The Environmental Protection Agency on Aug. 9 proposed a rule that would limit states’ review process of Clean Water Act certifications for energy and other infrastructure projects to one year.
The deadline would apply to the law’s Section 401, which bars federal permits or licenses for projects unless states or tribes certify the project would comply with water-quality requirements.
“Our proposal is intended to help ensure that states adhere to the statutory language and intent of the Clean Water Act,” EPA Administrator Andrew Wheeler said in a written statement. EPA will take public comment on the proposal for 60 days following publication in the Federal Register.
Wheeler announced the proposal at a conference of the National Association of Manufacturers in South Carolina.
Under the proposal, one year would be the maximum time for states or tribes to act. “The statute only grants as much time as is reasonable, and federal licensing or permitting agencies, in their discretion, may establish a period of time shorter than one year” if the agencies determine that “a shorter period is ‘reasonable.’” The clock begins ticking upon receipt of a certification application, the proposal says.
The proposal follows guidance that EPA issued June 7, which drew a strong protest from attorneys general in 14 states including California, New Mexico, Oregon and Washington.
The guidance said that if states have not decided on applications to certify projects under the Clean Water Act’s Section 401 within one year, federal agencies may determine the states have waived their authority and issue a federal permit or license. The guidance said Congress “clearly limited the timeline” for states and tribes to act on Section 401 certifications to “one year or less.”
In an April 10 executive order, President Donald Trump directed EPA to issue the guidance, then propose Section 401 implementation regulations by Aug. 8 and finalize the rule by May 2020.
The Trump administration and congressional Republicans have argued that states have used their project certification authority under Section 401 as a regulatory cudgel to block hydroelectric dams, gas pipelines and other energy projects, including the proposed Millennium Bulk coal export terminal on the Columbia River in Longview, Washington.
The proposed rule, if finalized, likely would be challenged by states. In May 24 comments filed to EPA, 16 state attorneys general and heads of state environmental agencies warned against regulatory changes that they said would undermine what they called their broad statutory authority to vet projects for impacts on water quality.
“Neither the president’s executive order nor EPA’s guidance and regulations can contradict or undermine the plain language and congressional intent of Section 401,” the state officials said.
In addition, the officials suggested that EPA’s goal of streamlining project approvals would be undercut by the proposal. “If a state agency’s review time is unnecessarily restricted by federal regulation or guidance, the agency may be forced to deny applications without prejudice. The applicants would then need to reapply for a Section 401 certification, triggering a new time period for review and delaying a final decision on the application,” the comment said.
The comment also accused EPA of attempting to rush through changes in Section 401 implementation regulations.
“We won’t sit by quietly while the Trump administration tries to rob us of our rights and degrade water quality for our people simply to benefit polluting industries,” California Attorney General Xavier Becerra said at the time.
In addition to Becerra, attorneys general who filed the comment included the chief legal officers of Colorado, New Mexico, Oregon and Washington.
Industry groups, including the National Hydropower Association and Interstate Natural Gas Association of America, praised the executive order directing EPA to revise the Section 401 regulations.
Linda Church Ciocci, the hydropower association’s then-CEO, said states have dragged out project review processes by forcing applicants to withdraw and refile certification applications. She noted that the U.S. Court of Appeals for the D.C. Circuit earlier this year ruled against withdrawal-and-refiling practices in connection with the settlement agreement involving the Klamath River hydroelectric projects.
Tailpipe Rule Under White House Review
The Trump administration’s proposed rule to freeze tailpipe greenhouse gas emissions limits and block California from setting its own standards went to the White House for review Aug. 2.
The Environmental Protection Agency and the National Highway Traffic Safety Administration sent the proposal to the Office of Management and Budget for review. Contents were undisclosed.
The administration has proposed freezing tailpipe standards at 2020 levels until 2026. The proposal, if finalized, would undo a 2012 agreement between the federal government and California to harmonize tailpipe GHG and fuel-economy standards.
If the proposal is finalized, California and other states that enforce California tailpipe standards are almost certain to challenge it in court.
In House testimony on June 20, EPA’s then-assistant administrator, William Wehrum, said the rule would make new cars more affordable for buyers. Keeping the 2012 agreement in place would add $2,810 to the cost of owning a new car, Wehrum told a hearing of the House Energy and Commerce Committee’s Environment and Climate Change and Consumer Protection and Commerce subcommittees.
In a report released Aug. 7, Consumer Reports disputed EPA’s argument. The report said freezing the standards would result in an estimated $460 billion in higher costs for consumers emissions of nearly 3 billion metric tons of GHG over the lives of model years 2021-2035 vehicles.
