The US Environmental Protection Agency proposed a new rule on Aug. 22 that it said was intended to update and clarify substantive and procedural requirements for water-quality certification under Section 401 of the 1972 Clean Water Act. The section gives states, and Indian tribes that have been approved to be treated as states, authority to review applications for proposed projects requiring a federal discharge permit for US waters in their areas.
It’s a controversial provision that some groups say a few states have used to delay or stop interstate natural gas pipelines or other energy transportation projects within a state’s borders for political reasons. It also looks unlikely this proposal will resolve the impasse. EPA will accept comments on it through Oct. 21.
Washington-based Energy Equipment & Infrastructure Alliance launched a campaign to support the proposal. “There’s no doubt that some states are using ambiguous provisions in the [CWA] to stop pipeline projects,” EEIA Pres. Toby Mack said.
“They’ve also taken liberties with requirements for expeditious permit processing by dragging out the application process. These new rules would tighten the process up considerably and keep it in line with the clear intent of the act,” Mack said.
EPA said the proposal “is intended to increase the predictability and timeliness of Section 401 certification by clarifying timeframes for certification, the scope of certification review and conditions, and related certification requirements and procedures.”
It noted that the section’s plain language declares that a state or authorized tribe “must act on a Section 401 certification request within a reasonable period of time, which shall not exceed one year.” But the provision does not guarantee a state or tribe a full year to act on a certification request, it continued.
What’s reasonable
The proposal said the statute only grants as much time as is reasonable, and federal licensing or permitting agencies, in their discretion, may establish a time period shorter than a year if the federal licensing and permitting agencies determine that a shorter period is “reasonable.”
The law states that a Section 401 certification request’s action timeline begins once the request is received. If a state or tribe does not grant, grant with conditions, deny, or expressly waive the Section 401 certification within a reasonable time period as determined by the federal licensing and permitting agencies, Section 401 authorizes those agencies to find that the state or tribe waived the certification requirement and issue the federal license or permit, EPA’s proposal said.
It noted that states, tribes, and interstate associations said deficient certification applications were a main cause for delays. Staffing also is low in many state and tribal programs, they added.
Nick Snow
NICK SNOW covered oil and gas in Washington for more than 30 years. He worked in several capacities for The Oil Daily and was founding editor of Petroleum Finance Week before joining OGJ as its Washington correspondent in September 2005 and becoming its full-time Washington editor in October 2007. He retired from OGJ in January 2020.
