In April of this year, President Trump issued E.O. 13,868, "Promoting Infrastructure and Economic Growth," which aimed to promote rapid progress in building out domestic oil and gas infrastructure.
To fulfill this goal, the Executive Order asked EPA to revise CWA guidance and regulations for CWA Section 401, which gives states and other local governments a say over whether projects that might result in the discharge of pollutants into their waters can be permitted. (Specifically, CWA Section 401 providesthat anyone applying for a federal permit "to conduct any activity ... which may result in any discharge into the navigable waters shall [obtain] a certification from the State in which the discharge originates ... that any such discharge will comply with" several relevant CWA sections.) In practice, obtaining this state and local certification became a hurdle for oil and gas pipeline projects, which often cross rivers and streams, and pose pollution risks during construction and operation.
Since President Trump's Executive Order issued two months ago, EPA has acted quickly to issue revised guidance streamlining state and local CWA 401 permitting. On June 7th, 2019, the EPA issued new guidance that supersedes guidance issued under the Obama Administration in 2010.
The new guidance seeks to shorten the timeframe and limit the scope of review for state CWA 401 permitting, as follows:
- State and local governments will be given a specific period of time, up to but never more than a year, to review permit applications. Whereas prior administrations left what was a "reasonable period of time" remain undefined, the new guidance suggests that the federal agency overseeing the permit will decide in each instance what that "reasonable period of time" shall be, and may limit it to periods less than a year.
- The review period will start earlier than before, "upon receipt of a written request for certification," rather than upon receipt of a "complete application." By setting this new trigger, the guidance not only moves the review period forward in time, but also prevents state and local governments from extending the effective review period by asking for new materials from the applicant to complete the application.
- The review period will be strictly enforced by the federal agency overseeing the permit, which will deem CWA 401 certification waived if the "reasonable period of time" expires without a decision.
- To prevent overly searching review or onerous conditions, the scope of the state or local government's review will be strictly limited to looking at water quality impacts of the planned activity, and any conditions they place on their permits will likewise be limited to actions that affect water quality. This limitation on scope will be enforced by the Office of General Counsel of the overseeing federal agency or the EPA, which may determine that waiver has occurred if the state or local government widens its review or imposes additional conditions.
- The state or local government may no longer ask for additional information in order to conduct their reviews. Instead, they must act only on the basis of information submitted by the applicant for the federal basis.
The restrictions embodied in the new guidance are likely to dismay state and local governments and environmentalists that have become accustomed to robust input on permitting decisions for projects that affect local waterways. Because the restrictions are based on aggressive interpretations of the text of the Clean Water Act, this new guidance will likely be subject to immediate court challenge as arbitrary and capricious, and contrary to law.