EPA to empower states to oppose pipelines, reversing Trump water quality rule

The US Environmental Protection Agency will seek to restore state authority to review and potentially oppose natural gas pipelines and other infrastructure through the control of critical water quality permits, the agency said June 2.

The action would undo a Trump-era regulation intended to prevent states from blocking such projects.

States, tribes and territories for decades possessed broad authority to halt projects or push changes to them under Section 401 of the federal Clean Water Act, which allows states to review whether federally approved infrastructure complies with standards for local water quality. But the administration of former President Donald Trump aimed to rein in state reviews after major pipeline projects hit a series of permitting roadblocks in recent years.

The EPA's new proposed rule sought to reverse major components of the Trump administration rule by giving state regulators more flexibility over what they consider in their reviews and more authority in setting review timelines.

'Broader' scope of reviews

The existing rule confined the scope of the state reviews to potential impacts on water quality and said state regulators should not consider other environmental factors. The new EPA proposal would reinstate "the broader and more environmentally protective scope of review," according to an EPA fact sheet.

"This approach allows a certifying authority to holistically evaluate the water quality impacts of a federally licensed or permitted project," the EPA said. "Certifying authorities may evaluate impacts from any aspect of the project activity with the potential to affect water quality."

The new EPA proposal would for the first time let states and other permitting authorities play a role in defining "a reasonable period of time" to conduct the permitting reviews. The Trump-era rule mandated that states decide on permits within a year.

"For 50 years, the Clean Water Act has protected water resources that are essential to thriving communities, vibrant ecosystems, and sustainable economic growth," EPA Administrator Michael Regan said in a statement. "EPA's proposed rule builds on this foundation by empowering states, territories, and Tribes to use congressionally granted authority to protect precious water resources while supporting much-needed infrastructure projects that create jobs and bolster our economy."

The Biden administration has been working on a replacement rule with the goal of issuing a final rule in spring 2023. The Trump rule remains the subject of a lengthy court battle. The US Supreme Court, in a 5-4 decision on April 6, stayed an October 2021 district court ruling that vacated the Trump administration's water quality certification rule. The decision restored the Trump-era rule pending an appeal before the 9th US Circuit Court of Appeals and until the Supreme Court considers a potential subsequent petition.

Opponents to the existing rule have argued that it altered federal-state dynamics on infrastructure projects in a way that comes at the expense of states, which they said are better suited to assess local water quality impacts, while industry groups had welcomed it as a check against delays.

Support from Democrats, environmental groups

Environmental advocacy groups and some Democrats praised the EPA's proposed rule, which will be open for public comment for 60 days once it is published in the federal register.

"The Clean Water Act quite clearly gives states, territories, and Tribes the ability to protect their water quality when projects are permitted or licensed," Senate Environment and Public Works Committee Chairman Tom Carper, Democrat-Delaware, said in a statement.

The Natural Resources Defense Council's director for federal water policy, Jon Devine, said the EPA proposal to restore power to states and tribes would leave bodies of water "better protected by the people who deeply understand their water resources, guided by science and law."

New Mexico Gov. Michelle Lujan Grisham said the proposed regulation would enable states, territories and tribes to bolster their economies "by protecting their water resources as they deem appropriate."