Republican senators on the Environment and Public Works Committee have introduced legislation to codify the Trump administration’s 2020 Clean Water Act (CWA) Section 401 Certification Rule, shortly after the Biden administration made the decision to return to the pre-2015 definition of waters of the United States (WOTUS).
Sen. Shelley Moore Capito (R-WV) sponsored the bill and has the support of just under a dozen cosponsors. The senators said the Section 401 Certification Act will ensure infrastructure projects are not denied permits “because of political motives rather than actually protecting water quality.”
Section 401 of the CWA gives states and Tribes the authority to assess potential water quality impacts of discharges from federally permitted or licensed projects that may affect navigable waters within their borders. Moore Capito said, if properly implemented, the rule is an important tool that can protect water quality while allowing federal permitting and licensing processes to proceed in a timely manner.
She added that Congress did not intend for it to be used to address political interests that do not relate to water quality, such as “blanket opposition to certain electric transmission, pipeline, road construction, agricultural and other projects.”
“The need for this legislation has become pressing due to the U.S. District Court for the Northern District of California vacating and remanding the 401 Rule on October 21, 2021,” read a one-pager of the bill. “While (the Environmental Protection Agency) has not explicitly stated that they will apply this ruling nationwide, that is likely, based on the agency’s actions on the 2020 Navigable Waters Protection Rule.”
The bill would require statutory and regulatory timelines for a state’s review and action on a Section 401 certification and require final action to be taken within one year of receiving a certification request. The legislation also clarifies the scope of Section 401, including that certification is limited to a project’s actual potential impact on waters.
The senators say this will make it clear that when states look at issues other than the impact on water quality—such as climate change or pipeline development—they are going beyond the scope of the Clean Water Act.
The bill would also “reaffirm the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process” and promote early engagement and coordination among project proponents, certifying authorities, and federal licensing and permitting agencies.
“Liberal states are maliciously misusing Section 401 to prevent critical infrastructure projects, such as pipelines, from being built,” said Capito, ranking member of the committee. “The lack of sufficient infrastructure to transport natural gas contributes to higher energy prices across the country.” — Anna Miller, WLJ managing editor
