Underground Construction - October 2019 - 12

WASHINGTONWATCH

Stephen Barlas | Washington Editor

EPA Proposes Limits on State Regulatory
Barriers to Pipeline Construction
The Environmental Protection Agency
(EPA) is moving ahead with an effort to
limit the ability of states to stymie pipeline
projects by either declining to issue or
delaying the issuance of Clean Water Act
certifications. The states and Indian tribes
are required to issue those permits within
one year of submission of a request by a
company wanting to build a pipeline.
The certification affirms that the project
will not impair water quality due to impacts on rivers, streams and ocean, mostly
from unauthorized discharged caused by
construction or ongoing pipeline activities.
If the certification is not issued within one
year, at the latest, from the time the application is submitted, the Federal Energy
Regulatory Commission (FERC) is entitled
to green light the project.
Over the past half-decade or so, however, states have either delayed approval
of certification requests or denied them,
often after taking longer than a year and for
reasons other than the project negatively
affecting water quality issues. The interstate
pipeline industry has voiced unhappiness
with state water-quality delays for years
and is pleased with the EPA proposed rule.
"While the statute recognizes the
distinctive roles of the federal and state
governments in the environmental review
process, the balance between those roles
has recently been disrupted and some
states have viewed Section 401 as a means
of determining which interstate pipeline
projects are in the public interest and
which are not," stated Don Santa, president and CEO of the Interstate Natural Gas
Association of America (INGAA).
Opposition to the changes will come
from state officials and environmental
groups. Ben Husch, policy director, Natural
Resources and Infrastructure, National
Conference of State Legislatures, said,
"We'll likely be taking a position which
draws concerns with the proposed restrictions on state authority." Mark Drajem,
12

OCTOBER 2019 | UConOnline.com

Concerns about application
delays and onerous construction
conditions are at the heart of the
EPA proposed rule ... after a year's
worth of consultation with various
interested groups, mostly state and
local environmental officials and tribal
representatives. The proposal would
address delays beyond one year.
spokesman for the Natural Resources
Defense Council, calls the proposed rule
"underhanded and hypocritical."
Jon Devine, director for federal water
policy at the NRDC, added, "Developers of
pipelines or dams don't want state leaders
or local residents to scrutinize or restrict
harmful projects - but that just demonstrates why states' authority to do so
is so important."
Industry concerns about application
delays and onerous construction conditions are at the heart of the EPA proposed
rule issued in August after a year's worth
of consultation with various, interested
groups - mostly state and local environmental officials and tribal representatives.
The proposal would address the issue of
delays beyond one year by prohibiting
states and tribes from delaying action on
a certification application because of the
need to obtain additional information
from the project sponsor, once the initial
application is submitted.
New York State has used that reasoning
to delay action on the Williams Companies'
Constitution Pipeline, which would carry
gas to the state from Pennsylvania. New
York has forced Constitution to resubmit
its application twice while the Federal
Energy Regulatory Commission approved
the project in 2014. The pipeline is the subject of legal challenges that have prevented
construction from the beginning.

Some states have used the wording in
the CWA statute that refers to the ability
of states to deny approval if a project
violates an "appropriate requirement" of
state law to incorporate non-water quality
related considerations in their certification
review. The proposed rule notes that states
have included consideration of impacts
associated with air emissions and transportation effects in their environmental
impact statements, and conditions not
related directly to water quality in section
401 certification approvals. These conditions include requiring construction of
biking and hiking trails, requiring one-time
and recurring payments to state agencies
for improvements or enhancements that
are unrelated to the proposed federally
licensed or permitted project.
The proposed rule states: "If Congress
intended section 401 of the CWA to
authorize consideration or the imposition of
certification conditions based on air quality
concerns, public access to waters, energy
policy or other multimedia or non-water
quality impacts, it would have provided a
clear statement to that effect. Neither the
CWA nor section 401 contain any such clear
statement." Rather, according to the agency,
the purpose of CWA certification is to ensure
compliance with "applicable effluent limitations" and "water quality requirements."

Senate Pipeline Bill Differs
from House Bill
The Senate and House appear to be on a
little bit of a collision course with regard
to reauthorization of the pipeline safety
program at the Pipeline and Hazardous
Materials Safety Administration (PHMSA).
The bills passed by key committees in
each of the two houses of Congress have
different provisions and share only a few
provisions. The Senate Commerce, Science
and Transportation Committee passed its
bill called the Protecting Our Infrastructure
of Pipelines Enhancing Safety (PIPES) Act
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Underground Construction - October 2019

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