On April 9, Sen. John Barrasso (R-WY), Chair of the Senate Environment and Public Works Committee, introduced the Water Quality Certification Improvement Act of 2019 (S. 1087). The legislation is cosponsored by Senators Steve Daines (R-MT), Jim Inhofe (R-OK), Shelley Moore Capito (R-WV), Mike Enzi (R-WY), and Kevin Cramer (R-ND). Rep. David McKinley (R-WV) will be introducing a companion bill in the House.
The bill amends Section 401 of the Clean Water Act (CWA) and would make several changes to existing law about the scope of review for water quality certification. Section 401 of the CWA provides states and authorized tribes with an opportunity to evaluate and determine whether the impacts of proposed federally licensed and permitted projects meet local water quality goals.
“The water quality certification process is being abused in order to delay important energy projects,” said Barrasso. My legislation ensures the water quality certification process is used only to protect America’s water, not further political agendas.”
Specifically, the legislation would:
- Clarify that the scope of a section 401 review is limited to water quality impacts only;
- Clarify that states, when evaluating water quality, can only consider discharges that would result from the federally permitted or licensed activity itself – not from other sources;
- Require states to publish clear requirements for water quality certification requests;
- Require states to make final decisions on whether to grant or deny a request in writing based only on water quality reasons; and
- Require states to inform a project applicant within 90 days whether the states have all of the materials needed to process a certification request.
Meanwhile, speaking to a gathering of state regulators in Virginia, EPW Committee Ranking Member Tom Carper (D-DE) expressed concerns about amending Sec. 401, stating, “It’s pretty clear to me that EPA and the U.S. Army Corps of Engineers plan to erode states’ abilities to assert their rights and protect their waters under Section 401 of the Clean Water Act, which allows states to modify or deny federal permits that do not adequately protect state waters or allow them to achieve their water quality standards.”
S. 1087 was introduced as President Trump signed an Executive Order to update guidance on states' authority under Sec. 401 of the Clean Water Act and to begin work on a more formal regulation on state implementation.
EPA Administrator Andrew Wheeler stated, ““Many states implement Section 401 of the Clean Water Act faithfully, however, on occasion, inconsistent implementation and outdated guidance and regulations have caused delays in infrastructure projects with significant national benefits EPA will immediately engage with our state and tribal partners to identify ways we can modernize the 401 certification process and accelerate infrastructure projects that will improve the lives of Americans,” in response to the Executive Order.
Read Sen. Barrasso’s press release on the bill.
Read EPW Ranking Member Carper’s (D-DE) statement on the legislation.