Biden EPA loosens Trump rule limiting states’ ability to reject pipelines

The Environmental Protection Agency on Friday issued a joint memo with the U.S. Department of the Army allowing states and tribes to extend the finalization process for water permits after a Trump-era rule imposed a one-year window.

The memo directs the U.S. Army Corps of Engineers to wait the maximum amount of time to finalize 41 Nationwide Permits proposed under the act in September. The Trump-era rule provided a window of only a year to make a final decision under the Clean Water Act for oil and gas project permitting. While the CWA allows states and tribes to weigh in on projects that run through waterways, the 2020 rule reduced the approvals required at the state and tribal level.

The memo outlines scenarios under which state or tribal governments may take longer than a year to approve or deny projects, such as cases where “they identify factors and circumstances that warrant extending the reasonable period of time.”

“While EPA moves expeditiously to revise the 2020 rule, it is essential that the agencies address pressing implementation challenges that have been raised by our co-regulators,” Assistant Administrator for EPA’s Office of Water Radhika Fox said in a statement. “Today’s action provides guidance to maximize flexibilities and support the authority of states and Tribes to protect their waters.”

The Biden EPA has been critical of the Trump-era rule in the past, and EPA Administrator Michael Regan has said that as head of the agency he would take action to roll back regulations he felt undermined local protective authority.

Five Democratic governors had also previously asked the Biden administration to intervene, asking the federal government to delay finalization in a May letter.

“[P]recipitous action by the Corps to finalize permits based on the previous administration’s flawed Section 401 rule and nationwide permitting will greatly undermine the chances of a successful resolution,” wrote the governors of Washington, Oregon, Connecticut, California and New Mexico. “Even states that are not covered by nationwide permits share these concerns and fear that this approach may be extended to programmatic general permits in those Army Corps regions.”