November 2020, Vol. 247, No. 11


FERC Wants Limit on State Consideration of Quality Permits

By Stephen Barlas, Contributing Editor

WASHINGTON (P&GJ) — The Federal Energy Regulatory Commission (FERC) plans to apply the new federal Clean Water Act requirement to transmission pipelines, limiting state challenges to construction projects in and around wetlands.

In September, FERC proposed a rule that, if it becomes final, specifically applies to pipelines a general Environmental Protection Agency (EPA) rule finalized in June 2020. 

That rule gives states and localities one year to make a decision on a company’s water certification application for a construction project. If the state agency does not act one way or the other in one year, the federal permitting agency, whether the U.S. Army Corps of Engineers, FERC, Coast Guard or any other agency, is able to move forward on the project.

The Clean Water Act’s Section 401 gives states broad authority to ensure that large, federally approved projects will meet local water quality standards, pollution limits and other requirements. 

Through these certifications, states have required that federal dams preserve stream flows necessary for fish and aquatic life; that roads and other projects avoid, minimize and mitigate destruction of marshes and wetlands; and that industrial pollution sources and oil and gas pipelines control runoff and other harmful water pollution.

A number of environmental groups filed lawsuits against the EPA rule, which theoretically went into effect on Sept. 11. One filed by the Southern Environmental Law Center included as plaintiffs the National Resources Defense Council (NRDC). 

A former staffer of the NRDC was just nominated to fill one of the two open commissioner’s slots at FERC. Mark Drajem, a spokesman for NRDC, said the group is “taking a look at” FERC’s proposed rule.

A second lawsuit was filed by Earthjustice on behalf of a number of Native American tribes. In protesting the EPA rule, Earthjustice complained that EPA relied heavily on FERC actions – wrongly Earthjustice alleged – in arguing the positive merits of diminishing state and local authority over construction approval in wetland areas. Earthjustice wrote to the EPA in the wake of publication of its Section 401 proposed rule:

“Indeed, for gas pipelines under the jurisdiction of the Federal Energy Regulatory Commission (FERC) – which constitute three of the four case studies EPA cites in support of the proposed rule – Congress recently and explicitly affirmed the primacy of state and tribal Clean Water Act authority over these projects.”

EPA’s grant of prominence to FERC in its rationale for the Section 401 final rule makes it likely that the opponents of that rule – including Earthjustice and NRDC – will now transfer that opposition to FERC’s proposed rule. 

FERC, being a federal permitting agency, requires state water quality certifications. In the past, prior to the EPA final rule, FERC’s rules stated that a state has “a reasonable period of time” to issue a water quality certification. 

The Commission’s regulations establish for hydroelectric projects a categorical “reasonable period of time” of one year. So, that one-year deadline was considered applicable for pipeline projects, too. But it was never a legal requirement. That is what FERC wants to change in defining “a reasonable period of time” as one year for gas transmission projects.  

The state of New York’s refusal to issue a water quality certification for Williams’ proposed Constitution pipeline, first approved by FERC in 2014, was a high-visibility example of a state starting the one-year timetable and then stopping it and restarting it all over again when it asked Williams for more environmental information. 

Williams canceled the pipeline in February 2020, which would have brought fracked gas from the Marcellus shale area to New York City. “Defeating the Constitution Pipeline is an enormous victory for advocates who have been fighting for eight years to protect New York State and its waterways,” Earthjustice Staff Attorney Moneen Nasmith said in a statement.

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