EPW Hearing Statement: Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, the Water Quality Certification Improvement Act of 2018

WASHINGTON, D.C. – Today, the U.S. Senate Environment and Public Works Committee held the hearing,      “Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, the Water Quality Certification Improvement Act of 2018.” Below is the opening statement of Ranking Member Tom Carper (D-Del.), as prepared for delivery:

“I thank you, Mr. Chairman, for giving us the opportunity to think fully about the importance of the Clean Water Act’s grant of authority to states under Section 401.  And I appreciate, as well, the willingness of our witnesses to share their expertise and perspectives on this important question.

“Mr. Chairman, this is a tough issue.  I realize it’s frustrating to developers when states have the capacity to say ‘no’ to energy infrastructure projects.

“I know from firsthand experience. Delaware was the favored site for a deepwater coal terminal on the Delaware Bay—a place of extraordinary beauty, ecological significance and economic value.  As important as the project was to those who wanted an outlet for their coal, it was a horrible fit for my state. The impact on our invaluable coastal wetlands would have been substantial and permanent. The resulting effect on coastal water quality, critical habitats, and the threatened, endangered and at-risk species—like the bald eagle and the red knot birds—that were dependent on these resources would have been, in a word, devastating.

“The answer to this challenge is not to take away the voices and the power of the states.  I say this not only as a recovering Governor, but also as someone who consistently tries to treat others the way I would want to be treated.

“As I suspect everyone here understands, the Clean Water Act is a model of cooperative federalism—a theme very popular with the Trump Administration, as it was with our recently departed EPA Administrator.  Section 101 of the Clean Water Act makes very clear Congress’ intention to:

“‘…recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter. . . .  Federal agencies shall co-operate with state and local agencies to develop comprehensive solutions to prevent, reduce, and eliminate pollution in concert with programs for managing water resources.’

“And Clean Water Act Section 401 requires that an applicant for a federal license or permit provide a certification that any discharges from the facility or project will comply with the Act, including state-established water quality standard requirements. It is because of this clear intent and the value of this authority to all the states in our union that the Western Governors’ Association and nine other state-affiliated organizations wrote to the House and Senate ‘[urging] Congress to reject any legislative or administrative effort that would diminish, impair or subordinate states’ ability to manage or protect water quality within their boundaries.’

“I realize the Western Governors and these other groups did not specifically address S. 3303 in their letter, but their letter was written before the Chairman introduced his bill.  One thing is quite clear in reading this legislation, however; it diminishes, impairs and subordinates states’ ability to manage or protect water quality within their boundaries. For example, the bill assumes that a project’s only water quality impacts are those related solely to the discharges associated with that project.  I can assure you—as would others in Western and Eastern states alike — that is not the case with hydropower facilities, natural gas pipelines that can cross hundreds of streams along their path, or any other significant and complex infrastructure project.

“At best, there seems to be some confusion that Section 401 only refers to discharges.  But that is not at all the case.  True, the project in question must have a discharge in order for Section 401 to apply, but once it does, Congress fully intended that states could set forth ‘any effluent limitations and other limitations. . .’ necessary to assure that the applicant ‘will comply with any applicable effluent limitations and other limitations’ under various provisions of the Act ‘and any other appropriate requirement of State law set forth in such certification.’ My quotes are directly from Section 401(d) of the Clean Water Act.

“According to the Supreme Court in PUD v. Washington Department of Ecology (1994), this means that the law, as Congress wrote it, allows states to include ‘additional conditions and limitations on the activity as a whole once the threshold condition, the existence of a discharge, is satisfied.’ In layman’s terms, this means that the states are granted broad authority to condition certifications consistent with federal and state requirements as necessary to meet water quality standards.  So, to be clear, replacing the word ‘activity’ with the word ‘discharge,’ as this bill proposes, would undo Congress’ original intent, and would severely clip our states’ wings in their efforts to make our waters clean, safe, fishable and swimmable.

“The bill would also require that states either grant or deny requests for certification within one year ‘after receipt of such request.’  It is unclear what ‘receipt’ means, but in any event, given the complexity of some projects, the incomplete nature of many requests, and the inevitable back-and-forth required for agencies to fully understand the scope, implications, and options for mitigating impacts, this is a wholly unrealistic limitation on the states’ abilities to make responsible decisions.  A possible result is a vast increase in litigation over poor certification decisions or simply denial based on a state’s reasonable determination that it does not have a sufficient basis upon which to certify or deny.

“Similarly, restricting the time period for a state to request additional information to 90 days—while obviously a good intention to keep the process moving efficiently—also ignores the reality of complex and otherwise difficult cases.  All we need to do to confirm this point is talk to our states.

“There is much more about this bill that would serve oil and gas, coal, hydropower and other industries well.  But doing so at the expense of states’ abilities to protect themselves is a truly bad idea. We find it so very easy to suggest that states know best how to manage the resources in their states—whether it’s public lands or the critters that live there.  Why is it, then, appropriate and acceptable for us to basically say to states in this context, ‘You really don’t know best.  We do.  And this is what you’re going to do.’

“I’ll finish by going back to the story I told at the beginning of this statement, and ask the Committee to join me in thinking about this scenario. What if my State of Delaware had no voice and no capacity to choose a thriving coastal environment and the fishing and tourism economy it supports over the presence of a major coal terminal on the shores of the Delaware Bay?  Is it right to tell my state’s regulators and citizens it doesn’t matter what you think, here’s your terminal? 

“No, it is not.  And we should not move legislation that would make it so.

“Thank you, Mr. Chairman.”