CWA Section 401 Improvements Will Help U.S. Infrastructure

Mark Green
Posted June 4, 2020

EPA has announced its final rule to modernize Section 401 of the Clean Water Act (CWA), which will clarify the jurisdiction of states in issuing required water quality certifications. As discussed in this post, the changes will help the timely advance of needed infrastructure projects – which in some instances EPA believes have been delayed or blocked by states exceeding their Section 401 authority.

EPA Administrator Andrew Wheeler said the CWA review process has been abused in the past, holding key infrastructure “hostage.” Wheeler:

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure.”

Robin Rorick, API vice president for midstream and industry operations, said the modernized rule will provide a “rigorous, consistent and transparent” process for water quality certifications while ensuring the public’s role in regulating new infrastructure construction. Rorick:

“We support the Clean Water Act, and though certain states have continued to go well beyond its scope for water quality certifications, we hope the addition of a well-defined timeline and review process will provide certainty to operators as they develop infrastructure projects that meet state water quality standards.”

To reach this point, EPA conducted a comprehensive analysis of Section 401. Among other things, the modernized rule:

• Specifies statutory and regulatory timelines for review and action on a Section 401 certification, requiring final action within one year of receiving a certification request.
• Clarifies that Section 401 certification is based on the potential for a discharge from a project into a water source of the U.S. EPA said when states look at issues other than the impact on water quality, they go beyond the CWA’s scope.

These are needed revisions – because, as we argue, Section 401 has been misused to stop important infrastructure projects. The previous post focused on New York state’s denial of a water quality certification for the proposed Northeast Supply Enhancement natural gas pipeline. Some other examples of major infrastructure projects that were delayed during Section 401 review:

• The Constitution natural gas pipeline in New York, denied a water quality certification nearly three years after the project’s initial application – and after the builder withdrew and resubmitted its request for certification twice at the bidding of state regulators.
• The PennEast natural gas pipeline in New Jersey had its water quality certification application rejected after state officials deemed it incomplete, requesting surveys of the project’s entire route.
• The Jordan Cove liquefied natural gas export project in Oregon was denied a water quality certification after the builder answered multiple requests for additional information. FERC, which approved the project, and the state remain at odds over the project’s future.
  • The Northern Access natural gas pipeline was denied Section 401 certification by New York state officials, without clarifying rationale and record citations, more than two years after the initial certification request.
  • The Millennium Bulk Terminal, a coal export facility, was denied a certification by Washington state officials three business days after the project submitted hundreds of pages of additional information requested by the state.

As Rorick says above, updating Section 401 will retain the rigor of CWA review while making it more transparent for energy developers and manufacturers. This is a good step forward for U.S. energy infrastructure.