American Oil and Gas Reporter - July 2019 - 28

Federal Guidance Documents

Agency Actions Boost Infrastructure
WASHINGTON-The Trump administration in June issued a pair of guidance
documents that could have the effect of
facilitating oil and gas midstream infrastructure.
On June 7, the Environmental Protection Agency issued guidance to states
and tribes on Clean Water Act Section
401 water quality certifications that the
agency says "provides recommendations
to clarify and streamline the 401 certification process and to promote greater investment in and certainty for national infrastructure projects while continuing to
protect local water quality."
Then on June 21, the Council on Environmental Quality released a prepublication version of draft guidance addressing how National Environmental
Policy Act analyses should address greenhouse gas emissions. In it, CEQ says
agencies preparing environmental analyses
"need not give greater consideration to
potential effects from GHG emissions
than to other potential effects on the human environment."
Necessary Component
The Independent Petroleum Association
of America praises EPA's Section 401
guidance document, calling it "a necessary
component of developing much needed
infrastructure to transport America's oil
and natural gas resources to consumers."
"This guidance should allow for implementing the Clean Water Act in a
manner consistent with the statute and
the cooperative federalism that allows
for the distinct roles of federal and state
governments in certifying federally permitted or licensed activities," states IPAA
Executive Vice President Lee Fuller.
He adds, "IPAA believes the updated
guidance will prevent any future misuse
by certain states in their reviews and unwarranted denials of Section 401 permits."
Don Santa, president of the Interstate
Natural Gas Association, points out, "The
balance between the roles of state and
federal governments has been disrupted
and some states have viewed Section 401
as a means to determine which interstate
pipeline projects are in the public interest
and which are not."
Also complimentary is U.S. Senate
Energy and Natural Resources Committee
Chairwoman Lisa Murkowski, R-Ak. "I
welcome this announcement and hope
EPA's guidance will reduce abuse of the
Clean Water Act to block infrastructure
28 THE AMERICAN OIL & GAS REPORTER

needed to provide reliable and affordable
energy," she says.
On the flip side, Washington state
Attorney General Bob Ferguson says it
"will undermine four decades of state
and federal cooperation in environmental
stewardship," according to published
reports.
"The Trump administration's attempt
to attack our state's right to protect the
health and well-being of its residents,
without any consultation with states or
tribal governments, is wrong," reports
quote Ferguson.
Updated 401 Guidance
EPA says its 401 guidance responds
to President Trump's April Executive
Order 13868, "Promoting Energy Infrastructure and Economic Growth," and replaces interim guidance issued in 2010.
The new guidance deals with:
· Statutory and regulatory timelines
for review and action on CWA Section
401 certifications;
· The appropriate scope of 401 certification conditions; and
· Information within the scope of a
state or authorized tribe's 401 review.
Commenting that "the plain language
of Section 401 provides . . . a reasonable
time, which shall not exceed one year, to
act on a 401 certification request," the
EPA updated guidance states. "If a state
or tribe does not grant, deny or voluntarily
waive the Section 401 certification within
the established reasonable timeline . . .
federal permitting agencies are authorized
to . . . issue the federal permit or license.
"Once the federal permit or license as
been issued, absent any project modification, a subsequent action by a state or
tribe to approve, condition or deny 401
certification has no legal force or effect,"
the guidance adds.
It notes that while the timeline for action under EPA's 2010 guidance called
for receipt of a "complete application," it
counters that the CWA does not use that
term. Therefore, the new guidance says,
"The timeline for action on a 401 certification begins on receipt of a certification
request."
It adds that the CWA does give states
or tribes authority to delay a decision
while they wait for additional information
and encourages stakeholders to establish
procedures to ensure appropriate and sufficient information is submitted timely.
Regarding the scope of a Section 401

review, EPA says the CWA specifies effluent limitations and standards of performance for new and existing sources
(CWA Sections 301, 302 and 306), water
quality standards and implementation
plans (Section 303), and toxic pretreatment
effluent standards (Section 307).
Consequently, the June guidance states,
"EPA recommends that . . . 401 certification be limited to ensuring compliance
with the enumerated provisions . . . and
other appropriate state or tribal water
quality requirements."
But, it goes on, if a state or tribe
issues a 401 certificate with conditions
not related to water quality requirements
or denies one for reasons beyond those
enumerated, "Federal permitting agencies
should . . . determine whether a permit
or license should be issued . . . or if a
waiver has occurred."
Finally, the guidance says there is no
CWA provision requiring specific information be submitted with a 401 request,
and there is no prohibition against a state
or tribe requesting specific information.
However, it recommends states and
tribes not delay action on a certification
request waiting for a NEPA review
since NEPA reviews historically have
taken more than a year, "and waiting
for a NEPA process to conclude may
result in . . . failure to act with a reasonable timeline."
GHG Emissions
CEQ says its draft guidance on GHG
emissions is intended to replace final
guidance that it issued in August 2016
and became effective in April 2017, titled
"Final Guidance for Federal Departments
and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of
Climate Change in National Environmental
Policy Act Reviews."
In the proposed new guidance, CEQ
says agencies should analyze "reasonably foreseeable environmental consequences of major federal actions, but
should not consider those that are remote
or speculative."
CEQ says NEPA analyses are bound
by the "rule of reason," which "permits
agencies to . . . decide how and to what
degree to analyze particular effects. Agencies
preparing NEPA analyses need not give
greater consideration to potential effects
from GHG emissions than to other potential
effects on the human environment."
Following the rule of reason, the new

American Oil and Gas Reporter - July 2019

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