EPA Limits Opposition of Energy Infrastructure

FRIDAY, JUNE 5, 2020

On Monday (June 1), U.S. Environmental Protection Agency 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.

“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 Wheeler.

Executive Order 13868

According to The New York Times, the rule arrives a little over a year after President Donald J. Trump issued Executive Order 13868 on “Promoting Energy Infrastructure and Economic Growth.”

In the order Trump writes, “To enable the timely construction of the infrastructure needed to move our energy resources through domestic and international commerce, the Federal Government must promote efficient permitting processes and reduce regulatory uncertainties that currently make energy infrastructure projects expensive and that discourage new investment.”

Trump goes on to note on the nation’s current policy to promote private investments in energy infrastructure, water quality certifications, safety regulations, renewals and authorizations, in addition to other environmental, social and governance issues.

Specifically, the order covers Section 401 of the Clean Water Act, which provides that States and authorized Tribes have a direct role in Federal permitting and licensing processes to ensure that activities subject to Federal permitting requirements comply with established water quality requirements.

However, Trump notes that the section is outdated—having been enacted in 1948 and significantly reorganized in 1972—and causes confusion and uncertainty, thus hindering the development of energy infrastructure.

In his order, Trump advised that Wheeler consult with States, Tribes and relevant executive departments and agencies in reviewing the section, along with the EPA’s related regulations and guidance to determine whether any provisions thereof should be clarified to be consistent with redefined policies in the order.

The review was reported to have focused on:

  • the need to promote timely Federal-State cooperation and collaboration;
  • the appropriate scope of water quality reviews;
  • types of conditions that may be appropriate to include in a certification;
  • expectations for reasonable review times for various types of certification requests; and
  • the nature and scope of information States and authorized tribes may need in order to substantively act on a certification request within a prescribed period of time.

After the completion of the consultation and review process, Wheeler was then instructed to lead an interagency review, in coordination with the head of each agency that issues permits or licenses subject to the certification requirements of Section 401. Within 90 days after completing the review, Wheeler was to update their respective agencies’ guidance and issue a final ruling.

“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,” said Wheeler when the final rule was issued.

The Final Rule

As reported by the EPA, the agency has conducted the first comprehensive analysis of the text, structure and legislative history of Section 401.

According to Wheeler, the final rule moves 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.”

In a statement, American Gas Association President and Chief Executive Karen A. Harbert said, “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 oppose 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.

“It’s a pretty significant retreat from what they were doing the last 40 years,” said Mark Ryan, a Clean Water Act expert who served as regional counsel for the E.P.A. in its Pacific Northwest regional office.

California Attorney General Xavier Becerra also chimed in on the rule, saying, ““We won’t stand idly by as they rip away our authority under the law to preserve water quality.”

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.

To read the full final rule, click here. Readers can also view additional information about the Clean Water Act Section 401 water quality certification process, here.

Latest News in Water Policies

At the end of January, the Trump administration announced that it 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.

The following month, PaintSquare Daily News reported that the Trump administration had announced the roll back of nearly 95 environmental rules, with the EPA stating it would also be reducing the number of waterways receiving federal protection under the Clean Water Act.

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

The rule is slated to be replaced by Trump’s “Navigable Waters Protection Rule.” Both the EPA and the U.S. Army is slated to host a public webcast for the public to help explain the rule’s key elements on Feb. 13.

That same month, the United States Department of Agriculture and UEPA announced a Memorandum of Agreement (MOA) that aims to help water systems face the challenges of aging infrastructure, workforce shortages, increasing costs, limited management capacity and declining rate bases.

According to EPA’s news release, the decision supports its 50th anniversary and February theme of protecting the nation’s waters, which includes surface water protection, safe drinking water and water infrastructure investments.

Through the MOA, a formal collaboration has been created between the EPA and USDA as to help create short- and long-term sustainability in rural water systems. To achieve the implementation of innovative strategies and tools, the agreement focuses on four main areas:

  • Provide training and education resources, among others, to incorporate strategies into rural utility management;
  • Support of water system partnerships through community education and utility information on the array of tools available to support partnerships that can increase sustainability;
  • Support of the water sector workforce, in part by continuing to raise awareness of rural water sector careers through promotional initiatives; and
  • Support compliances with drinking water and clean water regulations, which includes making rural systems a funding priority.

However, despite the EPA’s efforts to aid aging water systems in the nation, the Natural Resources Defense Council, along with its partners, announced at the end of April that they had filed a lawsuit against the EPA and Army Corps of Engineers over the Navigable Waters Protection Rule.

The rule—currently defined in the Clean Water Act— intends to redefine navigable waters and is slated to go into effect on June 22.

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 have been 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.


Tagged categories: Clean Water Act; Environmental Controls; Environmental Protection; Environmental Protection Agency (EPA); EPA; EPA; Government; Infrastructure; NA; North America; Oil and Gas; Pipelines; President Trump; Project Management

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