[House Report 118-10]
[From the U.S. Government Publishing Office]
118th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 118-10
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WATER QUALITY CERTIFICATION AND ENERGY PROJECT IMPROVEMENT ACT OF 2023
_______
March 17, 2023.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Graves of Missouri, from the Committee on Transportation and
Infrastructure, submitted the following
R E P O R T
together with
MINORITY AND ADDITIONAL VIEWS
[To accompany H.R. 1152]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 1152) to amend the Federal Water
Pollution Control Act to make changes with respect to water
quality certification, and for other purposes, having
considered the same, reports favorably thereon without
amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose of Legislation........................................... 2
Background and Need for Legislation.............................. 2
Hearings......................................................... 4
Legislative History and Consideration............................ 4
Committee Votes.................................................. 5
Committee Oversight Findings and Recommendations................. 7
New Budget Authority and Tax Expenditures........................ 7
Congressional Budget Office Cost Estimate........................ 7
Performance Goals and Objectives................................. 8
Duplication of Federal Programs.................................. 8
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff
Benefits....................................................... 8
Federal Mandates Statement....................................... 8
Preemption Clarification......................................... 8
Advisory Committee Statement..................................... 8
Applicability to Legislative Branch.............................. 8
Section-by-Section Analysis of the Legislation................... 9
Changes in Existing Law Made by the Bill, as Reported............ 9
Minority Views................................................... 10
Additional Views................................................. 13
PURPOSE OF LEGISLATION
The purpose of H.R. 1152, the ``Water Quality Certification
and Energy Project Improvement Act'', is to promote the
development of the Nation's infrastructure by streamlining the
permitting process under Section 401 of the Clean Water Act
(CWA) and clarifying Section 401's focus on CWA water quality.
BACKGROUND AND NEED FOR LEGISLATION
Section 401 of the CWA requires applicants seeking a
Federal permit or license for an activity that may result in
discharge into ``navigable waters'' to obtain a water quality
certification from the state or tribe with jurisdiction of the
area of possible discharge.\1\ The certification demonstrates
that any discharge will comply with enumerated water quality
standard provisions in the CWA and ``any other appropriate
requirement'' of state or Tribal laws.\2\ As such, Section 401
allows certifying authorities to grant, grant with conditions,
deny, or waive certification of proposed Federal licenses and
permits based on water quality standards.\3\
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\1\CWA, Pub. L. No. 92-500, Sec. 401, 86 Stat. 816.
\2\Id. Sec. Sec. 301-307.
\3\Id. Sec. 401; see also Laura Gatz & Kate R. Bowers, Cong. Rsch.
Serv., R46615, Clean Water Act Section 401: Overview and Recent
Developments (2022), available at https://crsreports.congress.gov/
product/pdf/R/R46615 [hereinafter CWA Section 401: Overview and Recent
Developments].
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Water quality certifications, as laid out in Section 401,
are necessary for ``any activity that (1) requires a federal
license or permit and (2) may result in a discharge into waters
of the United States,''\4\ including projects under the
Sections 402 and 404 of the CWA, the Rivers and Harbors Act, as
well as from the Federal Energy Regulatory Commission
(FERC).\5\ Section 402 governs projects falling under the
National Pollutant Discharge Elimination System (NPDES), and
Section 404 governs projects for release of dredged or fill
material.\6\ Common projects requiring Section 401 water
quality certifications include hydropower facilities, natural
gas pipelines and export terminals, water resources projects,
mining projects, and residential and commercial development.\7\
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\4\CWA Section 401: Overview and Recent Developments, supra note 3,
at 3.
\5\Id.
\6\CWA. Sec. Sec. 401-404.
\7\CWA Section 401: Overview and Recent Developments, supra note 3.
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In recent years, some stakeholders have become concerned
that states have been misusing Section 401 jurisdiction to
prevent certain important energy projects from obtaining
certification and halting their progress in construction.\8\
Despite Congressional intent and CWA language for Section 401
to focus on water quality standards, some states have denied
certification applications by citing non-water quality
standards, such as noise and greenhouse gas emissions,
particularly for pipelines and export terminals.\9\
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\8\See, e.g., Letter from Int'l Union of Operating Engineers to
Reps. David Rouzer & Garret Graves (Feb. 28, 2023) (on file with the
Comm.).
\9\Id.; see also CWA Section 401: Overview and Recent Developments,
supra note 3, at 12-14.
