June 8, 2020

EPA, White House Makes MSCI’s Supported Changes To Permitting Processes

The Trump administration last week took two actions that will speed up the permitting process and help get federal infrastructure projects underway more quickly.

First, the U.S. Environmental Protection Agency (EPA) issued a new regulation that, as The Washington Post explains, “would set a one-year deadline for states and tribes to certify or reject proposed projects—including pipelines, hydroelectric dams and industrial plants—that could discharge pollution into area waterways.” Specifically, the final rule:

  • Specifies statutory and regulatory timelines for review and action on a Clean Water Act (CWA) Section 401 certification—requiring final action to be taken within one year of receiving a certification request.
  • Clarifies the scope of the CWA’s Section 401, including explaining that 401 certification is triggered based on the potential for a project to result in a discharge from a point source into a water of the United States and when states look at issues other than the impact on water quality, they go beyond the scope of the CWA.
  • Explains EPA’s roles under Section 401.
  • Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.
  • Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

The Energy Equipment and Infrastructure Alliance (EEIA), which the Metals Service Center Institute is a member of, fought for these needed reforms. It says the two most important provisions are those to:

  • Prevent states from rejecting pipeline project permit applications on grounds unrelated to water quality (such as air quality or climate change); and
  • Requiring states to act on permit applications within one year from their original submission by the developer.

As the EEIA has noted, before to these clarifications, some states exploited ambiguities in the prior regulations to reject projects for political reasons. The new rules will become effective 60 days from their publication in the Federal Register, which is expected shortly. The final 289-page rule is available in pre-publication version here.

In related news: President Donald Trump signed an executive order that invokes emergency permitting procedures for infrastructure projects, including pipelines, that are otherwise delayed by regulatory roadblocks. This includes projects subject to CWA Section 404 water quality permits, the Army Corps of Engineers Nationwide 12 permit program, and the Endangered Species Act.

The order directs both the Army Corps of Engineers and the EPA to identify within 30 days projects that “may be subject to emergency treatment” under the Nationwide Permit program. Heads of federal agencies also “are directed to use, to the fullest extent possible and consistent with applicable law, the emergency Army Corps permitting provisions, to facilitate the nation’s economic recovery.” Environmental groups are expected to challenge the order.