WASHINGTON, D.C. — U.S. Senator Shelley Moore Capito (R-W.Va.), Ranking Member of the Environment and Public Works (EPW) Committee, joined her colleague John Barrasso (R-Wyo.) in introducing the Water Quality Certification Improvement Act of 2021.

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.

“This bill makes important clarifications so states can no longer weaponize Section 401 and veto construction projects like pipelines for reasons unrelated to water quality. This environmental ruse disregards the intent of Section 401 and is a tool for those who want to stop important infrastructure projects. The Water Quality Certification Improvement Act would clarify the scope of Section 401 to put an end to this abuse,” Ranking Member Capito said.

“The water quality certification process is being abused in order to delay important energy projects,” Senator Barrasso said. “Washington state has hijacked the water quality certification process and blocked Wyoming coal from being exported. Workers across the West would benefit from the coal export terminal Washington state has blocked. Washington state’s obstruction is about politics, not water quality. Similarly, east coast states are using these authorities to block natural gas pipeline projects. We shouldn’t weaken our economy and make America dependent on foreign energy. Our legislation ensures the water quality certification process is used only to protect America’s water, not further political agendas.”

“States like Washington and New York have abused the Clean Water Act process, denying projects for reasons outside its scope. Regulatory certainty is imperative to right-size the role of activist-driven states,” Senator Cramer said. “Our bill would place procedural guardrails and requirements on states as they process requests for certification in order to prevent future abuses.”

“The Section 401 certification process has long been riddled with controversy, uncertainty, and delay. In some cases, the process has been weaponized by certain states to stymie projects they oppose for purely political reasons. This legislation provides clarity that the Clean Water Act Section 401 certification process is about water quality only, the clear intent of the law. I’m pleased to join with Senator Barrasso and colleagues to bring some certainty to this regulatory nightmare,” Senator Lummis said.

The Water Quality Certification Improvement Act of 2021 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.

The legislation is cosponsored by Senators Kevin Cramer (R-N.D.), Steve Daines (R-Mont.), Jim Inhofe (R-Okla.), Cynthia Lummis (R-Wyo.), and Pat Toomey (R-Pa.). Representative David McKinley (R-W.Va.-01) also introduced the companion bill in the U.S. House of Representatives.

BACKGROUND:

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

On October 4, 2018, Senators Capito, Barrasso, Daines, Inhofe, and Enzi sent a letter to Andrew Wheeler, Environmental Protection Agency then-Acting Administrator, regarding the implementation of Section 401 of the Clean Water Act. In the letter, the senators asked Wheeler to provide implementation direction to federal agencies regarding Section 401, in light of recent abuses by certain states.

Read the Water Quality Certification Improvement Act of 2021 here.

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