The US Senate Environment and Public Works Committee Chairman John A. Barrasso (R-Wyo.) and three other Senate Republicans introduced legislation on July 31 to change requirements and establish limits for individual states under Section 401 of the Clean Water Act.
“The water quality certification process is being abused by a few states in order to delay important projects,” said Barrasso. “The State of Washington has hijacked this authority and blocked Wyoming coal from being exported overseas. The coal terminal project would create jobs and directly benefit families in Wyoming, Washington, and other Western states. The State of New York has taken similar steps to slow the construction of natural gas pipelines.
“This kind of obstruction is about politics, not water quality,” he said. “This legislation returns the process to what it was originally designed for—protecting America’s water.” Sens. Shelly Moore Capito (W.Va.), Steve Daines (Mont.), and James M. Inhofe (Okla.) cosponsored the legislation.
Under the bill, the section would be amended to:
• Limit the scope of a state’s Section 401 review to water quality impacts only.
• Clarify that states, when evaluating water quality, only can consider discharges that would result from federally permitted or licensed activity itself, and not from other sources.
• Require that states publish clear requirements for water quality certification requests.
• Require that states make final decisions on whether to grant or deny a request in writing based only on water quality reasons.
• Require that states inform a project applicant within 90 days whether the states have all of the materials needed to process a certification request.
New York State’s Department of Environmental Conservation has used its Section 401 review authority several times to halt interstate gas pipeline projects that would bring more gas to neighboring states. The US Federal Energy Regulatory Commission ruled this past September that NYSDEC waived authority to issue or deny a water-quality certification for the Millennium gas pipeline’s 7.8-mile Valley Lateral in Orange County, NY, when NYSDEC did not act within the CWA’s Section 401 1-year timeframe (OGJ Online, Sept. 18, 2017).
Responding on July 31 to the bill’s introduction, Interstate Natural Gas Association of America Pres. Donald F. Santa hailed it as an effort to restore cooperative federalism.
“In recent years, a handful of states have used this provision of federal law to disrupt or delay infrastructure projects, sometimes using justifications unrelated to water quality. Cooperative federalism is upset, interstate commerce is disrupted, and the interests of other states are undermined when individual states step outside the role defined by Congress in Section 401,” he said.
“Providing clarity regarding the appropriate federal and state roles under Section 401 can restore the cooperative federalism Congress intended in this section of the Clean Water Act,” Santa said.
Contact Nick Snow at [email protected].
