Energy Commission Proposes Water Quality Certification Practices for Pipelines, Natural Gas Projects | Insights

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On Oct. 19, 2020, the Federal Energy Regulatory Commission (FERC) filed a Notice of Proposed Rulemaking in the Federal Register to start the 30-day comment period on its draft rule, which was published on the FERC website on Sept. 9. Pursuant to the Environmental Protection Agency's (EPA) Clean Water Act Section 401 Certification Rule and Executive Order 13868 on Promoting Energy Infrastructure and Economic Growth (issued April 10, 2019), FERC is proposing regulatory changes to categorically establish a one-year period of time for a state or tribal certifying authority to act on a water quality certification request related to natural gas pipelines and liquefied natural gas (LNG) projects pursuant to Section 3 or Section 7(c) of the Natural Gas Act (NGA). This one-year period is the maximum allowed by statute, consistent with FERC's hydroelectric project regulations and FERC's longstanding practice in pipeline and LNG proceedings.

Recognizing the historical complexity of proposed pipeline and LNG projects and the nature and potential need for studies of the discharge, FERC proposes to continue to use the statutory one-year waiver period as the "reasonable period of time" within which the certifying authority must act and to codify this waiver period in its regulations, with the one-year period measured from the date of receipt. This simple blanket rule avoids any ambiguity or administrative burden that may arise from a case-by-case approach and provides a shorter period subject to extensions. All stakeholders are now on notice for one year.

Comments are due by Nov. 18 and may be filed electronically with FERC on its website using Docket ID No. RM-18-000.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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