Mr. Chairman, I rise in strong opposition to H.R. 1, particularly division C, which was introduced in the House as H.R. 1152, and was marked up by the Committee on Transportation and Infrastructure with strong opposition from my Democratic…
Mr. Chairman, I rise in strong opposition to H.R. 1, particularly division C, which was introduced in the House as H.R. 1152, and was marked up by the Committee on Transportation and Infrastructure with strong opposition from my Democratic colleagues. The polluters over the people act let polluters off the hook for harmful actions and damaging impacts to our rivers, lakes, and our streams that our local communities rely on for clean, safe drinking water.
Division C is an attack on section 401 of the Clean Water Act, which is a key mechanism for States and Tribes to evaluate projects that cross within their borders and have an impact on their waters and environment for decades.
Section 401 has been a successful example of cooperative federalism, while preserving State authority to manage their natural resources. Section 401 has been a well-supported, effective tool since the beginning of the Clean Water Act, but the Trump administration found a way to make it a scapegoat for the failure of senseless and harmfully polluting mega-projects.
The provisions in the polluters over people act will tie the hands of States and Tribes seeking to preserve stream flow for their water supplies, to prevent runoff and water pollution, and to minimize impacts to flood-preventing wetlands. It goes against the Clean Water Act's rights of States to prevent, reduce, and eliminate pollution.
First, in California, this bill would have huge impacts. For one, limiting analysis to only discharges would mean the State would be unable to consider the impact of the whole project, such as increasing impervious surfaces, or considering downstream effects. Our State is trying to preserve every drop of water we can get. Yet, this bill would stop my State from protecting its water supply from the adverse impacts of projects pursued by out-of-State interests.
Second, this bill places arbitrary, and likely impossible timelines on the States to act on permit requests. Despite how complicated or huge the project might be, this bill will severely limit the time allowed for a State to review its impact. My friends across the aisle may not realize this, but this bill may lead to greater numbers of project rejections as the State is pressured to respond without the time to fully analyze the project.
This bill is another attempt to gut--really gut--the Clean Water Act and allow pollution and industry to act without repercussion. We must defend human health, our economy, and the natural environment, and oppose the damaging bill that will harm local communities.
Mr. Chair, I include in the Record a letter from the State of California, State of Washington, and the State of New York in strong opposition to H.R. 1152, which is the bill that became division C, H.R. 1.
February 28, 2023.
Hon. Chairman Graves,
Committee on Transportation & Infrastructure,
Washington, DC.
Dear Chairman Graves: As the water quality certifying
agencies for California, New York, and Washington, we write
to underscore the importance of existing law in protecting
state waters from water pollution associated with federally
licensed projects. On February 24, 2023, Representatives
Rouzer and Graves introduced H.R. 1152--Water Quality
Certification and Energy Project Improvement Act of 2023, to
amend section 401 of the Clean Water Act that would, among
other things, revise section 401 to: (1) reduce the scope of
states' and tribes' 401 water quality certification authority
to apply only to the discharge to a water of the United
States, rather than the whole of the activity; (2) narrow
states' and tribes' section 401 water quality certification
authority to exclude much of what is required to comply with
water quality standards and implementation plans under
section 303 of the Clean Water Act; (3) remove the states'
and tribes' authority to ensure compliance with ``other
appropriate requirement[s] of State law''; (4) replace
references to an ``application'' for certification with a
``request'' for certification; and (5) impose a time
requirement on states and tribes to identify information
needed before taking an action on a certification request,
(6) make other changes to the law that introduce substantial
uncertainty about the scope of section 401 for project
proponents and state and tribes. Each of these changes would
undermine states' abilities to protect water quality within
their states and erode five decades of successful,
cooperative federalism. We ask that Congress preserve the
existing state authority in the Clean Water Act to
substantively review a project's effects on water quality
before a federal permit or license is issued.
Background
Under section 401 of the Clean Water Act, a federal agency
may not issue a permit or license to conduct any activity
that may result in any discharge into waters of the United
States unless a section 401 water quality certification is
issued, or certification is waived. The State Water Resources
Control Board (``State Water Board'') and the nine California
Regional Water Quality Control Boards (collectively, ``Water
Boards''), [NY Signatory], [WA Signatory] are certifying
agencies pursuant to section 401 of the Clean Water Act. In
all three states, the most common federal licenses subject to
section 401 are Clean Water Act section 404 dredge or fill
permits issued by the U.S. Army Corps of Engineers and
licenses for hydropower facilities issued by the Federal
Energy Regulatory Commission.
During the five decades since Congress enacted section 401
in the Water Quality Improvement Act of 1970, state water
quality agencies diligently processed thousands of section
401 requests each year with little controversy. The vast
majority of section 401 certifications were issued promptly
and most section 401 certifications were granted, with only a
handful of denials issued each year. Beginning around 2016,
prompted by a handful of high-profile section 401 denials,
some project applicants and industry lobbyists began claiming
that states were ``abusing'' their section 401 authority.
