August 2022, Vol. 249, No. 8


EPA, Army Corps Double Team Pipeline Construction

By Stephen Barlas, Contributing Editor, Washington, D.C.

(P&GJ) — The Biden Administration is at it again with its latest regulatory effort to stymie pipeline development. Three months ago, the Army Corps of Engineers suggested new restrictions on general pipeline repair Nationwide Permit (NWP) 12, in which there is minimal dredge and fill near Waters of the U.S. (WOTUS). 

In June, the Environmental Protection Agency (EPA) issued a proposed rule making it easier for states to block even major pipeline construction for reasons having to do with potential damage to rivers and streams from a range of environmental, wildlife, historic sites and other threats. The Corps cited Section 404 of the Clean Water Act, the EPA’s Section 402 of the same law. 

The EPA’s Clean Water Act Section 401, Water Quality Certification Improvement, proposed rule gives states new ammunition with which to deny a pipeline project the certification it would need to obtain a federal permit to build or repair a pipeline where there might be environmental damage to WOTUS. It would cancel a Trump administration final rule, which is still in effect, though the subject of a lawsuit, which limited the ability for states to deny a pipeline 401 certification. 

The EPA proposal, if finalized, could complicate all kinds of pipeline and other infrastructure construction, and for many reasons, the Army Corps effort would only hinder pipelines. NWP 12 allows pipelines to get expedited approval when a pipeline repair project will cause no more than minimal individual and cumulative adverse effects to the environment.  

The Corps made some changes to NWP 12 in 2021 and that permit is supposed to stay in effect for five years. The NWP 12 is a general permit, which is much easier to obtain than an individual permit, whose approval, even if forthcoming, costs considerably more in dollars and time. 

In a May 27, 2022, letter to the Army Corps, the Interstate Natural Gas Association of America (INGAA) said:  

“Any modifications to NWP 12 that would lengthen the permitting process would be inconsistent with Congress’s goal of creating a streamlined program to allow the Corps to focus its resources on permitting projects with greater adverse environmental impacts.”   

For example, one INGAA member estimates that if an individual permit is required, instead of NWP 12, project permitting schedules would be extended between 300% and 1,000%, depending on the complexity of the project. 

The Army Corps is considering expanding community outreach, particularly in minority areas. It states, “Previous uses of NWP 12 have raised concerns identified in Executive Order 13990, such as environmental justice, climate change impacts, drinking water impacts, and notice to impacted communities.”   

Under the Biden administration’s much broader Section 401 revisions, a state would be allowed to determine whether “any aspect” of an entire federally licensed pipeline or other project will comply with its water quality standards and then deny certification of the project within state borders if it chooses.  

States and tribes would also be able to waive or grant certification, or do so conditionally. That’s a pivot from the Trump rule, which limits each state’s scope of review to specific, possible point-sources of water pollution associated with a federally licensed infrastructure project. The Trump rule limits the role of states to evaluating possible discharges into WOTUS. 

In a statement, American Gas Association President Karen Harbert said that states have dragged their feet on certifying projects and expressed concern about the Biden EPA changes. 

“It should not take longer to get the permits and permissions for a pipeline than it does to build one,” Harbert said. “We are concerned that the proposed rule will veer from the intent that Congress had when authoring the Clean Water Act and will allow some states to delay and increase costs for essential energy infrastructure.” 

The Trump Section 401 rule remains in effect, but in legal limbo. The rule was vacated in 2021 by a judge in the U.S. District Court for the Northern District of California. But eight states led by Louisiana intervened, requesting that the U.S. Court of Appeals for the Ninth Circuit stay the ruling. 

The U.S. Supreme Court granted the stay in April after the 9th Circuit denied it, keeping the Trump-era rule in effect. Sen. Shelley Moore Capito (R-W.Va.) and other Republicans on the Senate Environment and Public Works Committee in 2021 introduced a bill (S. 3277) that would codify the Trump rule. 

“Section 401 is meant to protect water quality. It is not a broad license for states to block economic activity or infrastructure based upon political factors,” Capito said at the time. That bill has gone nowhere. 

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