Senators Seek to Rein in State Power Over Key Environmental Permit

In this March 28, 2017, file photo, a train near hauls coal mined from Wyoming's Powder River Basin near Bill, Wyo.

In this March 28, 2017, file photo, a train near hauls coal mined from Wyoming's Powder River Basin near Bill, Wyo. AP Photo/Mead Gruver

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A lawyer with the Natural Resources Defense Council said the GOP-backed legislation threatens to “neuter the rights of all 50 states to protect their rivers, streams and coastal waters.”

Senate Republicans from states with sizable coal and natural gas industries are looking to impose new restrictions on the authority states have to issue a clean water permit required for the construction of some pipelines and other energy infrastructure projects.

U.S. Sen. John Barrasso, who chairs the Environment and Public Works Committee, is the lead sponsor of the legislation. “The water quality certification process is being abused by a few states in order to delay important projects,” Barrasso said in a statement.

The bill would modify Section 401 of the Clean Water Act. Under that section of federal law, those applying for federal licenses and permits for activities that may involve a “discharge” into certain bodies of water need approval from the state where the discharge will originate.

This approval involves states certifying that the discharge will comply with the Clean Water Act, including water quality standards. The process gives states a way to prevent projects from gaining federal approval, and also enables them to impose conditions on federal permits, a 2015 Congressional Research Service report explains.

A summary of the legislation introduced on Tuesday says that it would place new “procedural guardrails and requirements” on states processing requests for Section 401 certifications.

“States hostile to fossil fuels have been taking advantage of loopholes in the Clean Water Act 401 certification process to block projects they simply don’t like,” said U.S. Sen. Jim Inhofe.

The Oklahoma Republican, who’s a cosponsor of the bill, charges that “liberal environmentalists” are blocking interstate liquified natural gas pipeline projects, crimping the flow of domestically produced natural gas to the Northeast. His state produced about 9 percent of U.S. dry natural gas in 2016, according to the U.S. Department of Energy.

Conservation groups criticized the newly released legislation.

"These politicians are just upset that states are acting in the best interest of their residents instead of the polluting corporations funding their campaigns,” said Kelly Martin, the director of the Sierra Club’s Beyond Dirty Fuels Campaign.

Doug Obegi, a senior attorney at the Natural Resources Defense Council, said the bill would “neuter the rights of all 50 states to protect their rivers, streams and coastal waters.”

“Section 401 of the Clean Water Act is essential to ensure that the federal government does not override state environmental laws,” he added. “This bill would eviscerate these essential protections and undermine states’ rights, and Congress should reject it out of hand.”

The summary of the bill said it would clarify that the scope of Section 401 reviews “is limited to water quality impacts only.” States, when evaluating water quality, would only be able to consider potential discharges from a federally permitted or licensed activity itself, not other sources. The legislation would also require states to “publish clear requirements” for water quality certification requests.

Another provision calls for states to tell project applicants seeking certifications within 90 days whether they have provided all of the materials needed to process the request.

“This legislation returns the process to what it was originally designed for—protecting America’s water,” Barrasso said.

The senator, who is up for reelection this year, called out Washington state in his statement, saying the state had “hijacked” authority provided by the Section 401 certification process.

A spokesman for Washington Gov. Jay Inslee, a Democrat, did not immediately reply to an emailed request for comment in response.

Washington last year declined to issue a Section 401 certification for Millennium Bulk Terminals to construct and operate a coal export terminal near Longview, on the Columbia River. The project would have provided a departure point for shipping coal by sea to Asia.

Wyoming is the top coal-producing state in the U.S. It produced 41 percent of the nation’s coal in 2016, according to the Department of Energy.

The Washington Department of Ecology in an announcement about the certification denial last year said the terminal would involve filling 24 acres of wetlands and dredging about 41 acres of the river.

In an article about the state’s decision last December, attorneys with Marten Law PLLC noted that the department identified numerous grounds for the Section 401 denial.

But they added: “a key theme” was the agency’s contention that Millennium failed to provide repeatedly requested information on several water quality issues, inhibiting the state’s ability to assess whether the project would comply with water quality standards.

Millennium Bulk Terminals filed an administrative appeal with the state last October protesting the Section 401 denial.

Meanwhile, in January, its parent company, Lighthouse Resources, Inc., filed a lawsuit in federal court over how the state handled permitting for the proposed project.

The suit alleges, among other things, that the state’s denial of the Section 401 certification was not based on water quality and that the Washington Department of Ecology instead “denied the certification based almost entirely on effects that would be caused by rail carriers transporting coal into Washington from Montana and Wyoming.”

The introduction of the Section 401 legislation comes after Barrasso in early July released a proposal to make controversial changes to the Endangered Species Act, the primary federal law for protecting animals and plants that are at risk of extinction.

Two other GOP senators joined Barrasso and Inhofe sponsoring the legislation released on Tuesday. They are Sen. Shelley Moore Capito, of West Virginia, which produced 11 percent of the nation’s coal in 2016 and was the ninth-largest natural gas producing state that year, and Sen. Steve Daines, of Montana, which, according to the Energy Department, holds the nation's largest recoverable coal reserves.

Bill Lucia is a Senior Reporter for Government Executive's Route Fifty and is based in Washington, D.C.

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