Such claims of abuse are not, and never have been, true. In
the handful of cases when project applicants have alleged
improper certification decisions or delay by state agencies,
they have been fully capable of protecting their rights under
section 401 through the traditional framework of
administrative and judicial review.
Section 401 is a cornerstone of the cooperative federalism
principles enshrined by the Clean Water Act
Cooperative federalism is a foundational component of the
Clean Water Act. As set forth in Clean Water Act section 101
(b), ``[i]t is the policy of the Congress to recognize,
preserve, and protect the primary responsibilities and rights
of States to prevent, reduce, and eliminate pollution'' and
``to plan the development and use . . . of land and water
resources.'' Section 510 further specifies that except as
expressly provided, nothing in the Clean Water Act shall
preclude or deny the right of any State to adopt or enforce
any standard or limitation respecting discharges of
pollutants or any requirement respecting control or abatement
of pollution.
The section 401 certification program is an embodiment of
these cooperative federalism principles. A state
certification is the mechanism of ensuring that a federal
license or permit is not used as an excuse to violate state
or federal water quality standards. As currently written, the
language in section 401 acknowledges that states are in the
best position to understand their own laws and that
additional conditions may be necessary to ensure compliance
with state law and applicable Clean Water Act requirements.
As the federal permitting or licensing agency is often not an
agency primarily tasked with managing environmental issues,
the federal agency may in fact be reliant on the
certification authority's expertise regarding water quality.
To prevent a section 401 certification from becoming a rubber
stamp, any revision to the section 401 language must preserve
an expansive view of the cooperative federalism principles
originally envisioned by the Clean Water Act and repeatedly
affirmed by the Supreme Court. PUD No. 1 of Jefferson Cnty.
v. Washington Dep't of Ecology, 511 U.S. 700 (1994); S.D.
Warren Co. v. Maine Bd. of Env't Prot., 547 U.S. 370 (2006).
The Clean Water Act should continue to protect the whole
range of water quality effects resulting from the
proposed activity
We strongly support the existing statutory language, which
gives states and tribes the authority to regulate the
potentially water-polluting activity as a whole, rather than
being limited to a strict interpretation of effects from only
the discharge, because regulation of the activity as a whole
protects waters from the widest range of impacts. States
should be able to protect water quality regardless of whether
the pollution or other water quality impacts would be
specifically attributable to a discharge or from some other
aspect of the activity being permitted. States should be able
to use the certification process to address impacts to
groundwater, impacts to isolated surface waters, or impacts
from non-point sources, all of which are likely not directly
attributable to the discharge to a water of the United
States, because these are water quality impacts that would
not occur without issuance of the federal permit or license.
The problems with limiting certifications to the discharge
rather than the whole of the activity would be particularly
impactful on the states' ability to protect water quality
during the decades long term of Federal Energy Regulatory
Commission (``FERC'') licenses in the hydropower licensing
context. States and tribes must be able to fully address the
water quality impacts of such activities as a whole during
the 30- to 50-year term of the FERC license to reduce
water quality impacts that, depending on the
circumstances, may not be attributable to a point-source
discharge, but result from the activity's construction,
operations, and facilities. Common water quality impacts
associated with hydropower activities include changes in
turbidity, sediment, siltation, temperature, habitat loss,
alterations to stream geomorphology, dissolved oxygen,
algal productivity and algal-produced toxins, erosion,
barriers to fish passage, alterations to stream
geomorphology, and reductions in stream flow. Each of
these impacts can have profound, generational impacts on
the state's water resources.
To prevent or minimize these potential impacts, states have
imposed, or considered the need for certification conditions
to protect water quality on project activities that fall
outside the typical understanding of point-source discharges,
such as requirements for minimum instream flows and ramping
rates; temperature management; aquatic invasive species
management; plans for gravel replenishment, large woody
material placement and other habitat measures; reservoir
operation plans; erosion and sediment management plans; and
monitoring and management of dissolved oxygen, mercury,
pesticides, and other constituents of concerns. Previously
issued certifications have typically included management,
monitoring, and reporting measures to ensure compliance with
water quality measures and to identify potential
modifications if circumstances change. Revising the statutory
language to contradict longstanding interpretations would
introduce confusion and invite arguments about the nexus
between the discharge and the impact, when a state or tribe's
focus should more appropriately be on all water quality
impacts resulting from the project. Introducing the concept
of whether the activity will ``directly result'' in a
discharge in subsection (a)(1) and (a)(4) would inject
additional uncertainty and potentially further limit the
certifying authority's ability to protect water quality.
Although the states would rely on their state authority to
continue to preserve robust protection of water quality
whenever possible, state authority would not be an available
remedy where state law is preempted by federal law. Because
the Federal Power Act preempts the field of hydropower
regulation absent an express exception to preemption, and
FERC project licenses are valid for a fixed period of up to
50 years, water quality certifications for FERC license
applications provide the states with a singular opportunity
to ensure compliance with the state's water quality standards
and other requirements. If the states' ability to regulate
FERC licensed projects to the same extent that it has been
able to for decades is significantly weakened, other, non-
FERC projects would be subject to more stringent requirements
to compensate for the failure of FERC-licensed projects to
contribute what would otherwise be their allocated
responsibility.
