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Proposed EPA Rules Could Limit State And Tribal Power To Block Infrastructure Projects

<p>This is an aerial view of the North Spit, the proposed site for the Jordan Cove liquified natural gas pipeline.</p>

Alex Derr

This is an aerial view of the North Spit, the proposed site for the Jordan Cove liquified natural gas pipeline.

The Trump administration is proposing new rules that would limit state and tribal power to block projects that they deem harmful to water quality.

The rules specifically would restrict these non-federal governments' authority to review the water quality impacts of projects that require a federal permit or license. These projects range from pipelines to hydropower facilities to dredging — any development that result in “discharge” into U.S. waters.

Under the Clean Water Act, states have the power to regulate water quality within their borders. In Oregon, that authority falls to the Department of Environmental Quality.

This authority to certify whether projects meet the standards of the Clean Water Act has been used by states to block projects that they deem to fall short of meeting water quality standards. For example, Washington used authority to block a coal export project called the Millennium Bulk Terminal in 2017.

The U.S. Environmental Protection Agency says the proposed rules “would provide greater clarity and regulatory certainty for the water quality certification process.”

Public comment on the proposed rules is open through Oct. 21.  Two public comment sessions will be held on the rules in early September, both in Salt Lake City.

Attorney Andrew Hawley with the Western Environmental Law Center said the Clean Water Act gives a state the ability to advocate for its citizens’ right to clean water.

“Essentially the administration is stacking the deck in a way that would make it impossible for states to play that vital role of protecting their communities and their citizens from the impacts of these types of projects,” Hawley said.

Changes proposed

The proposed rules would change the current paradigm in a several ways. First it would allow federal agencies to determine how long states have to complete their review of projects, and if states aren’t able to meet these timelines, they would forfeit their role in the process.

Sometimes it's during the state clean water certification process that regulators find the information submitted by a project developer is not sufficient to make an informed decision about potential water quality impacts. This was the case with Oregon DEQ’s recent denial of certification for the Jordan Cove liquefied natural gas terminal and pipeline project in southwestern Oregon.

Hawley said if federal agencies give states a shorter timeline to review the project, it could make it effectively impossible for state to do proper reviews of large projects.

“What will happen is that state won’t be able to meet these standards,” he said. “Then the federal agencies have the ability to say, ‘Well, this … decision doesn’t comply with these rules the EPA laid out, we’re just going to ignore it.'”

The new rules would also narrow what kinds of water quality impacts that a state or tribe is allowed to consider when determining the impacts of a project on waterways.

Jordan Cove impacts appear unlikely

After Oregon denied Jordan Cove’s water quality certification last May, state environmental regulators say the company has not yet reapplied.

Jordan Cove spokesperson Paul Vogel said the company is working with state officials to establish “expectations and timelines” before they refile.

“We expect to file again very soon — this fall,” he said. “And the timeline with DEQ and the 401 is all about that and nothing more.”

The EPA says it plans to publish a final rule by May 2020. Other federal agencies would have to initiate their own rule making process later that year.

This timeline would put the Jordan Cove application in process with DEQ before any new federal rules would take effect.

“Regardless of any discussions or proposals at the federal level, things are status quo in terms of our role and managing applications,” DEQ spokesperson Jennifer Flynt said in an email.

Copyright 2019 Oregon Public Broadcasting

Jes Burns is a reporter for OPB's Science & Environment unit. Jes has a degree in English literature from Duke University and a master's degree from the University of Oregon's School of Journalism and Communications.