The U.S. is producing more and more crude oil and natural gas and will do so for the foreseeable future. However, oil and gas produced in remote areas must be transported to refineries or other facilities for processing or tank terminals for export.
Pipelines are the preferred method of transportation, due to their cost-effectiveness and overall safety record.
Additional pipelines are needed to handle existing and future demand. Increasingly, though, the pipeline permitting process has become a battleground in which those who wish to hinder the use of fossil fuels take advantage of the existing statutory and regulatory framework to achieve those ends. One requirement in the Clean Water Act (CWA) has increasingly been used as a weapon.
Section 401 of the CWA requires that an applicant for a permit to discharge into navigable waters, such as wetlands, must obtain a certification from the appropriate state that the discharge will comply with certain provisions of the CWA, including those relating to water quality standards.
In this way, a state participates in the federal permitting process to ensure that the water quality within its boundaries is maintained. Water quality standards are provisions of state law that describe the desired condition of a water body and the means by which that condition will be protected or achieved. They usually consist of three components: designated uses of a water body, criteria to protect designated uses and anti-degradation requirements to protect existing uses. In reviewing an application for a discharge, the state will determine whether the proposed activity meets the various standards. A state usually has 60 days to make a decision, but the federal agency can extend that period up to a year. The state may grant the certification, with or without conditions, deny certification or waive its review.
"Water quality certifications" under Section 401 were routinely granted in the past. However, in recent years, certifying agencies in certain states have used this process to delay or stop pipeline projects. Several projects in the Northeast, mainly in New York, were stopped when the state refused to grant the water quality certification. Many suggested that the denials were based on ideological grounds as opposed to a reasoned determination of whether the standards would be impaired.
To address these practices and concerns, an Executive Order (EO) was issued in April 2019. In it, President Trump declared that our energy supplies provide tremendous economic opportunities, but the U.S. needs infrastructure to safely and efficiently transport these resources to end users. The policy of the U.S. is "to promote private investment in the nation's energy infrastructure" through, among other things, efficient permitting processes and procedures and timely action on infrastructure projects. In discussing water quality certifications, he found that outdated guidance and regulations "are causing confusion and uncertainty and are hindering the development of energy infrastructure." He ordered EPA to work with states, tribes and other federal agencies to review guidance and regulations regarding Section 401 to determine whether they should be clarified to be consistent with the policies announced in the EO. If there is inconsistency, new guidance or regulations are to be issued as needed.
It remains to be seen whether any new guidance or regulation will fully address the concerns about the Section 401 process and whether they will truly provide an applicant with a timely and fair decision. Regardless, though, this EO is a step in that direction and is another example of this administration's support for oil and gas production.
John B. King is a partner with Breazeale, Sachse & Wilson LLP in Baton Rouge, Louisiana. His practice relates mainly to environmental regulatory permitting and compliance. Prior to joining the firm in 2003, he served as chief attorney for enforcement for the Louisiana Department of Environmental Quality.
For more information, visit www. bswenviroblog.com or contact John B. King at jbk@bswllp.com or (225) 381-8014.
