January 2024, Vol. 251, No. 1
Government
Pipelines Unhappy with Clean Water Act Final Rule
By Stephen Barlas, Contributing Editor, Washington, D.C.
(P&GJ) – The new Clean Water Act (CWA) final rule from the Environmental Protection Agency (EPA) potentially complicates efforts by pipeline builders (and other infrastructure sectors) to get construction approval from states and tribes.
The EPA final rule on CWA Section 401 certification reverses some of the pipeline-friendly aspects of a 2020 Trump administration rule which then became the subject of a legal challenge. Section 401 says if pipeline construction results in any discharge into “waters of the United States” the pipeline must first get a permit from the state before the project can be authorized by a federal agency such as the Federal Energy Regulatory Commission (FERC).
The final rule includes an example that singles out pipelines and explains how a state might use enhanced environmental requirements to either slow down or cancel a project.
“INGAA has serious concerns with the final Section 401 rule, many of which echo what we included in our 2022 comments,” explained a spokeswoman for the Interstate Natural Gas Association of America.
The EPA proposed changes in 2022, almost all of which were finalized.
“The final rule effectively eliminates the improvements that the 2020 rule delivered, including regulatory clarity around timelines and legal requirements,” she said. “The 2023 replacement expands the criteria states must use to evaluate applications and unlawfully imposes new burdens on state regulators – effectively allowing certain states to veto all manner of important infrastructure projects.”
In the final rule, the Biden EPA criticizes many aspects of the Trump rule and said:
“In this final rule, the agency is returning to those important core interpretations and practices, such as an ‘activity’ approach to the scope of certification review and greater deference to the role of states and tribes in the certification process, while retaining (and adding) elements that provide transparency and predictability for all stakeholders.”
In terms of the “added elements,” the final rule allows states and tribes to set their own certification requirement, which can either ignore federal requirements – the EPA enumerates seven of those – or pile on additional requirements in addition to the EPA “seven.” Those included such information as type of discharge, proposed activity, a map of the activity site, documentation that a pre-filing meeting request was submitted to the certifying authority.
In the final rule, the EPA dictates that a pre-filing meeting must take place and it must be requested 30 days prior to a certification application is filed with a state, tribe or federal agency. The Trump rule restricted that mandate only where the certifying authority was a federal agency.
Going further, the EPA said it is “concerned that some, if not many, of the water quality-related impacts” would not be identified by the project applicant if the scope of review was limited to “discharges only,” which was the case under the Trump rule.
Hence the new leeway allows states and tribes to look beyond “discharges” to “activities,” allowing “for additional water quality protections compared to the 2020 Rule’s approach.”
Then the EPA provides this example of how the “activity” rubric might affect pipeline construction applications:
“As another example, when reviewing the construction of a pipeline project, the ‘activity’ scope allows a certifying authority to consider water quality-related impacts beyond the discharge of dredge or fill material from the construction and placement of the pipeline and, depending on the activity specifics, can include water quality impacts from non-discharge related erosion or sedimentation from the pipeline construction, as well as later water quality impacts from erosion or sedimentation from the operation and maintenance of the pipeline.”
In an Aug. 5, 2022, letter to the EPA after the proposed rule was issued, Keegan Pieper, associate general counsel, Energy Transfer LP, which operate about 120,000 miles of pipelines in the U.S., blasted many technical aspects of the proposal rule.
Pieper asked it be withdrawn because it cannot be justified and comes at “a particularly inappropriate juncture … given domestic and international energy and other infrastructure and supply problems.”
The EPA ignored those comments.
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