August 2022 Vol. 77 No. 8

Washington Watch

EPA, USACE Double-Team Pipeline Construction

The Biden Administration is at it again with its latest regulatory effort to stymie pipeline development. A few months ago, the United States Army Corps of Engineers (USACE) suggested new restrictions on general pipeline repair permit NWP 12, which includes minimal dredge and fill near “waters of the U.S. (WOTUS).”

Then, in June, the Environmental Protection Agency (EPA) proposed a rule making it easier for states to block even major pipeline construction for reasons having to do with potential damage to rivers and streams from a range of environmental, wildlife, historic-sites and other threats. USACE cited section 404 of the Clean Water Act; EPA cited section 402 of the same law. 

EPA’s proposed rule, Clean Water Act Section 401 Water Quality Certification Improvement, gives states new ammunition with which to deny a pipeline project the needed certification for obtaining a federal permit to build or repair a pipeline, where there might be environmental damage to WOTUS. It would cancel a Trump administration final rule, still in effect though the subject of a lawsuit, that limits states’ ability to refute a pipeline 401 certification. 

While the EPA proposal, if finalized, could complicate all kinds of pipeline construction, highways, etc. – major and minor – for many reasons, the USACE effort would only hinder pipelines. Nationwide Permit (NWP) 12 allows pipelines to get expedited approval when a pipeline repair project will cause “no more than minimal individual and cumulative adverse effects to the environment.” 

In 2021, USACE made some changes to NWP 12, which is supposed to stay in effect for five years. As a general permit, NWP 12 is much easier to obtain than an individual permit. Even if approval is forthcoming, an individual permit costs considerably more, in dollars and time. 

In a May 27, 2022, letter to USACE, the Interstate Natural Gas Association of America (INGAA) stated, “Any modifications to NWP 12 that would lengthen the permitting process would be inconsistent with Congress’s goal of creating a streamlined program to allow the Corps to focus its resources on permitting projects with greater adverse environmental impacts.” 

For example, one INGAA member estimates that if an individual permit is required, permitting schedules would be extended between 300 percent and 1,000 percent, depending on the complexity of the project. 

USACE is considering expanding community outreach, particularly in minority areas. It states, “Previous uses of NWP 12 have raised concerns identified in Executive Order 13990, such as environmental justice, climate change impacts, drinking water impacts and notice to impacted communities.” 

Under the Biden administration’s much broader section 401 revisions, a state would be allowed to determine whether “any aspect” of an entire, federally licensed pipeline or other project will comply with its water quality standards and then deny certification of the project, within state borders, if it chooses. States and tribes would also be able to waive or grant certification, and do so with conditions. 

That’s a pivot from the Trump rule, which restricts each state’s scope of review to specific, possible point-sources of water pollution associated with a federally licensed infrastructure project. Trump’s rule limits states to evaluating possible discharges into WOTUS. 

In a statement, American Gas Association President Karen Harbert claimed states have dragged their feet on certifying projects and expressed concern about the Biden EPA changes. 

“It should not take longer to get the permits and permissions for a pipeline than it does to build one,” she said. “We are concerned that the proposed rule will veer from the intent that Congress had when authoring the Clean Water Act and will allow some states to delay and increase costs for essential energy infrastructure.” 

While the Trump Section 401 rule remains in effect, it’s in legal limbo. The rule was vacated in 2021 by a judge in the U.S. District Court for the Northern District of California. However, eight states, led by Louisiana, intervened and requested that the U.S. Court of Appeals for the Ninth Circuit stay the ruling. 

The U.S. Supreme Court granted the stay after the Ninth Circuit denied it, keeping the Trump-era rule in effect. In 2021, Shelley Moore Capito (R-W.Va.) and other Republicans on the Senate Environment and Public Works Committee introduced a bill (S. 3277) that would codify the Trump rule. 

“Section 401 is meant to protect water quality. It is not a broad license for states to block economic activity or infrastructure based upon political factors,” Capito said at the time. 

That bill has gone nowhere. 

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