Transmittal of the proposal to the White House came a week after California Gov. Gavin Newsom announced “terms of a national agreement” with four automakers to comply with standards requiring year-over-year tightening of emissions limits at a nationwide annual average of 3.7 percent. One percent of the annual improvement could be covered through credits earned by selling electric vehicles, including battery, hybrid, plug-in hybrid or fuel-cell drives.
In a related matter, attorneys general from 13 states sued to challenge what they alleged was NHTSA’s unlawful reduction of penalties charged to automakers for violating corporate average fuel-economy standards.
The suit asked the U.S. Court of Appeals for the 2nd Circuit to throw out a NHTSA rule lowering the penalty from $14 to $5.50 per tenth of a mile for model year 2019 and later vehicles. NHTSA finalized the rule July 26.
AGs filing the suit included the chief legal officers of California, Oregon and Washington.
DOE Developing Resilience Model
The Department of Energy has released a plan to develop a North American energy “resilience model” aimed at scoping out ways to head off natural or human-made threats to the grid in real time.
The model would serve as a “‘what-if’ machine to help the nation answer vexing questions to best protect our energy infrastructure,” DOE said in the plan. It noted the bulk power system’s interdependence on gas, water, transportation and telecommunications systems, and “our ever-evolving energy infrastructure,” including storage, demand response and distributed generation.
As one example, DOE said, the model would enable fuller analysis of the impacts of a gas-supply disruption on electric utilities or of a blackout on gas deliverability. “This will provide the ability to identify vulnerabilities that could not be identified with the current models, tools and practices,” the plan said.
The plan said weather-related disasters “are projected to increase in intensity and frequency,” and also mentioned cyberthreats and potential worst-case attacks such as directed-energy weapons and high-altitude nuclear detonations setting off a destructive electromagnetic pulse.
DOE said the resilience model would rely on beefed-up analysis from national laboratories and the private sector. Currently, “the arguments for various solutions are built upon uninformed conjecture and incomplete analysis,” the plan said.
Once the model is in place, DOE said, the Energy Department would be able to “quickly and effectively prepare and respond to natural and adversarial events to ensure reliable and resilient energy delivery across the nation.”
Tester Blasts Acting BLM Chief
Interior Secretary David Bernhardt’s choice of William Perry Pendley to head the Bureau of Land Management drew fire Aug. 7 from Sen. Jon Tester (D-Mont.).
In a letter to Pendley, Tester demanded that he recuse himself from decisions in connection with Solenex’s push to reinstate a gas lease in the Badger-Two Medicine Area. Pendley is a former head of the Mountain States Legal Foundation, which is representing Solenex in litigation to reinstate the lease, which then-Interior Secretary Sally Jewell canceled in 2016.
The Badger-Two Medicine Area is a 130,000-acre roadless area adjacent to the Blackfeet Indian Reservation and Glacier National Park in northwestern Montana.
Tester also criticized Pendley’s past advocacy of selling federal lands, opposition to land regulations, and support for repealing the 1906 Antiquities Act, which authorizes presidents to establish national monuments on federal acreage.
In a July 29 order, Bernhardt authorized Pendley to act as BLM’s director. Pendley is the agency’s deputy director for policy and programs.
Tester called Pendley’s appointment an “end run around the Senate’s responsibility to oversee and confirm federal leadership positions.” Since taking office in 2017, Trump has not nominated a permanent BLM director.
Pendley’s appointment also drew fire from conservation and sporting organizations. In a letter to leaders of House and Senate committees overseeing federal lands issues, 14 Western wildlife and conservation groups asked lawmakers to demand revocation of the appointment.
Land Tawney, CEO of Backcountry Hunters & Anglers, said in a written statement that Pendley “should not be entrusted with the management of our public estate. The fox has taken control of the hen house, and he is poised to systematically dismantle the very resources he is charged with overseeing.”
Archuleta Named to Head BLM Desert District
The Bureau of Land Management on Aug. 8 named Andrew Archuleta to head the agency’s 10.5-million-acre California Desert District.
Archuleta, a Colorado native and career official with federal resource-management agencies, most recently served for two years as the district manager of BLM’s Colorado Northwest District.
BLM’s California Desert District oversees resource use and conservation on federal lands in nine counties, including permitting of solar power plants and transmission rights of way.
Forest Service Proposes Revised Sage Grouse Plans
The U.S. Forest Service on Aug. 1 released proposed plans to scale back sage grouse protections on national forest lands in five Western states.
