Underground Construction - November 2020 - 12

WASHINGTONWATCH

Stephen Barlas | Washington Editor

FERC Wants One-Year Limit on State
Consideration of Water Quality Permits
The Federal Energy Regulatory
Commission (FERC) plans to apply to
transmission pipelines the new Federal
Clean Water Act requirement limiting
state challenges to construction projects
in and around wetlands.
In September, FERC proposed a
rule affecting pipelines, per a general
Environmental Protection Agency (EPA)
rule finalized in June 2020. That rule
gives states and localities one year to
decide on a company's water certification
application for a construction project.
If the state agency does not act one way
or the other in one year, the federal
permitting agency - whether the Army
Corps, FERC, Coast Guard or any other -
is able to move forward on the project.
The Clean Water Act's section 401
gives states broad authority to ensure
that large, federally approved projects
will meet local water quality standards,
pollution limits and other requirements.
Through these certifications, states have
required that federal dams preserve
stream flows necessary for fish and
aquatic life; that roads and other projects
avoid, minimize and mitigate destruction
of marshes and wetlands; and that
industrial pollution sources, and oil and
gas pipelines control runoff and other
harmful water pollution.
Several environmental groups filed
lawsuits against the EPA rule, which
theoretically went into effect on Sept.
11, 2020. One filed by the Southern
Environmental Law Center included as
plaintiffs, the National Resources Defense
Council (NRDC). A former NRDC staffer
was recently nominated to fill one of two
open commissioner's slots at FERC. Mark
Drajem, a spokesman for the NRDC, said
the group is " taking a look at " FERC's
proposed rule.
A second lawsuit was filed by
Earthjustice on behalf of a number of
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NOVEMBER 2020 | UCONonline.com

Prior to the EPA final
rule, FERC rules declared
a state has " a reasonable
period of time " to issue a
water quality certification.
The Commission's regulations
establish for hydroelectric
projects a categorical
" reasonable period of time "
of one year, which was
also considered applicable
for pipeline projects.
American Indian nations. In its protest,
Earthjustice complained the EPA relied
heavily on FERC actions - wrongly,
Earthjustice alleged - in arguing the
positive merits of diminishing state and
local authority over construction approval
in wetland areas.
Writing to the EPA in the wake of
publication of its Section 401 proposed
rule, Earthjustice commented, " Indeed, for
gas pipelines under the jurisdiction of the
Federal Energy Regulatory Commission
- which constitute three of the four
case studies EPA cites in support of the
proposed rule - Congress recently and
explicitly affirmed the primacy of state
and tribal Clean Water Act authority
over these projects. "
The EPA's grant of prominence to
FERC in its rationale for the Section 401
final rule makes it likely that opponents
- including Earthjustice and the NRDC
- will now transfer that opposition to
FERC's proposed rule.
Being a federal permitting agency,
FERC requires state water quality
certifications. Prior to the EPA final
rule, FERC rules declared a state has " a
reasonable period of time " to issue a water
quality certification. The Commission's

regulations establish for hydroelectric
projects a categorical " reasonable period
of time " of one year, which was also
considered applicable for pipeline projects.
However, it was never a legal requirement.
That is what FERC wants to change in
defining one year " as a reasonable period
of time " for gas tranmission projects.
New York State's refusal to issue a
water quality certification for Williams'
proposed Constitution pipeline, first
approved by FERC in 2014, was a highvisibility example of a state starting the
one-year timetable, then stopping and
restarting it again, when asking Williams
for more environmental information.
Cancelled in February 2020, the
Williams pipeline would have bought
fracked gas from the Marcellus shale area
to New York City.
" Defeating the Constitution Pipeline
is an enormous victory for advocates
who have been fighting for eight years
to protect New York State and its
waterways, " said Earthjustice staff
attorney Moneen Nasmith in a statement.

Interstates Worry About Having
to Inspect Farm Taps
Will transmission pipelines now have to
worry about complying with distribution
pipeline regulations in addition to their
own? That is the concern with one of the
key provisions in a proposed rule from the
Pipeline and Hazardous Materials Safety
Administration (PHMSA).
The proposal includes a number of
very technical changes to rules aimed
at, according to the agency, easing
" regulatory burdens on the construction,
operation and maintenance of gas
transmission, distribution and gathering
pipeline systems. "
Concerning interstate pipelines is the
provision involving " farm taps, " individual
service lines directly connected to
transmission or regulated gathering lines.
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Underground Construction - November 2020

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