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On June 1, the Environmental Protection Agency (EPA) finalized a rule restricting the rights of states, tribes and the public to challenge federal permits for energy projects through the use of the Clean Water Act.   The rule sets a one-year deadline for states and tribes to certify or deny proposed pipeline, hydroelectric or industrial plant projects that could affect waterways. Any review of projects would be limited to only water quality impacts under a new agency definition.

EPA Administrator Andrew Wheeler noted that some states had used the Act in the past to cause extended delays and trap energy projects in a bureaucratic Groundhog Day-type scenario and to hold projects hostage for long periods. “Our system of republican democracy does not allow for one state to dictate standards or decisions for the entire nations,” Wheeler has stated. New York denied a certification for the Constitution Pipeline, a 124-mile natural gas pipeline that would have run from Pennsylvania to New York, crossing rivers more than 200 times using sections the Clean Water Act. Both New Jersey and New York denied permits to the Williams Co. $1 billion Northeast Supply Enhancement pipeline project, citing both water quality and climate change concerns.

The national oil and gas industry trade association the American Petroleum Institute (API) released a statement noting that the “API believes this rule will provide a rigorous, consistent and transparent process for water quality certifications for energy developers and manufacturers, while ensuring that the public plays an important role in the regulatory process,” API Vice President for Midstream and Industry Operations Robin Rorick 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,” he added.

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