There are seemingly endless regulatory obstacles for critical infrastructure projects.
One of these obstacles is starting to get some much-needed attention: abuse of Section 401 of the Clean Water Act.
The Congressional Research Service has explained that Section 401 “requires that an applicant for a federal license or permit provide a certification that any discharges from the facility will comply with the act, including state-established water quality standard requirements.”
This provision is a good example of the cooperative federalism that characterizes the Clean Water Act. Under this federal statute, states can use the Section 401 certification process to ensure that state water quality will not be harmed through federally permitted activities.
But some states may be abusing this important power.
Last year, during a hearing that addressed Section 401 abuse and considered a potential legislative remedy, Sen. John Barrasso, R-Wyo., pointed out that some states have abused the Section 401 certification process:
Recently, a few states have hijacked the water quality certification process in order to delay important projects. The state of Washington has abused their authority to block the export of coal mined in Wyoming, Utah, Colorado, and Montana. The state of Washington has refused to grant a water quality certification for the Millennium Bulk Terminal project.
That Millennium Bulk Terminal project is a proposed large coal export facility along the Columbia River that would help export coal to Asia.
The state of Washington’s decision to block the project might have significant economic implications and may even harm foreign commerce. But this, by itself, is not evidence of Section 401 abuse. After all, states are afforded significant power under Section 401.
Here’s the abuse: In order to deny the Section 401 certification, the state of Washington heavily relied upon factors that have nothing to do with water, such as vehicle traffic, train noise, and rail safety. This section of the Clean Water Act does not give states a green light to veto projects for whatever reasons they desire.
The Water Quality Certification Improvement Act of 2018, sponsored by Barrasso, would have clarified that Section 401 reviews are limited to water quality issues.
Some organizations, such as the Western Governors’ Association, have expressed concerns about altering the Section 401 process in a manner that would limits the states’ ability to manage their water resources. Those concerns are understandable.
Any legislation to address this specific abuse should be drafted narrowly so that it only prohibits the consideration of non-water factors under Section 401, and in no way affects existing authority to directly address water concerns.
The Water Quality Certification Improvement Act of 2018, as Barrasso pointed out, would also have clarified that “states, when evaluating water quality, can only consider discharges from the federally permitted or licensed activity itself—not from other unrelated sources.”
In addition to this important clarification, any legislation should also address a closely related Section 401 abuse in which states are not merely considering unrelated discharges, but also expecting a federal permit applicant to take action to address pollution arising from unrelated discharges.
For example, in Maryland, Exelon is seeking to renew its Federal Energy Regulatory Commission license for its hydroelectric power plant. As a condition of securing a 401 certification, Maryland is allegedly requiring Exelon to remove water pollution that is not coming from the project, but instead coming from other sources.
The Section 401 certification process is not supposed to be a scheme for states to compel permit applicants to fix the state’s water problems. There are likely many other Section 401 abuses that Congress should address, including unnecessary delays imposed by states. But at a minimum, Congress should make these commonsense clarifications to existing law.