Coatings Industry News

Main News Page


Environmentalists Threaten Suit Over Waterway Permits

Monday, February 22, 2021

Comment | More

At the beginning of the month, a coalition of environmental groups alerted the Biden administration that they would file suit if the Army Corps of Engineers failed to reconsider Trump-era permits in relation to waterway protection and industry activity.

The notice of intent targets 16 nationwide permits allowing discharge from oil and gas development projects and was filed by the Center for Biological Diversity, Sierra Club and Natural Resources Defense Council, among others.

“While the groups are hopeful that this process will result in important changes to the program, if the Corps continues to ignore its duty to properly account for the harm nationwide permit activities pose to species, then litigation may be necessary,” the coalition wrote in its release.

Waterway Protection Rollbacks

Starting back in August 2019, the Environmental Protection Agency issued several proposals—including revisions to New Source Review regulations and changes to certifications under the Clean Water Act—that would have a direct impact on power plant and gas pipeline construction.

One of them suggested making changes in the process through which states give Section 401 certifications for projects under the Clean Water Act.  The proposed CWA rule limits state regulatory considerations for natural gas infrastructure and was expected following Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth,” from President Donald J. Trump, which was issued in April.

gnagel / Getty Images

At the beginning of the month, a coalition of environmental groups alerted the Biden administration that they would file suit if the Army Corps of Engineers failed to reconsider Trump-era permits in relation to waterway protection and industry activity.

After the Trump administration rolled back nearly 95 environmental rules, in January, the EPA stated it would be reducing the number of waterways receiving federal protection under the Clean Water Act.

Specifically, the administration had finalized a rule to remove environmental protections from ephemeral bodies of water—meaning bodies of water that only form after rainfall or only flow part of the year. However, the revision also applies to streams, wetlands, groundwater, waste treatment systems and priorly converted cropland and farm watering ponds.

While the decision reportedly pleased farmers, fossil fuel producers and real estate developers who previously disagreed with Obama-era rules, 14 states sued the EPA regarding the change, claiming that the decision ignores science, legislation and removes basic protections under the CWA.

At the time, the EPA Science Advisory Board wrote a draft letter regarding the rule change, stating it “decreases protection for our Nation's waters and does not support the objective of restoring and maintaining 'the chemical, physical and biological integrity' of these waters."

The rule was slated to be replaced by Trump’s “Navigable Waters Protection Rule.”

In May, the Natural Resources Defense Council, along with its partners, announced that they had filed a lawsuit against the EPA and the Army Corps of Engineers over the rule. According to the NRDC, the Navigable Waters Protection Rule—which the council refers to the “Dirty Water Rule”—excludes millions of miles of rain-dependent streams and millions of acres of flood-preventing, pollution-trapping wetlands from safeguards outlined in the CWA.

In the lawsuit, both the EPA and the Corps were accused of violating the Administrative Procedure Act and the CWA when promulgating the Navigable Waters Rule. The violations are specifically pointed to the agencies’ disregard for the Navigable Waters Rule’s impacts on the integrity of the nation’s waters, which removes protections for waters and overlooks science-based findings reported in the CWA.

Other points made in the lawsuit include the misrepresentation and disregard for the EPA’s Science Advisory Board advice, inconsistencies regarding protected and unprotected waters and lack of clarity to successfully implement.

The following month, former EPA Administrator Andrew Wheeler announced that the agency had issued a final rule that will both promote the construction of energy-based infrastructure projects and protect waterways across the nation.

According to Wheeler, the final rule moved 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.”

With the updated ruling, States are now no longer able to use the law to object to projects “under the auspices of climate change.”

At the time, American Gas Association President and Chief Executive Karen A. Harbert said in a statement, “The new final rule will end the practice of states misusing Section 401, putting political ideology and the goal of blocking natural gas pipelines over the important task of protecting our nation’s water quality.”

The final rule now:

  • 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; and
  • Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

Although, issuing the final rule wasn’t favored among all. According to reports, many Democrats and environmental groups opposed the ruling, as the original Section 401 of the Clean Water Act was critical in protecting state drinking water quality. In addition, the final rule will also burden states with limited resources in conducting project evaluations in reduced time restrictions.

Some believe that the EPA will have a difficult time should the ruling be legally challenged, as the Supreme Court explicitly affirmed states’ authority to impose conditions on projects based on state law in 1994.

What’s Happening Now

According to Jared Margolis, a senior attorney at the Center for Biological Diversity, the Trump administration violated bedrock environmental laws when it reissued nationwide permits, which directly affect waterways and wildlife.

The coalition is particularly concerned about whether the permits meet requirements under the Endangered Species Act to protect critical habitat.

“I’m hoping President Biden will prevent the Corps from continuing to use the permits to rubber-stamp major projects like oil pipelines that leak and spill, degrading the clean water that people and wildlife need,” Margolis said in a statement.

However, on the first day of his presidency, Biden called for a review of the 16 permits and other Trump-era environmental decisions in his Executive Order on “Protecting Public Health and the Environment and Restoring Science to Tackle the Climate Crisis.”

In the order, Biden directs that all executive departments and agencies immediately review and take appropriate action to address the promulgation of Federal regulations and other actions during the last 4 years that conflict with these important national objectives, and to immediately commence work to confront the climate crisis.

“While the groups are hopeful that this process will result in important changes to the program, if the Corps continues to ignore its duty to properly account for the harm nationwide permit activities pose to species, then litigation may be necessary,” the coalition said in its release.

The Army Corps failed to respond to a request for comment by The Hill in regard to the suit’s notice of intent.

   

Tagged categories: Clean Water Act; Environmental Controls; Environmental Protection; EPA; Lawsuits; NA; North America; President Biden; President Trump; U.S. Army Corps of Engineers

Comment Join the Conversation:

Sign in to our community to add your comments.


Advertisements
 
Axxiom Manufacturing

 
HoldTight Solutions Inc.

 
Sauereisen, Inc.

 
Abrasives Inc.

 
 
 

Technology Publishing Co., 1501 Reedsdale Street, Suite 2008, Pittsburgh, PA 15233

TEL 1-412-431-8300  • FAX  1-412-431-5428  •  EMAIL webmaster@paintsquare.com


The Technology Publishing Network

PaintSquare the Journal of Protective Coatings & Linings Paint BidTracker

 
EXPLORE:      JPCL   |   PaintSquare News   |   Interact   |   Buying Guides   |   Webinars   |   Resources   |   Classifieds
REGISTER AND SUBSCRIBE:      Free PaintSquare Registration   |   Subscribe to JPCL   |   Subscribe to PaintSquare News
MORE:      About PaintSquare.com   |   Privacy Policy   |   Terms & Conditions   |   Support   |   Site Map   |   Search   |   Contact Us