The Forest Service released a final environmental impact statement and draft records of decision for sage grouse policies for national forests in Colorado, Idaho, Nevada, Utah and Wyoming. The proposals would revise plans adopted in 2015.
The Forest Service said the revisions would “align state and federal conservation standards” so users of the lands would not face “multiple, complex layers of restrictions.”
Environmentalists attacked the proposals. “The sage grouse and an entire ecosystem now depend on Western governors to take the lead and pick up where this administration has completely failed,” The Wilderness Society said in a statement.
Under the Forest Service’s preferred alternative, “priority habitat management areas” with the “highest conservation value” would be reduced 6.4 percent, to nearly 2.37 million acres. A management standard in 2015 plans calling for “net conservation gain” would be changed to “no net loss,” except in Nevada, where the “net conservation gain” standard would be retained.
The preferred alternative does not include approximately 865,000 acres of “sagebrush focal areas,” acreage identified by the U.S. Fish and Wildlife Service as sage grouse “strongholds.” In 2017, the Interior Department canceled a proposed withdrawal of focal areas from mineral development.
The proposals include plan changes specific to national forests in the five states. For Colorado, the preferred alternative would drop a prohibition on surface facilities for new underground coal leases in priority habitat areas.
For Idaho, the revisions would reduce buffers affecting “leks,” areas that grouse use for courtship and breeding. For transmission lines, the buffers would be reduced from 2 to 1.2 miles outside of priority habitat areas. Distribution-line buffers would be reduced from 2 miles to 0.6 mile outside the priority areas.
On March 15, the Interior Department approved sage grouse plan revisions for BLM acreage covering seven states. The BLM plans would ease restrictions on oil and gas leasing inside 29 million acres of priority habitat areas.
Murkowski Seeks Broader Loan Access
Sen. Lisa Murkowski (R-Alaska) has introduced legislation aimed at making smaller energy projects eligible for federal loan guarantees, her office announced Aug. 5.
Murkowski, chairman of the Senate Energy and Natural Resources Committee, said current criteria tailored for large projects freeze out loan eligibility for projects “needed in many smaller and rural communities.”
Her bill would enable state financing authorities to bundle together smaller energy projects for seeking DOE loan guarantees.
DOE Takes Step to Build Test Reactor
The Department of Energy on Aug. 5 took a procedural step toward building a test reactor to experiment with fuels and materials for advanced nuclear power plants.
DOE is looking at two potential locations, the Idaho National Laboratory and the Oak Ridge National Laboratory in Tennessee. DOE also is looking at the Idaho lab as a potential fuel-fabrication facility for the reactor.
DOE published a notice in the Federal Register announcing a plan to draft an environmental impact statement to study the project.
Rita Baranwal, DOE’s assistant secretary for nuclear energy, said the lab should be built on an accelerated schedule “to avoid further delay in the United States’ ability to develop and deploy advanced nuclear technologies.” She warned that the U.S. risks losing leadership to China and Russia.
Bill to Codify Trump Waters Rule Floated
Two Republican senators on Aug. 1 introduced legislation to codify the Trump administration’s proposed redefinition of the “Waters of the U.S.” rule.
Sen. Joni Ernst (R-Iowa), who introduced the bill with Sen. Mike Braun (R-Ind.), said the legislation would “provide for more certainty with a new, clearer definition of [waters of the U.S.].”
The proposal spells out six water-body types subject to Clean Water Act regulation and specifies that other water bodies would not be under the law’s jurisdiction.
Under the proposal, wetlands would fall under the law’s reach if they are adjacent to other jurisdictional waters such as lakes and rivers, or if they have a hydrologic surface-water connection to jurisdictional waters through inundations or via perennial or intermittent streams.
If finalized, the rule would replace the rule the Obama administration adopted in 2015. Since its adoption, implementation of the regulation has been complicated by numerous court cases challenging and defending it.
The 2015 rule has been blocked by court action in 26 states and is in effect in 23 others, including California, Colorado, Oregon and Washington. In New Mexico, the rule’s status is in question, since 10 counties in the state have challenged it in court.
DOE Approves Exports From Future LNG Plant
The Department of Energy on July 31 approved exports of up to 1.53 Bcf of gas daily from a liquefaction project planned near Pascagoula, Mississippi.
Under the DOE authorization, gas could be exported to any country with which the U.S. does not have a free-trade agreement requiring equal treatment of foreign and domestic gas customers.
The Federal Energy Regulatory Commission approved construction and operation of the Gulf LNG liquefaction plant on July 16.