EPA Update Would Prevent Misuse of CWA On Infrastructure Projects

This week, the U.S. Environmental Protection Agency announced it would update Section 401 of the Clean Water Act, helping to accelerate and promote the construction of critical infrastructure projects. Across the country, New York and other states have misused Section 401 of the Clean Water Act as a means to block and delay oil and natural gas pipelines with reviews lacking a clear timeline for completion.

As EPA Administrator Andrew Wheeler explained, the new rule offers clearer guidelines by requiring states to complete the review process in one year:

“EPA is returning the Clean Water Act certification process under Section 401 to its original purpose, which is to review potential impacts that discharges from federally permitted projects may have on water resources, not to indefinitely delay or block critically important infrastructure.”

This update follows an Executive Order issued last year by the Trump Administration, which called upon the EPA to review regulations related to Section 401. These new updates both safeguard water and ensure the construction of important energy infrastructure.

Independent Petroleum Association of America Executive Vice President Lee Fuller issued the following statement on the announcement:

“It is important for states to be able to manage their waters under the delegated authority of the Clean Water Act.  But, this authority should not be allowed to block interstate commerce projects by using it as a method to target essential energy projects, like natural gas pipelines, when the real intent is to prevent energy development.  This action by the Environmental Protection Agency is a key step to prevent abuse of the Clean Water Act.”

Similarly, Robin Rodrick, American Petroleum Institute vice president for midstream and industry operations said:

“We support the Clean Water Act, and though certain states have continued to go well beyond its scope for water quality certifications, we hope the addition of a well-defined timeline and review process will provide certainty to operators as they develop infrastructure projects that meet state water quality standards.”

By limiting the review process to a year, projects will both receive the scrutiny they deserve, while still pushing forward and providing communities around the country with necessary energy infrastructure. As American Gas Association President Karen Harbert said:

“The new final rule will end the practice of states misusing Section 401, putting political ideology and the goal of blocking natural gas pipelines over the important task of protecting our nation’s water quality.”

Nice try, New York

Governor Cuomo and the state of New York have been active users of Section 401 to prevent natural gas infrastructure, like the Constitution, Northern Access and most recently, the Northeast Supply Enhancement pipelines, in the state, even as utilities warn of likely pipeline capacity and natural gas shortages.

In 2014, Gov. Cuomo’s administration banned the use of high-volume hydraulic fracturing in New York, solidifying the state’s position as a major importer of natural gas. Despite this, New York is the sixth largest natural gas consuming state in the country. In 2017 the state consumed nearly 1.26 trillion cubic feet (tcf) of natural gas, representing about 5 percent of total U.S. natural gas consumption.


The update is a necessary step in reducing redundancies and bureaucracy in the construction of crucial energy infrastructure across the country. The streamlining of these processes will only incentivize pipeline companies to invest more in states, providing jobs and energy to the communities that need them most.

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