Senate Democrats to EPA chief: Don’t curtail states’ CWA authority

Three top Democrats on the US Environment and Public Works Committee urged Environmental Protection Agency Administrator Andrew R. Wheeler to reconsider the agency’s Aug. 22 proposal to revise states’ rights under Clean Water Act Section 401 to review, modify, or deny federal permits for energy projects.

“In our view, this is a full-throated refutation of the state authority explicitly preserved within the [CWA], and a total abdication of any pretense of cooperative federalism carefully created by Congress,” Sens. Thomas R. Carper (Del.), Tammy Duckworth (Ill.), and Cory Booker (NJ) said in their Oct. 21 letter to Wheeler.

Carper is the committee’s ranking minority member. Duckworth is the top Democrat on the committee’s Fisheries, Water, and Wildlife Subcommittee. Booker holds a similar position on the Superfund, Waste Management, and Regulatory Oversight Subcommittee.

“Each of us is a veteran of state and local government service. We believe deeply in the inherent capacity of our state and local governments to take the lead in addressing many of our societal challenges — particularly in our natural environments and especially as it relates to the quality of our waters,” they told Wheeler. “We know you believe the same thing, at least if we are to take you at your word as you promote a major redefinition of ‘waters of the US’ (WOTUS).

“What we cannot square is how this passion for states’ rights and abilities suddenly vanishes when those notable qualities become inconvenient,” the three Senate Democrats continued.

“Inconvenient, for example, when states exercising their lawful rights under the federal Clean Water Act determine that pipelines and deep-water coal terminals threaten their water quality. Or when a state’s exercise of its congressionally granted authority to regulate auto emissions more rigorously than EPA runs afoul of fossil fuel industry desires. Or when states and localities endeavor to act singly or collectively to control air emissions that compromise downwind public health and the global climate,” they told Wheeler.

The proposal was intended to make CWA Section 401 certification for proposed projects more predictable and timely by clarifying timeframes for certification, the scope of certification reviews and conditions, and related certification requirements and procedures, EPA said. A public comment period closed on Oct. 21, during which 20,446 comments were received.

Contact Nick Snow at [email protected]