DEQ Issues Final Determination on 401 Water Quality Certification for the Keystone XL Pipeline Project
HELENA—The Montana Department of Environmental Quality (DEQ) has made a final determination to issue a Water Quality Certification, with conditions to protect water quality, for the U.S. Army Corps of Engineers approval of the Keystone XL Pipeline project. The project is located in eastern Montana.
The project requires a Water Quality Certification because the pipeline would cross 201 wetland and water body features, including streams and rivers, that are regulated under the federal Clean Water Act. This certification is only for water quality impacts and does not assess other possible impacts that could result from the project. DEQ has already addressed other potential impacts under the Major Facility Siting Act.
The conditions of the issuance include protections such as spill prevention and a reopener clause, which allows the certification to be reopened and modified to ensure ongoing compliance with applicable water quality standards. The conditions also set forth an oversight role for the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation Office of Environmental Protection to enable the Tribes to ensure compliance with their applicable water quality standards.
DEQ is allowed one year to review the certification after receiving a completed application. DEQ’s review includes an opportunity for the public to comment on the proposal. Following the review, DEQ may waive, deny or grant the certification with or without conditions.
DEQ invited public comments for a 67-day period on its preliminary determination to grant the certification and held a public hearing in November. The agency received more than 650 comments. Despite multiple extension requests from DEQ, the U.S. Army Corps of Engineers imposed timeline restrictions that cut short the one-year review. Consequently, DEQ was not able to consider and respond to all of the comments as required under state law before having to issue the certification.
“Public participation is an important part of the certification process under Montana law,” said DEQ Director Shaun McGrath. “DEQ was not given adequate time to meaningfully review the comments before the decision was due to the U.S. Army Corps of Engineers. However, if Montana were to miss the deadline that could be considered a waiver of certification. In order to ensure Montana’s water quality is protected, DEQ decided to issue a certification with conditions that address at least some of the public’s concerns.”
DEQ received a complete application from TransCanada Keystone Pipeline in August and was initially granted until early December to review certification. Due to high public interest, DEQ requested two extensions in order to ensure a reasonable amount of time to consider comments. The U.S. Army Corps of Engineers granted extensions to Jan. 5, 2021, then to Jan. 11, 2021. DEQ cannot consider and answer all of the public comments in the allotted time. Therefore, DEQ is granting the 401 Certification with conditions in order to ensure the proposed activities do not impact applicable water quality standards, are consistent with Montana’s Major Facility Siting Act approval and that the certification is not considered waived.
For more information and to review the full list of conditions for the certification, please visit: https://deq.mt.gov/DEQAdmin/mfs/keystonexl/keystonexlcomprehensive