EPA Proposes Changes to Clean Water Act Rules
The measure tries to rein in states that have cited the law to block or delay pipeline projects
By Timothy Puko
Aug. 9, 2019
WASHINGTON--The Environmental Protection Agency is proposing a change in Clean Water Act regulations aimed at streamlining the approval process for permits that are often a sticking point for pipelines and other major infrastructure projects.
The proposed regulatory change is aimed at bolstering federal authority in granting these permits and at preventing states from overstepping their authority, EPA Administrator Andrew Wheeler said in an interview.
He singled out New York and its yearslong fight with Williams Co s. over the Constitution Pipeline and other stymied pipeline projects that have kept new natural-gas supply from reaching the Northeast.
"What we've seen is states using the Clean Water Act...to hold up these projects," Mr. Wheeler said. "It's a regulation to tell all the states to follow the law."
Mr. Wheeler signed a copy of the proposal Thursday evening, setting in motion a 60-day public comment period, and plans to announce it at an event Friday.
President Trump has promised to streamline government reviews and speed up energy projects. Interstate pipeline projects, in particular, have faced delays, with new lines to take natural gas to coastal consumers stalled for years under court and regulatory challenges.
The proposed measure targets New York and other states that have cited Clean Water Act authority in decisions that have blocked or delayed projects, EPA officials said. But some analysts think the move could have limited impact because states still have broad authority, both under the Clean Water Act and several other statutes, to slow permit reviews.
The proposed regulatory change would more clearly put a one-year deadline into agency policy that applies to states that have permitting authority under the Clean Water Act. Those states could also cite only water-quality issues in rejecting a permit.
"Modernizing and clarifying the EPA's regulations will help states, tribes, federal agencies, and project proponents know what is required...thereby reducing regulatory uncertainty," according to a copy of the proposal reviewed by The Wall Street Journal.
If states miss the deadline or cite another rationale for a rejection, their authority could be waived or invalidated. Permitting decisions would then revert to federal agencies like the Federal Energy Regulatory Commission or the U.S. Army Corps of Engineers.
Christopher Gray, spokesman at New York University School of Law's State Energy and Environmental Impact Center, which has worked with several state attorneys general on clean-energy issues, disputed the claim that states are abusing the law.
He said states frequently deal with companies that submit incomplete applications or omit critical data, a bigger cause for delays. That problem could get worse under the EPA's new proposal, which would give companies more incentive to hastily put together permits, knowing state permitting agencies have less wiggle room to manage the timeline, Mr. Gray said.
"This is another example of the Trump administration bending the definition of cooperative federalism to mean they'll respect the rights of states that agree with it politically and will go after states...when they don't," Mr. Gray said.
Environmentalists have been concerned about damage to wetlands and watersheds and the potential for growing demand for fossil fuels to worsen global warming, among other risks. But, without pipelines, some major cities haven't been able to get access to natural gas, and local prices have sometimes skyrocketed at times of peak demand.
Energy producers, pipeline companies and manufacturers have all been using their Washington trade groups to lobby for these changes. Mr. Wheeler plans to announce his proposal Friday in South Carolina at an event with the National Association of Manufacturers.
"By setting clear guidelines, the EPA is empowering manufacturers to invest in our people and communities with confidence and to work with state leaders to protect our water and our environment," the group's Chief Executive Jay Timmons said.
Write to Timothy Puko at tim.puko@wsj.com