for reasons not sufficiently tied to water quality, “wrapping projects in a bureaucratic Groundhog Day in the hopes that investors become frustrated and end development.”
States will still be able to block certain projects, but Wheeler warned states risk having their veto power overturned if they stray beyond water quality issues when denying a certification. Climate change or concerns over water scarcity would not be enough for a state to deny certification to a project, he said.
“Our system of Republican democracy, does not allow for one state to dictate standards or decisions for an entire nation,” Wheeler said.
Mark Ryan, a lawyer who specializes in the Clean Water Act and who spent two decades working at the EPA, said the new rule shifts the balance of power, putting project applicants in a stronger position to drag out the process by running out the clock on states, which will no longer be able to object to projects after a year.
“This changes the balance of power that has existed over the last 40 years from the states to the applicants,” he said, adding that applicants may be incentivized to withhold information from their application, leaving a state stuck waiting for information.
“I think it’s very low probability they’ll get this past the Supreme Court,” Ryan said.
The changes in the new rule mirror those asked for by both the fossil fuel industry and some Republican lawmakers with strong industry presence in their states.
“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,” the American Petroleum Institute, which represents oil and natural gas companies, said in a release Monday.
Governors and state attorneys general pushed back against the rule when it was first proposed in August, reiterating vows to sue.
“The law is absolutely clear — states have both the right and the responsibility under the Clean Water Act to preserve our environment and protect public health. The White House’s relentless attacks cannot change that,” Washington Gov. Jay Inslee (D) and Attorney General Bob Ferguson (D) said in a joint statement when the rule was first proposed.
Environmental groups on Monday said the Trump administration is trampling states’ rights.
“This is a dangerous mistake. It makes a mockery of this EPA’s claimed respect for ‘cooperative federalism,’” the Natural Resources Defense Council said in a statement.
“This action undermines how our foundational environmental laws work. The federal government should be setting baseline standards, while states apply and enhance them to the benefit of their unique natural resources and residents.”
Here’s some of what supporters of the new rule, including three governors, say about it, a counterbalance to the fossil fuel haters on the left:
Today, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler announced a final rule that will help accelerate and promote the construction of important energy infrastructure across the United States, while ensuring the nation’s waterways are protected. The agency’s final rule increases the transparency and efficiency of the Clean Water Act Section 401 (Section 401) certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation.
Wyoming Governor Mark Gordon: “Wyoming values clean water– we have some of the cleanest in the nation, and as a headwaters state we understand our responsibility to our neighbors. This updated rule is centered on States’ delegated authority to focus on clean water issues. The improvements made under the rule close loopholes in Clean Water Act Section 401 certification processes that some states were using inappropriately to extend their own jurisdiction beyond their own boundaries, all too often for political more than purely environmental concerns. I worked with Congress and EPA over the last year to find potential solutions to Section 401 implementation. This update modernizes EPA’s guidance to reaffirm States’ jurisdiction over water resources within their borders. I thank Administrator Wheeler and Senator Barrasso for their efforts to bring resolution to this very important issue.”
Oklahoma Governor Kevin Stitt: “We appreciate President Trump and Administrator Wheeler for finalizing this vital reform to the Section 401 certification process under the Clean Water Act. This new rule preserves states’ rights to truly protect water quality, while ensuring one state cannot disrupt interstate commerce simply because it dislikes the product being sold or transported. We strongly support reasonable time and scope limitations on the Section 401 certification process to provide a fair, reasonable and consistent process for all states.”
North Dakota Governor Doug Burgum: “This much-needed reform will streamline the permitting process for essential energy infrastructure, allowing us to strengthen North Dakota’s role as a powerhouse for the nation in a way that protects the environment. We appreciate the Trump administration and EPA for modernizing Section 401 to align with the original intent of the Clean Water Act – to protect and preserve our nation’s water quality – while supporting responsible development, economic growth and U.S. energy dominance.”
This post appeared first on Natural Gas Now.