October 2019, Vol. 246, No. 10


EPA Proposes Limits on State Barriers to Pipeline Construction

The Environmental Protection Agency (EPA) is moving ahead with an effort to prevent states from blocking pipeline projects by delaying or rejecting 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 happy with the EPA proposed rule. 

Don Santa, president and CEO of the Interstate Natural Gas Association of America (INGAA), says, “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,” he states.

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, says, “We’ll likely be taking a position which draws concerns with the proposed restrictions on state authority.” Mark Drajem, spokesman for the Natural Resources Defense Council, calls the proposed rule “underhanded and hypocritical.” 

Jon Devine, director for federal water policy at the NRDC, adds, “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. 

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 Cos.’ Constitution Pipeline which would carry gas from Pennsylvania to New York. 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 which have prevented construction from beginning. 

Some states have used the wording in the CWA statute which 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 have included conditions not related directly to water quality in Section 401 certification approvals. 

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 multi-media 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,” the proposed rule states. Rather, according to the agency, the purpose of CWA certification ensures compliance with “applicable effluent limitations” and “water quality requirements.” P&GJ

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