Lengths of pipe wait to be laid in the ground along the under-construction Mountain Valley Pipeline near Elliston, Virginia, U.S., September 29, 2019. Picture taken September 29, 2019. Photo by Charles Motoller/ Reuters
WASHINGTON (AP) — States and Native American tribes will have more power to block energy projects such as natural gas pipelines that could pollute rivers and streams under a final rule released Thursday by the Biden administration.
The rule, which takes effect in November, reverses a Trump-era measure that limited the ability of states and tribes to review federally regulated pipelines, dams and other projects within their borders. The Environmental Protection Agency says the new regulations will allow local authorities to protect rivers and streams while supporting job-creating infrastructure projects.
“We actually think this is going to be great for the country,” said Radhika Fox, deputy water administrator. “This will allow us to balance the Biden administration’s goals of protecting our water resources and supporting all kinds of infrastructure projects that this nation so desperately needs.”
But Fox acknowledged during a briefing that the water rule would be significantly lightened from an earlier proposal because of a Supreme Court ruling that weakened regulations protecting millions of acres of wetlands. This decision, in a case known as Sackett v. EPA, has sharply limited the federal government’s jurisdiction over wetlands, requiring that wetlands be more clearly connected to other waters such as oceans and rivers. Conservationists said the May decision would remove protections for tens of millions of acres of wetlands.
Fox declined to propose a specific number of waterways that would no longer be protected. But she said the Sackett case “limits quite significantly the number of waters that we expect to be (under federal jurisdiction) when these determinations are made” by the Army Corps of Engineers.
The administration will work closely with states, tribes and territories to implement the rule, “but again, what is jurisdictional and what is not jurisdictional is determined by these very specific reviews” conducted by the Corps, a she declared.
In a separate action last month, the Biden administration weakened regulations protecting millions of acres of wetlands, saying it had no choice after the high court ruling. The rule defining “waters of the United States” marks a policy shift that departs from a half-century of federal rules governing the nation’s waterways.
The federal Clean Water Act allows states and tribes to review the effects of pipelines., dams and certain other federally regulated projects could have an impact on water quality within their borders. The Trump administration has sought to streamline fossil fuel development and made it harder for local officials to block projects.
The rule announced Thursday will return power to states, tribes and territories.
EPA Administrator Michael Regan said in a statement that the new rule affirms the authority of states, territories and tribes “to protect precious water resources while advancing government-authorized projects federal government in a transparent, timely and predictable manner.
The rule allows states and tribes to work with federal agencies to determine the review timeline – up to a maximum of one year – but provides a default deadline of six months if local authorities and the federal agency do not agree on a timetable.
The EPA said states should have the authority to look beyond pollution directly released into waterways and “comprehensively assess” a project’s impact on water quality local. The new rule gives local regulators more power to ensure they have the information they need before facing deadline pressure to issue or deny a permit, the EPA said.
Environmental groups said the new rule will make it easier for states and tribes to review projects that could harm water quality.
“This rule will help end the regulatory chaos that states and tribes have been operating in” since the Trump-era rollback, said Moneen Nasmith, a senior attorney at Earthjustice, which represented the Washington state tribes. , Nevada and Alaska in a lawsuit against the 2020 rule.
“Now state and tribal officials can much more confidently exercise their authority to review and reject” or add conditions to projects that threaten water quality, Nasmith said.
Industry groups have complained that a proposed rule released last year could cause unnecessary delays for a range of infrastructure projects, including pipelines, dams and bridges.
Former President Donald Trump had argued that states were inappropriately using the Clean Water Act to block needed fossil fuel projects.
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New York, for example, has used its review power to deny certain gas pipeline projects. Washington state refused to issue a permit for a coal export terminal in 2017.
In 2020, EPA officials said the Clean Water Act should not be used to hold infrastructure projects hostage and finalized its rule that limited state and tribal power.
The Trump rule was thrown out by a federal judge in 2021, but a divided Supreme Court later reinstated it. The court’s three liberal justices and Chief Justice John Roberts dissented, saying the rule’s supporters had not demonstrated they would be sufficiently harmed by the lower court’s decision.
