American Oil and Gas Reporter - June 2020 - 46

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SpecialReport: Water Management

EPA Limits States' Section 401 Power
WASHINGTON-The U.S. Environmental Protection Agency on June 1 released a final rule it says will increase
the transparency and efficiency of state
water quality reviews under Section 401
of the Clean Water Act.
The final rule, which may be accessed
at https://www.epa.gov/cwa-401, is to become effective 60 days following its publication in the Federal Register.
"EPA is returning the CWA certification
process under Section 401 to its original
purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block
critically important infrastructure," Administrator Andrew Wheeler stated in announcing the final rule.
Wheeler noted that the rule discharged
EPA's duty imposed by President Donald
Trump's April 2019 Executive Order
13868, "Promoting Energy Infrastructure
and Economic Growth." That EO directed
EPA to review its guidance and regulations
pertaining to water quality certifications
under Section 401, and to issue new guidance to states and authorized tribes that
superseded the agency's 2010 interim
guidance (AOGR, May 2019, pg. 28).
EPA issued an updated Section 401
guidance on June 7, which limited states'
water quality reviews to one year, and
specified that they be limited to effluent
limitations and standards of performance
for new and existing sources, water quality
standards and implementation plans, and
toxic pretreatment effluent standards
(AOGR, July 2019, pg. 28).
Time And Scope Limits
According to EPA, the final rule:
· Reaffirms the statutory requirement
that final action be taken within one year
of the reviewing agency receiving the
certification request;
· Clarifies that the scope of a certifying authority's review and action is
limited to assuring a discharge from a
point source into a water of the United
States resulting from a federally licensed
or permitted activity will comply with
"water quality requirements" as defined
in the rule;
· Reaffirms that certification is required for federally licensed or permitted
activities that may result in a discharge;
· Reaffirms EPA's statutory respon46 THE AMERICAN OIL & GAS REPORTER

sibility to provide technical assistance to
any party involved in a Section 401
process; and
· Promotes early engagement and
coordination among project proponents,
certifying authorities, and federal licensing
and permitting agencies.
Updated provisions in the final rule
intended to increase clarity and regulatory
certainty, EPA continues, include:
· New prefiling meeting provisions
to promote early coordination;
· Additional elements in a certification
request needed to start the reasonable
period for review;
· A clarified definition of "water
quality requirements;"
· Refined information requirements
that must be included in a certifying authority's decision document; and
· Clarification that federal agency review of a decision document should focus
on the authority's compliance with the
procedural requirements of Section 401.
One published analysis of the final
rule says it largely tracks EPA's proposed
regulation, although the analysis says it
softens part of the proposal that would
have allowed federal agencies to secondguess whether a state's certification decisions were within the scope of the law.
The proposed rule, which EPA released
last August, would have allowed EPA to
waive or invalidate a state's Section 401
authority if it missed a deadline or cited a
rationale for denying a request other than
water quality issues (AOGR, September
2019, pg. 28). In such a case, under the
proposed rule, permitting decisions would
have reverted to federal agencies.
Under the final rule, according to the
published analysis, EPA still will be able
to review states' certifications for compliance with the procedural requirements of
Section 401, but the "substantive" review
of states' claims will be left to the courts.
Industry Support
Industry associations reacted positively
to announcement of the rule. "API believes
this rule will provide a rigorous, consistent
and transparent process for water quality
certifications . . . while ensuring the public
plays an important role in the regulatory
process," responds American Petroleum
Institute Vice President for Midstream and
Industry Operations Robin Rorick.
He adds, "We support the CWA, and

though certain states have continued to
go well beyond its scope for water quality
certifications, we hope the addition of a
well-defined timeline and review process
will provide certainty to operators as they
develop infrastructure projects that meet
state water quality standards."
Dena Wiggins, president and chief executive officer of the Natural Gas Supply
Association, in a statement released jointly
with the Center for LNG, says, "EPA's
efforts to promote early engagement and
regulatory certainty will enhance the predictability and efficiency of the permitting
process for interstate natural gas pipelines,
and will allow states and federal authorities
to do their jobs of protecting water quality."
National Mining Association President
and CEO Rich Nolan says his organization
hopes EPA's action "will help end the
abuse of the Section 401 permitting
process."
The Energy Equipment & Infrastructure
Alliance notes it has lobbied EPA on
behalf of the new rule as part of a coalition
of 27 business and labor groups, including
the U.S. Chamber of Commerce and the
National Association of Manufacturers.
Pointing especially to the rule's provisions
that prevent states from rejecting pipeline
permit applications on grounds unrelated
to water quality and that require states to
act within one year, EEIA says the final
rule "will provide clarity, consistency and
regulatory certainty for state and tribal execution of their authority . . . by establishing
standards for timely reviews of applications,
focusing their scope to areas intended by
the CWA, and setting clear and uniform
standards for implementation."
State Certification Abuses
EEIA accuses some states of taking
advantage of previous ambiguity in Section
401 to deny certification on grounds outside the CWA's purposes and intent.
In a press conference accompanying
announcement of the rule, published reports indicate, EPA Administrator Wheeler
told reporters some states had denied
project certifications for reasons "having
nothing to do with water quality."
"We support a state's right to make
decisions based on its best interests, but
our system of republican democracy does
not allow one state to dictate standards
or decisions for an entire nation," Wheeler
is quoted.


https://www.epa.gov/cwa-401

American Oil and Gas Reporter - June 2020

Table of Contents for the Digital Edition of American Oil and Gas Reporter - June 2020

Contents
American Oil and Gas Reporter - June 2020 - Intro
American Oil and Gas Reporter - June 2020 - 1
American Oil and Gas Reporter - June 2020 - 2
American Oil and Gas Reporter - June 2020 - Contents
American Oil and Gas Reporter - June 2020 - 4
American Oil and Gas Reporter - June 2020 - 5
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