Guidance issued on states’ CWA Section 401 certification

The US Environmental Protection Agency issued new guidance on states’ certification authority under Section 401 of the Clean Water Act.

The guidance provides recommendations to clarify and streamline the certification process and to promote greater investment in and certainty for national infrastructure projects while continuing to protect local water quality, EPA said.

Oil and gas groups welcomed EPA’s action. “EPA’s guidance takes us one step closer to restoring the state Section 401 certification process to its intended purpose of ensuring water quality while enabling the development of critical infrastructure,” Natural Gas Supply Association Pres. Dena E. Wiggins said.

“Reaffirming the statutory principles related to the timeframe for review, scope of review, and waiver authority will help to prevent instances where states have misused the certification process as a political tool to indefinitely delay or block a much-needed project,” Wiggins said.

Groups that support developing more interstate oil and gas pipeline and export terminals have complained that agencies in New York and other states have used their water certification authority under CWA Section 401 to block projects because of concerns about adverse environmental impacts.

Donald F. Santa, president of the Interstate Natural Gas Association of America, said INGAA supports effective CWA implementation and the protection of water quality. It also respects the important role that states and Native American tribes play in ensuring these shared objectives, he added.

“Congress charged EPA with administering the [CWA] and overseeing the implementation of Section 401. EPA’s guidance is needed to restore efficient and consistent implementation of Section 401 reviews,” Santa said.

Robin Rorick, vice-president for midstream and industry operations at the American Petroleum Institute, said API hopes the clarification will provide a rigorous, consistent, and transparent process for Section 401 water quality certifications.

“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 while enabling energy development, transportation, and refining to meet record consumer energy demand,” he said.

The guidance also provides provide clarity and certainty in the nation’s LNG project development process by clarifying the scope and expected timelines for obtaining permits, noted Charlie Riedl, executive director of the Center for LNG.

“The water quality certification process has been abused by states to block natural gas pipelines needed to provide safe, affordable and reliable service to millions of Americans that want it,” said American Gas Association Pres. Karen A. Harbert. “It is our hope that EPA’s balanced approach in its new guidance will end this practice while also protecting water quality as Congress intended.”

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