Underground Construction - August 2022 - 11

WASHINGTONWATCH
Stephen Barlas | Washington, D.C. Editor
EPA, USACE Double-Team
Pipeline Construction
The Biden Administration is at it again with its latest regulatory
effort to stymie pipeline development. A few months
ago, the United States Army Corps of Engineers (USACE)
suggested new restrictions on general pipeline repair permit
NWP 12, which includes minimal dredge and fill near " waters
of the U.S. (WOTUS). "
Then, in June, the Environmental Protection Agency
(EPA) proposed a rule making it easier for states to block
even major pipeline construction for reasons having to do
with potential damage to rivers and streams from a range
of environmental, wildlife, historic-sites and other threats.
USACE cited section 404 of the Clean Water Act; EPA cited
section 402 of the same law.
EPA's proposed rule, Clean Water Act Section 401 Water
Quality Certification Improvement, gives states new ammunition
with which to deny a pipeline project the needed
certification for obtaining a federal permit to build or repair
a pipeline, where there might be environmental damage to
WOTUS. It would cancel a Trump administration final rule,
still in effect though the subject of a lawsuit, that limits states'
ability to refute a pipeline 401 certification.
While the EPA proposal, if finalized, could complicate all
kinds of pipeline construction, highways, etc. - major and
minor - for many reasons, the USACE effort would only hinder
pipelines. Nationwide Permit (NWP) 12 allows pipelines
to get expedited approval when a pipeline repair project will
cause " no more than minimal individual and cumulative adverse
effects to the environment. "
In 2021, USACE made some changes to NWP 12, which
is supposed to stay in effect for five years. As a general permit,
NWP 12 is much easier to obtain than an individual permit.
Even if approval is forthcoming, an individual permit costs
considerably more, in dollars and time.
In a May 27, 2022, letter to USACE, the Interstate
Natural Gas Association of America (INGAA) stated, " Any
modifications to NWP 12 that would lengthen the permitting
process would be inconsistent with Congress's goal of
creating a streamlined program to allow the Corps to focus
its resources on permitting projects with greater adverse environmental
impacts. "
For example, one INGAA member estimates that if an
individual permit is required, permitting schedules would be
extended between 300 percent and 1,000 percent, depending
on the complexity of the project.
USACE is considering expanding community outreach,
particularly in minority areas. It states, " Previous uses of NWP
12 have raised concerns identified in Executive Order 13990,
such as environmental justice, climate change impacts, drinking
water impacts and notice to impacted communities. "
Under the Biden administration's much broader section
401 revisions, a state would be allowed to determine whether
" any aspect " of an entire, federally licensed pipeline or other
project will comply with its water quality standards and then
deny certification of the project, within state borders, if it
chooses. States and tribes would also be able to waive or grant
certification, and do so with conditions.
That's a pivot from the Trump rule, which restricts each
state's scope of review to specific, possible point-sources of
water pollution associated with a federally licensed infrastructure
project. Trump's rule limits states to evaluating possible
discharges into WOTUS.
In a statement, American Gas Association President Karen
Harbert claimed states have dragged their feet on certifying
projects and expressed concern about the Biden EPA changes.
" It should not take longer to get the permits and permissions
for a pipeline than it does to build one, " she said. " We
are concerned that the proposed rule will veer from the intent
that Congress had when authoring the Clean Water Act and
will allow some states to delay and increase costs for essential
energy infrastructure. "
While the Trump Section 401 rule remains in effect, it's
in legal limbo. The rule was vacated in 2021 by a judge in the
U.S. District Court for the Northern District of California.
" Any modifications to NWP 12 that would
lengthen the permitting process would
be inconsistent with Congress's goal of
creating a streamlined program to allow
the Corps to focus its resources
on permitting projects with greater
adverse environmental impacts. "
UCONonline.com | AUGUST 2022
11
http://www.UCONonline.com
Underground Construction - August 2022

Table of Contents for the Digital Edition of Underground Construction - August 2022
