On June 7, the U.S. Environmental Protection Agency issued new guidance on the use of the state Section 401 Water Quality Certification process as it relates to pipelines and other energy infrastructure projects saying state certification should be limited to water quality issues and standards as described in the federal Clean Water Act.
The new guidance also says EPA can issue federal permits for projects, including pipelines, regardless of whether states raise questions about impacts to climate change or air pollution, according to E&E News.
The guidance is meant as a stand-in while EPA works on formal regulations.
The guidance itself doesn't carry the rule of law, and therefore states are not bound by it. But it serves as a significant warning shot. States that ignore EPA guidance could well find themselves in court, either fighting EPA for ignoring their certification decisions or fighting with industry.
Section 401 of the Clean Water Act gives states the right to "certify" that projects requiring federal permits comply with both the act and their water quality standards. That means projects being permitted federally by EPA, the Army Corps of Engineers or the Federal Energy Regulatory Commission also must be approved, denied or approved with conditions by states.
In recent years, some states have used this certification process to deny permits for pipelines and coal terminals not just due to water quality concerns, but also because of their contribution to air pollution and climate change.
Deadline For State Reviews
The guidance document also limits how much time states have to make their certification decisions, according to E&E News.
The federal Clean Water Act itself gives them up to a year but does not say whether that timeline begins once a permit application has been received or once a state deems it has enough information to make a decision.
That has resulted in state reviews taking multiple years as they ask applicants for more information about how projects might affect water quality or the environment.
EPA's guidance today clarifies that the clock begins when a state receives an application and cannot be stopped even if applicants don't respond to state requests for more information or if states want to wait for federal environmental assessments to be completed before making their decisions.
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