September 18, 2023

EPA Rule Makes It Easier For States To Reject Infrastructure Projects

As The Hill reported, the U.S. Environmental Protection Agency (EPA) has finalized a regulation that will make it easier for U.S. states to block infrastructure projects like pipelines. That is because the rule will allow states or tribes to consider any aspect of the project that has the potential to impact water quality as it weighs whether or not to block a project.

As the EPA explained in a press release, the Clean Water Act’s Section 401 enables states, territories, and authorized Tribes to protect their water quality from adverse impacts of construction or operation of federally permitted projects. Under Section 401, a federal agency may not issue a license or permit to conduct any activity that may result in any discharge into a water of the United States, unless the appropriate state, territory, or authorized Tribe issues a CWA Section 401 water quality certification or waives certification.

The EPA said the rule “enhances certification review and provides regulatory certainty to advance federally permitted projects” by establishing a six-month default timeframe (when the federal agency and certifying authority fail to reach an agreement) and a one-year maximum timeframe for certification review (the statutory maximum).

The EPA’s new regulation reverses a Trump administration rule that had limited the basis on which a state could block a project.

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