In a big win for the oil and gas industry, the EPA (Environmental Protection Agency) has issued a final ruling that narrows the scope of section 401 of the Clean Water Act.
According to an EPA press release, “The agency’s final rule increases the transparency and efficiency of the Clean Water Act Section 401 (Section 401) certification process in order to promote the timely review of infrastructure projects while continuing to ensure that Americans have clean water for drinking and recreation.” The oil and gas industry believe that states and authorized tribes have misinterpreted Section 401 to indefinitely delay new infrastructure projects, and they welcome the new ruling defining the scope of how and when Section 401 is applicable.
The EPA ruling follows the direction of Executive Order 13868, “Promoting Energy Infrastructure and Economic Growth.” The Executive Order requested the EPA to review Section 401 to help determine if the agency’s policies required any updates or clarifications. After consulting and engaging with state, local and tribal partners, as well as review of more than 120,000 public comments, the EPA ruled as follows:
- Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request.
- Clarifies the scope of Section 401, including clarifying that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act.
- Explains EPA’s roles under Section 401.
- Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.
- Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.
The EPA’s ruling is more of clarification of policy than it is a policy change. The ruling prevents states from indefinitely dragging out certification requests as well using cumulative climate impacts instead of specific water quality impacts to make construction decisions. While the ruling is certainly a big boost for the oil and gas industry, the fight for control of pipeline construction is far from over. States are already challenging this ruling as they believe this is a federal power grab, and we will surely see this play out in courts over the coming months and years.