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EPA proposes rule to keep states from blocking pipelines, energy projects

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EPA proposes rule to keep states from blocking pipelines, energy projects

The U.S. Environmental Protection Agency issued a proposed rule to help infrastructure developers overcome permitting hurdles in states such as New York, which has used its Clean Water Act authority to stop natural gas pipeline projects approved by the federal government.

The Aug. 9 proposed rule followed an executive order President Donald Trump issued in April that asked the agency to speed up the construction of pipelines and other energy infrastructure projects, first through revised guidance and then through new rules under Clean Water Act Section 401.

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"Our proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act," EPA Administrator Andrew Wheeler said of the new measure.
Source: Associated Press

"Under President Trump, the United States has become the number one oil and gas energy producer in the world, while at the same time continuing to improve our air quality," EPA Administrator Andrew Wheeler said in a statement that the spokesman said would be formally released later Aug. 9. "Our proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act. When implemented, this proposal will streamline process for constructing new energy infrastructure projects that are good for American families, American workers, and the American economy."

Through the rule, the EPA proposed "to increase the transparency and efficiency of the 401 certification process and to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation," the agency said in the statement. The EPA will accept public comment on the proposal for 60 days after it is published in the Federal Register.

Among other things, the 163-page proposed rule would spell out when Section 401 certification is required, put in place a 30-day prefiling process, define the scope of the Section 401 review, outline the EPA's role in the process and encourage a timely review process. It would also place limits on states' requests for more information.

When a federal agency, such as the EPA, is in charge, the agency can establish a "reasonable period of time" by category or on a case-by-case basis, depending on the complexity and potential discharge from a project. That period will not exceed one year from the receipt of the permit application.

The EPA noted in the proposed rule that states, tribes and other organizations have advised against a mandate of a specific period of time, such as 60 days, that would apply to all types of projects.

The oil and gas industry embraced the rule proposal. Natural Gas Supply Association President and CEO Dena Wiggins said in an Aug. 9 emailed statement that the rule would "restore Section 401 certification to its intended purpose" of protecting water quality and enabling infrastructure development.

"Clearly establishing a very reasonable one-year deadline for states to act on water quality concerns related to project permits reaffirms states' roles while helping to prevent instances where states have misused the certification process as a political tool to indefinitely delay or block a much-needed project," Wiggins said. "The regulatory change will enhance the predictability and efficiency of the permitting process for interstate natural gas pipelines and will allow states and federal authorities to do their jobs of protecting water quality."

Don Santa, president and CEO of the Interstate Natural Gas Association of America, said the pipeline industry supports the proposed rule. "EPA's draft rule is necessary to restore efficient and consistent implementation of Section 401 reviews," Santa said in an email. "We welcome today's action to clarify the discrete roles of federal, state and tribal authorities throughout the Section 401 review process."

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The EPA's proposed rule followed an executive order from President Donald Trump in April that asked the agency to speed up the construction of pipelines and other energy infrastructure projects.
Source: Federal Energy Regulatory Commission

The American Petroleum Institute's Robin Rorick, vice president for midstream and industry operations, said, "A well-defined timeline and review process for water quality certifications are integral to developing infrastructure that reliably provides clean and affordable energy to American families and businesses every day."

Environmental groups showed that they are ready to fight the proposed rule. The Sierra Club's director, Michael Brune, spoke out against the proposal, saying in an Aug. 9 statement that "the Trump administration is undermining and attacking the Clean Water Act because it's more interested in padding corporate polluter profits than ensuring communities have access to safe drinking water."

Based on an early report of the proposal by The Wall Street Journal, the Natural Resources Defense Council tweeted that the "rollback proposal" could expect "criticism from states, tribal nations, and other stakeholders" in the comment period. An Ohio chapter of the Sierra Club, in a separate tweet, described it as "EPA ... weakening the Clean Water Act to limit states' ability to block pipeline projects."

The Trump administration has sought to counter states such as New York, which has withheld Clean Water Act certification from gas pipeline projects approved by the Federal Energy Regulatory Commission. In April 2016, New York rejected a permit application filed by the Williams Cos. Inc.-led Constitution Pipeline Co. LLC for a 124-mile pipeline project between Pennsylvania and New York and has rejected several others since then.