Western Wire

A new rule meant to end the practice of delaying critical energy and transportation infrastructure projects for political purposes has been finalized by the Environmental Protection Agency (EPA) this week.

EPA Administrator Andrew Wheeler announced a final rule on Section 401 of the Clean Water Act, a change that will promote the timely review of infrastructure projects. The new rule makes good on a pledge President Trump made in an executive order last spring, and has been praised by western lawmakers, who see it as an important step to promote energy infrastructure projects and American energy independence.

“This rule will help ensure certain states can no longer abuse the water certification process for political purposes,” said Wyoming Sen. John Barrasso (R).

“The state of Washington has hijacked this process and blocked Wyoming coal from being exported. The Trump administration’s rule will allow important energy infrastructure projects to get done faster. It’s an important step in the right direction to help Wyoming coal and other energy markets.”

Section 401 is portion of the Clean Water Act that gives state and tribal governments authority to assess potential water quality impacts of federally permitted or licensed projects. Though it was intended to be a tool to protect water quality, it has been used to stymie energy infrastructure projects, especially in the west.

Wheeler said the purpose of the rule reform was to end the practice of endless delays and other efforts to halt projects in recent years.

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure,” said Wheeler.

“Today, we are following through on President Trump’s Executive Order to curb abuses of the Clean Water Act that have held our nation’s energy infrastructure projects hostage, and to put in place clear guidelines that finally give these projects a path forward,” he continued.

Executive Order 13868, which Trump issued in April 2019, directed the EPA to review Section 401 and related regulations to clarify the point when Section 401 certification is triggered and to explain the EPA’s role and statutory responsibility. It also establishes a timeline for the review process, requiring final action to be taken within one year of receiving a certification request.

Barrasso is one of several lawmakers from energy producing states who have made Section 401 reform a personal priority.

Along with Sens. Jim Inhofe (R-OK), Shelley Moore Capito (R-WV), Mike Enzi (R-WY), and Steve Daines (R-MT), Barrasso called on EPA to re-evaluate implementation of section 401 in an October 2018 letter to then-Acting Administrator Andrew Wheeler expressing their concern over “a troubling trend directed at fossil energy projects” that could be used to stop a broader range of projects in the future.

“A select number of states have hijacked Section 401 to delay or block the development of natural gas pipelines and a coal export terminal,” the senators wrote. “While the focus of these abuses today is fossil energy, the approach could be used to target any type of project that is disfavored politically.”

The EPA held consultations and hearings about the proposed reforms last year and received

However, the extensive comment process still wasn’t enough for some, including states that have used water quality concerns to halt energy infrastructure projects in the past. New York Department of Environmental Conservation Commissioner Basil Seggos pledged to “continue to fight this administration’s unlawful attempt to limit our authority to protect state waters.”

“This action is nothing short of a federal power grab that would strip New York and all states of our authority to protect clean water and public health,” he said. “New York won’t stand for it.”

The State of New York used water quality permits to block the construction of the Constitution pipeline in May, a move that irritated neighboring states. Section 401 reform has the potential to open the New York market to energy produced by neighboring states.

“Section 401 of the Clean Water Act has been abused by liberal state governments for years to politically attack the fossil fuel industry,” said West Virginia Sen. Shelley Moore Capito (R). “The policy announced today means West Virginia producers could finally have a fair shot at selling affordable natural gas to consumers in New England and elsewhere around the country. The result of states like New York blocking new pipeline construction is that our fellow Americans must pay more for dirtier foreign energy, such as polluting fuel oil, often from hostile regimes like Russia.”