Critics Warn Fed Proposal Could Hinder States from Protecting Waterways

Tom Johnson | August 12, 2019 | Energy & Environment
As Environmental Protection Agency moves to streamline the Clean Water Act, New Jersey activists wonder about effects on PennEast pipeline

Credit: Lindsay Lazarski/WHYY
Gas pipeline
The federal Environmental Protection Agency is moving to streamline a section of the Clean Water Act that states have used to hinder development of major energy projects that could impair their waterways.

The rule proposal, announced Friday by EPA Administrator Andrew Wheeler, is meant to comply with an executive order President Donald Trump issued this spring to limit the scope and time states would have to review energy projects, such as new oil and natural gas pipelines.

In Connecticut and New York, state officials have used Section 401 of the clean water law to effectively block major pipeline projects there. In New Jersey, critics of the controversial PennEast pipeline believe the provision is the best option for stopping the $1 billon, 120-mile pipeline that begins in Pennsylvania and ends in Mercer County.

After years of delay, PennEast Thursday applied for water quality, wetlands and other permits for the project to the New Jersey Department of Environmental Protection. It is unclear whether the federal rule could be adopted prior to a decision on those permits by the state agency.

Under the executive order, the EPA is scheduled to finalize the rule by May 2020, but it could move faster than that. The agency is accepting public comment on the proposal 60 days after it is published in the Federal Register.

“Our proposal is intended to help ensure that states adhere to the statutory language and intent of Clean Water Act,’’ Wheeler said in a statement announcing the rule proposal. “When implemented, this proposal will streamline the process for constructing new energy infrastructure projects that are good for American families, American workers, and the American economy.’’

EPA says old rules need updating

The agency said its existing certification rules have not been updated in nearly 50 years and are inconsistent with the text of the CWA Section 401, leading to confusion and unnecessary delays for infrastructure projects.

But Jeff Tittel, director of the New Jersey Sierra Club, argued the federal government is saying to the states they no longer have the authority to protect water quality in their waterways. “It’s the most effective tool states have to protect water quality,’’ Tittel said.

Even though most of the PennEast pipeline is in Pennsylvania, it still crosses as many as 38 C-1 streams, the most pristine and supposedly most protected waterways in New Jersey. “Basically, what President Trump has done is declare war on the Clean Water Act,’’ said Tittel, fearing other future steps by the administration could lead to further rollback in protections for wetlands, drinking water and toxics.

The proposal won backing from power suppliers and gas companies.

“With today’s proposed rule, the U.S. Environmental Protection Agency took meaningful steps to provide consistency and predictability to the permitting process for energy infrastructure,’’ said Scott Segal, director of the Electric Reliability Coordinating Council, a group of power suppliers.

The proposal comes at a juncture where Gov. Phil Murphy is facing opposition to his administration’s draft energy master plan, which is relatively silent on what the state should do about proposals to build new pipelines and gas-fired power plants. Many environmental groups want a moratorium on such projects.

Natural gas supplies more than 40 percent of the state’s electricity and provides heating for more than 70 percent of homes and businesses.