As we head towards year-end permitting negotiations, the Clean Water Act has emerged as a key component of a broader reform package that will also include NEPA, transmission, and efforts to limit the ping-ponging treatment of energy sources between administrations.
The Clean Water Act has received relatively little attention compared to laws like NEPA. This is in part because its problems have historically been viewed, incorrectly, as just a parochial concern of the pipeline industry.
In particular, Section 401 of the Clean Water Act, also known as the State Water Quality Certification, allows states to “grant, deny, or waive certification for federal permits that may result in a discharge into waters of the United States.” This has allowed (typically) blue states to veto or attach severe conditions to pipeline projects, freezing investment and cutting off entire parts of the country from natural gas access – despite the fact that these projects already require a separate federal layer of water permitting and review.
