States fight Trump water quality rule meant to clear energy project delays

A coalition of 21 attorneys general has filed suit in federal district court to block the Trump administration's efforts to rein in state delays of energy infrastructure through their water quality reviews under the federal Clean Water Act.

Contending states have abused water quality authority under the CWA to block projects, the Trump administration in June advanced a final Environmental Protection Agency rule that would limit the timing and scope of state reviews.

But the AGs contended in their July 21 suit that the final rule upends 50 years of cooperative federalism by arbitrarily re-writing EPA's existing water quality regulations to unlawfully curtail state authority under the act.

The suit was filed in the US District Court for the Northern District of California by the states of California, Washington, New York, Colorado, Connecticut, Illinois, Maine, Maryland, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Wisconsin, the Commonwealths of Massachusetts and Virginia, the District of Columbia, and the California State Water Resources Control Board (State of California, et al., v. Andrew Wheeler, 3:20-cv-04869).

State contentions

The litigation contends Congress expressly preserved for each state authority to adopt or enforce restrictions it deems needed to protect its state waters, so long as those are at least as protective as federal standards.

"The rule violates the act and unlawfully usurps state authority to protect the quality of waters within their borders," despite the fact that EPA and the courts have long recognized the broad scope of states' authority and ability to impose conditions, including those related to appropriate requirements of state law, they argued.

Further, they contended the rule would interfere with states' ability to apply their own administrative procedures, instead imposing onerous federal control. In particular, they raised concern about restrictions on states' abilities to obtain additional information needed from applicants.

And, the AGs contended the rule bars states from considering how a project as a whole will impact state water quality, limiting the scope to point source discharges into narrowly defined waters of the US, contrary to language of the act and Supreme Court precedent.

The litigation by the states follows suits by environmental groups, including those filed separately by American Rivers and Delaware Riverkeeper Network in federal district courts in California and Pennsylvania. Further litigation is expected from environmental groups.

June regulation

Under the 289-page regulation released June 1, state or tribal authorities would have to take action on a certification request within a year of receiving an application, although a shorter timeframe could also be defined at the outset. The scope of the state or tribal action would be limited to ensuring discharges from a point source comply with water-quality requirements.

Oil and gas industry groups were hopeful the rule's well-defined timeline and review process would provide more certainty, while several policy analysts anticipated mostly modest impacts for interstate gas pipelines. The rule's tighter timelines will likely speed up the CWA Section 401 application process, but the efforts to shape the certification criteria states use are "legally tenuous," Height analysts said at the time.

Among gas projects previously ensnared in disputes over state water quality reviews were Williams' Constitution Pipeline and Northeast Supply Enhancement projects, and National Fuel Gas Supply's Northern Access 2016 project.