EPA proposes rule to revise CWA Section 401 certification process

The US Environmental Protection Agency proposed a rule that would establish a 1-year deadline for decisions affecting proposed oil and gas and other transportation projects under the Clean Water Act’s Section 401 infrastructure certification process.

“Our proposal is intended to help ensure that states adhere to the statutory language and intent of the [CWA],” EPA Administrator Andrew R. Wheeler said on Aug. 9.

“By establishing an absolute outer bound of 1 year following receipt of a certification request, Congress signaled that certifying authorities have the expertise and ability to evaluate potential water-quality impacts from even the most complex proposals within a reasonable period of time after receipt of a request, and in all cases within 1 year,” the proposal said.

The law also provides that if a certifying authority “fails or refuses to act” within that period, the certification requirement is waived, it said. But the existing process does not define what constitutes a failure or refusal to act, the proposal said. It attempts to provide more clarity on what constitutes a reasonable period, explain how that is established, and more clearly define a failure or refusal to act.

CWA Section 401 gives states and authorized tribes the authority to assess potential water-quality impacts of discharges from federally permitted or licensed infrastructure projects that may affect navigable waters within the states’ or tribes’ borders, EPA noted. The agency’s existing certification rules have not been updated in nearly 50 years and are inconsistent with the text of CWA Section 401, leading to confusion and unnecessary delays for infrastructure projects, it said.

EPA proposed the rule in response to US President Donald Trump’s Apr. 10 executive order on promoting energy infrastructure and economic growth. Comments on the 163-page proposal will be accepted for 60 days following its publication in the Federal Register, which EPA expected to happen within a few days.

Association reactions

Several national oil and gas associations welcomed EPA’s proposal.

“EPA’s new rule continues to support a rigorous, consistent and transparent process for Section 401 water-quality certifications and maintains the vital role that states play in protecting water quality within their borders,” said Robin Rorick, American Petroleum Institute’s vice-president for midstream and industry operations.

Interstate Natural Gas Association of America Pres. Donald F. Santa said, “While the statute recognizes the distinctive roles of the federal and state governments in the environmental review process, the balance between those roles has recently been disrupted and some states have viewed Section 401 as a means of determining which interstate pipeline projects are in the public interest and which are not.”

Natural Gas Supply Association Pres. Dena E. Wiggins said, “Clearly establishing a very reasonable 1-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.”

Center for Liquefied Natural Gas Executive Director Charlie Riedl said, “We commend EPA for working to fix the parts of the state water certification process that were broken without compromising on environmental standards.”

American Gas Association Pres. Karen A. Harbert said, “We have a domestic supply of natural gas that is the envy of the world and the 401 process has been misused by a few states to hold up important infrastructure—denying our nation and our citizens the environmental and economic benefits that natural gas provides.”

Christopher Guith, acting president of the US Chamber of Commerce’s Global Energy Institute, said, “Congress never intended for governors to use the CWA as a political tool to block projects for reasons unrelated to clean water.”