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For example, when the state of Washington denied
certification to a coal export terminal in 2017, it did not
cite water quality standards as a reason for denial, instead
claiming adverse impacts on air quality, vehicle
transportation, noise, community resources, rail
transportation, rail safety, vessel transportation, and
cultural and tribal resources.\10\
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\10\CWA Section 401: Overview and Recent Developments, supra note
3, at 6.
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While the CWA puts a one-year maximum on a state
certification decision, some stakeholders have noted the
potential for states to toll or otherwise administratively
extend this deadline.\11\ The statute initiates the one-year
timeline ``after receipt of such request,''\12\ which has led
to mixed interpretations. States assert that it is within their
authority to define the contents of a complete request for
certification, as well as to request clarifications,
corrections, or additional information from an applicant
necessary for comprehensive review of the project by the
State.\13\ However, these interpretations have led states to
act beyond the one-year time limit, causing project
certification applications to drag on beyond the timeframe laid
out in the CWA.\14\ One stakeholder described a case in New
York where the state ``repeatedly moved the goalposts on what
it would deem satisfactory''\15\ on a project application which
had a de facto effect of extending the review timeline beyond
one year.\16\ This example also demonstrates the need to ensure
states have clear and transparent standards for applicants.
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\11\Comment Letter from Marty Durbin, President, Global Energy
Institute, U.S. Chamber of Com., Ross Eisenberg, Vice President of
Energy and Res. Policy, National Ass'n of Mfrs., & Toby Mack, President
& CEO, Energy Equip. and Infrastructure All. to Andrew Wheeler,
Administrator, Environmental Protection Agency (Oct. 21, 2019),
available at https://downloads.regulations.gov/EPA-HQ-OW-2019-0405-
0878/attachment_1.pdf.
\12\CWA Sec. 401.
\13\See, e.g., Letter from States of Cal., N.Y., & Wash. to
Chairman Sam Graves (Feb. 28, 2023) (on file with the Comm.).
\14\See CWA Section 401: Overview and Recent Developments, supra
note 3 at 8-11.
\15\Letter from Competitive Enterprise Institute to Environmental
Protection Agency (Oct. 21, 2023), available at https://
downloads.regulations.gov/EPA-HQ-OW-2019-0405-0890/attachment_1.pdf.
\16\Id.
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In some cases, states are looking far afield from the
immediate effect of the project. For instance, in its denial of
certification to a pipeline project in 2019, the State of New
York stated ``. . . the Project would result in greenhouse gas
(``GHG'') emissions, which cause climate change and thus
indirectly impact water and coastal resources, including from
the construction and operation of the Project, and from
reasonably foreseeable upstream and downstream GHG
emissions.''\17\ In 2020, the State of New York submitted a
subsequent denial of certification for similar reasons.\18\
However, FERC's final environmental impact statement found that
any environmental impacts ``would be temporary and occur during
construction,''\19\ and that all ``Project effects would be
reduced to less-than-significant levels''\20\ under the
project's avoidance, minimization, and mitigation plan.\21\
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\17\See Notice of Denial of Water Quality Certification Letter from
Daniel Whitehead, Dir., Div. of Environmental Permits, N.Y. State Dep't
of Environmental Conservation, to Joseph Dean, Transcon. Gas Pipe Line
Co., LLC, (May 15, 2019), available at https://www.dec.ny.gov/docs/
administration_pdf/nodtgp.pdf.
\18\See CWA Section 401: Overview and Recent Developments, supra
note 3 (referencing Notice of Denial of Water Quality Certification
Letter from Daniel Whitehead, Div. of Environmental Permits, N.Y. State
Dep't of Environmental Conservation to Joseph Dean, Transcon. Gas
Pipeline Co., LLC (May 15, 2020), available at https://www.dec.ny.gov/
docs/permits_ej_
operations_pdf/nesewqcdenial05152020.pdf#page=3).
\19\FERC, Northeast Supply Enhancement Project: Final Environmental
Impact Statement (2019), available at FERC, Northeast Supply
Enhancement Project: Final Environmental Impact Statement (2019),
available at https://www.ferc.gov/sites/default/files/2020-05/part-
1.pdf./2020-05/part-1.pdf.
\20\Id.
\21\Id.
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HEARINGS
For the purposes of rule XIII, clause 3(c)(6)(A) of the
118th Congress the following hearings were used to develop or
consider H.R. 1152:
On Wednesday, February 1, 2023, the Committee on
Transportation and Infrastructure held a hearing entitled ``The
State of Transportation Infrastructure and Supply Chain
Challenges.'' The hearing provided an opportunity for Members
of the Committee to discuss the current state of our Nation's
transportation infrastructure, the implementation of the
Infrastructure Investment and Jobs Act (IIJA, P.L. 117-58), and
receive updates on North American supply chain challenges.
