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Over Troubled Water: Changes to Clean Water Act Regulations and Permitting Process that All Project Developers Should Know | Obermayer Rebmann Maxwell & Hippel LLP - Energy And Water Development Corp

Over Troubled Water: Changes to Clean Water Act Regulations and Permitting Process that All Project Developers Should Know | Obermayer Rebmann Maxwell & Hippel LLP


The Clean Water Act was signed into law to control the discharge of hazardous waste into our country’s waters. Since 1971, the Environmental Protection Agency (“EPA”) has interpreted the Clean Water Act and its predecessor to grant power to certify permits for any development at or around these protected waters to state and tribal authorities (“1971 Rule”). In 2020, the EPA reinterpreted language in the Clean Water Act and limited the power of state and tribal authorities in the permitting process (“2020 Rule”). For example, under the 1971 Rule, state and tribal authorities could impose conditions only tangentially related to water quality, such as requirements on air quality, transportation issues, or fish and wildlife protection; under the 2020 Rule, all requirements imposed by these authorities had to be directly related to water quality.

According to the EPA, the purpose of the 2020 change was to improve the predictability and speed of the issuance of certifications. For example, state and trial authorities have a one-year timeframe during which they must decide whether to certify a permit; however, before 2020, there were no instructions as to when this one-year timeframe began, which the 2020 Rule clarified was on the date of the certification request. This and other changes allegedly would benefit project developers, who had expressed frustration, claiming that the arduous certification process was being used to delay and/or to block new infrastructure projects, even when those projects were unrelated to the protection of water quality.

Towards the end of last year, a federal judge in California annulled the 2020 Rule and reinstated the 1971 Rule, thereby again allowing state and trial authorities to have a wide amount of say in the permitting process. According to the judge, the EPA and intervening oil and gas industry interests – including the American Petroleum Institute, the Interstate Natural Gas Association of America, and the National Hydropower Association¹ – had failed “adequately [to] explain how it could so radically depart” from what the United States Supreme Court had previously dubbed “the most reasonable interpretation of the statute” in a 1994 decision upholding the 1971 Rule.

The energy industry organizations and several states have appealed the decision to the Ninth Circuit as they believe the lower court’s ruling, to be a “remarkable judicial overreach.” Conversely, the federal government and a different group of states – including New Jersey — are requesting that the Ninth Circuit affirm the lower court’s holding. Although this case is based in California, the outcome of its appeal will have repercussions on the Clean Water Act permitting process throughout the country, including in Pennsylvania and New Jersey.

This appeal is not the only major Clean Water Act case pending before the courts. The United States Supreme Court also decided in January of this year to weigh in on how federal courts and agencies should determine whether a body of water is even subject to the Clean Water Act’s jurisdiction. If a body of water is protected under the Clean Water Act, federal agencies can require permits with certain conditions for any development project that is proposed in any area near the body of water. Depending on the High Court’s ruling, fewer waters may be subject to Clean Water Act permitting, which would be a benefit to developers.

Until these matters are resolved, environmental advocates, project developers, and regulators all remain in limbo.


¹ Energy interests are involved, because pipelines are among the development projects that could more easily be blocked under the 1971 Rule, compared to the 2020 Rule.

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