WASHINGTON, D.C. — Today, U.S. Senator John Barrasso (R-WY), chairman of the Senate Committee on Environment and Public Works (EPW), and Sens. Jim Inhofe (R-OK), Shelley Moore Capito (R-WV), Mike Enzi (R-WY), and Steve Daines (R-MT), sent a letter to Andrew Wheeler, Environmental Protection Agency (EPA) Acting Administrator, regarding implementation of Section 401 of the Clean Water Act.

In the letter, the senators ask Wheeler to provide implementation direction to federal agencies ­regarding Section 401, in light of recent abuses by certain states.

Read the full letter here and below.

Dear Acting Administrator Wheeler:

We are writing to request your review of the federal government’s implementation of Clean Water Act Section 401 to ensure it is consistent with the statute. We ask that you work with other federal agencies to determine whether new clarifying guidance or regulations are needed in light of recent abuses of the Section 401 process by certain states.

In the last few years, a troubling trend directed at fossil energy projects has arisen. A select number of states have hijacked Section 401 to delay or block the development of natural gas pipelines and a coal export terminal. While the focus of these abuses today is fossil energy, the approach could be used to target any type of project that is disfavored politically.

To address this concern, we introduced S. 3303, the Water Quality Certification Improvement Act of 2018. This bill clarifies appropriate considerations and processes to evaluate water quality impacts under Section 401. Recent obstruction of energy infrastructure projects has directly threatened national security by forcing reliance on foreign energy and increased air emissions.  This obstruction has hurt American workers, states, and tribes. 

We are firmly committed to states’ and tribes’ central role in protecting water resources, as we have maintained in other contexts. In the few instances mentioned above, Section 401 is currently being used inappropriately to “fight” projects rather than protect water quality.

As the primary agency responsible for implementation of the Clean Water Act,  the Environmental Protection Agency (EPA) plays a critical role in ensuring that the statute is fairly and uniformly applied. To our knowledge, the most recent EPA document regarding Section 401 is a 2010 interim “handbook” issued by the prior administration. EPA did not ask for public comment on the handbook, and it contains clear misstatements of law. For example, the handbook suggests that a state’s “reasonable period” of time to act on a request for a water quality certification begins to run when an application is complete. This is incorrect. That period begins to run when the state receives the application.

We ask that you take immediate steps to review this handbook and other EPA materials. We also request that that EPA – as the lead federal agency – work with other federal agencies to determine what government-wide direction is needed, including the need for new clarifying guidance or regulations. All parties must have a clear understanding of the appropriate scope of water quality certification decisions. The federal permits and licenses that trigger the water quality certification process are often issued by other federal agencies, including the Federal Energy Regulatory Commission and U.S. Army Corps of Engineers. EPA must ensure that these agencies have consistent, coordinated direction.  

Background Information:

On July 31, 2018, Barrasso, Inhofe, Capito, Enzi, and Daines introduced the Water Quality Certification Improvement Act of 2018. The bill amends section 401 of the Clean Water Act. The legislation makes several key clarifications to existing law about the appropriate scope of review for a water quality certification. It would also place procedural guardrails and requirements on states as they process requests for certification to prevent future abuses.

On August 16, 2018, the EPW committee held a legislative hearing titled, “Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, the Water Quality Certification Improvement Act of 2018.”