The Clean Water Act should continue to authorize
certifications to implement water quality standards and
implementation plans adopted or approved under section
303 of the Clean Water Act
Under section 401 of the Clean Water Act a water quality
certification implements the applicable provisions of
sections 301, 302, 303, 306 and 307 of the Clean Water Act
and any other appropriate requirement of state law. The most
important of the enumerated provisions of the Clean Water Act
is section 303, which provides for water quality standards
and implementation plans. Section 303 requires development
and approval of water quality standards, which consist of
designated uses, criteria, and anti-degradation policies;
establishment of total maximum daily loads, which allocate
responsibility for meeting standards that cannot be met
solely through compliance with the technology-based
requirements of the Clean Water Act; and implementation of a
continuing planning process.
In 1994, the Supreme Court upheld state authority to set
conditions of certification to protect uses designated as
part of the water quality standards under section 303. PUD
No. 1, 511 U.S. at 700. The Court rejected an argument that
certification is limited to implementing the criteria
component of those standards. Consistent with the Supreme
Court's ruling, states have made effective use water quality
certification authority to protect water quality needed for
commercial, tribal, and recreational fisheries and other
important uses of state waters.
The proposed revision to limit ``applicable provisions'' of
section 303 to ``requirement of state law implementing water
quality criteria under section 303 necessary to support the
designated use or uses of the receiving navigable waters''
could strip the states' authority to use their certification
authority to protect the uses of waters of the United States
designated as part of water quality standards under section
303. By inexplicably omitting any reference to federal
requirements that implement section 303, it would also create
substantial uncertainty about states' and tribes' ability to
enforce water quality criteria, total maximum daily loads,
and antidegradation requirements adopted by U.S. EPA.
Congress should not remove the states' authority to require
compliance with state water quality requirements
We strongly oppose the bill's proposed revisions that would
limit the certifying authority to ensuring compliance with
only specific sections of the Clean Water Act by deleting the
existing reference to ``any other appropriate requirement of
State law'' set forth in section 401 subsection (d). Such a
revision would disregard a state's right to impose more
stringent water quality requirements and be contrary to the
protective goals of
the Clean Water Act. As is accounted for and endorsed by the
Clean Water Act, many states have state-based programs and
attendant requirements that arguably or explicitly expand
beyond the state's Clean Water Act authorities. The Clean
Water Act expressly contemplated a state's authority to
establish and enforce more stringent state requirements
beyond the Clean Water Act. For example, certifications may
include monitoring and reporting requirements that arguably
go beyond ensuring compliance with specific sections of the
Clean Water Act, and instead help determine whether water
quality is being degraded or to shape the development of
future actions to protect water quality.
We urge Congress to refrain from making an unwarranted
intrusion into a state's authority to impose stricter
conditions to protect the quality of waters within its
borders.
Section 401 should preserve the certifying authority's
ability to define the contents of a request for
certification and create submission procedures
The bill proposes revising references to ``application'' to
be ``request.'' Although the intention behind that revision
is not clear, we support language that recognizes that the
certifying authority may define the contents of a request for
certification and create submission procedures. The state's
ability to define what is required for a request for
certification is significant because a receipt of such a
request is the trigger for the beginning of the reasonable
period of time for a certifying authority to act on the
request. The bill proposes an addition requiring certifying
authorities to ``publish requirements for certification,''
but it is not clear whether this language is an indirect
reference to a certifying authority's ability to define
required information for applications and submittal
procedures. To the extent that ``requirements'' were intended
to require the enactment of new state regulations, 30 days is
insufficient time to comply with public notice and comment
requirements for State Water Board adoption.
Section 401 should not impose an arbitrary time limit on the
certifying authority's ability to request information
The bill proposes revisions to subsection (a)(1) that
specify that by 90 days after request for a certification,
the certifying authority must inform the applicant if any
additional information is necessary for the certification
authority to take an action on the request. As explained
above, to the extent that the language requires the
certifying authority to identify what, if any, information is
necessary to submit a complete application for water quality
certification, many state laws, including California's, do
this. But the revised language may be construed as preventing
the states from requesting that the applicant clarify,
amplify, correct, or supplement information required in the
application, which is permissible under state law.
For these reasons, we write to ask that Congress preserve
the existing state authority in Clean Water Act Section 401
to substantively review a project's effects on water quality
before a federal permit or license is issued, and protect
five decades of successful, cooperative federalism.
Sincerely,
Eileen Sobeck,
Executive Director, California State Water Resources
Control Board.
Basil Seggos,
Commissioner, New York State Department of Environmental
Conservation.
Laura Watson,
Director, Washington State Department of Ecology.
In this letter, the States highlight how this legislation will undermine States' ability to protect water quality within their States, and erode five decades of successful, cooperative federalism.
Mr. Chair, I strongly oppose H.R. 1, the polluters over people act, and I urge my colleagues to do the same.