A rule giving states and tribes up to one year to decide on Clean Water Act certifications for energy and other infrastructure projects was proposed Aug. 9 by the Environmental Protection Agency.
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 statement. EPA will take public comment on the proposal for 60 days following publication in the Federal Register.
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 upon receipt of a certification application, the proposal said. The proposal follows guidance EPA issued June 7, which drew a strong protest from 14 state attorneys general, including those in California, New Mexico, Oregon and Washington.
The guidance says 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 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 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 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, Wash.
The proposed rule, if finalized, likely would be challenged by states. In a May 24 comment filed with EPA, 16 state attorneys general and heads of state environmental agencies warned against regulatory changes 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 comment said.
In addition, the comment 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 re-apply 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 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.