Members received testimony from Mr. Chris Spear, President and
Chief Executive Officer at American Trucking Associations; Mr.
Ian Jefferies, President and Chief Executive Officer at the
Association of American Railroads (AAR); Mr. Jeff Firth,
President of Hamilton Construction on behalf of Associated
General Contractors of America (AGC); Mr. Roger Guenther,
Executive Director, Port Houston, and Mr. Greg Regan, President
of the Transportation Trades Department, AFL-CIO (TTD). The
witnesses testified about the need to address supply chain
issues, including varying permitting issues.
On February 8, 2023, the Subcommittee on Water Resources
and Environment held a hearing titled, ``Stakeholder
Perspectives on the Impacts of the Biden Administration's
Waters of the United States (WOTUS) Rule.'' At the hearing
Members received testimony from Mr. Garrett Hawkins, President,
Missouri Farm Bureau, Ms. Alicia Huey, Chairman, National
Association of Home Builders, Mr. Mark Williams, Environmental
Manager, Luck Companies, on behalf of National Stone, Sand &
Gravel Association, Ms. Susan Parker Bodine, Partner, Earth &
Water Law LLC, and Mr. Dave Owen, Professor of Law and Faculty
Director of Scholarly Publications, UC College of the Law, San
Francisco. This hearing examined the rule from the EPA and
Corps redefining the term ``waters of the United States,''
under the CWA, and the regulatory impact of the rule on
interested stakeholders. During this hearing, witnesses also
broadly discussed the need for permitting and regulatory reform
under the CWA.
LEGISLATIVE HISTORY AND CONSIDERATION
H.R. 1152, the ``Water Quality Certification and Energy
Project Improvement Act,'' was introduced in the United States
House of Representatives on February 24, 2023, by Mr. Rouzer of
North Carolina and Mr. Graves of Louisiana and referred to the
Committee on Transportation and Infrastructure. Within the
Committee on Transportation and Infrastructure, H.R. 1152 was
referred to the Subcommittee on Water Resources and
Environment. The Subcommittee on Water Resources and
Environment was discharged from further consideration of H.R.
1152 on February 28, 2023.
The Committee considered H.R. 1152 on February 28, 2023,
and ordered the measure to be reported to the House with a
favorable recommendation, without amendment, by voice vote.
The following amendments were offered:
An amendment to H.R. 1152 offered by Mr. Graves of
Louisiana (#1); was WITHDRAWN.
Add at the end the following: Sec. 3. Interim Process for
Expired Federal General Permits.
An amendment to H.R. 1152 offered by Mrs. Sykes (#2); was
NOT AGREED TO by a recorded vote of 26 yeas and 34 nays (Roll
Call Vote 002).
Page 2, strike lines 2 through 6. Beginning on page 4,
strike line 21 and all that follows through page 5, line 8, and
insert the following: (ii) in the second sentence, by striking
``applicable effluent limitations or other limitations or other
water quality requirements'' and inserting ``an applicable
provision of section 301, 302, 303, 306, or 307''; and
Beginning on page 5, strike line 23 and all that follows
through page 6, line 6, and insert the following: ``(e) For
purposes of this section, the applicable provisions of section
301, 302, 303, 306, and 307 are- ``(1) any effluent limitations
and other limitations, and monitoring requirements necessary to
assure that any applicant for a Federal License or permit will
comply with any applicable effluent limitations and other
limitations, under section 301 or 302, standard of performance
under section 306, or prohibition, effluent standard, or
pretreatment standard under section 307; and ``(2) any other
appropriate requirement of State law set forth in such
certification that the State determines necessary to support
water quality in the State or the designated use or uses of
navigable waters in the State.''
An amendment to H.R. 1152 offered by Mr. Stauber (#3); was
WITHDRAWN.
Page 3, after line 21, insert the following: (iii) in the
third sentence, by inserting before the period ``within a
timeframe agreed upon between such State and the applicant''.
An amendment to H.R. 1152, offered by Mr. Stauber (#4); was
WITHDRAWN.
At the end of the bill, add the following: Sec. __. Veto
Authority Update. Section 404 (c) of the Clean Water Act (33
U.S.C. 1344 (c)) is amended in the second sentence by striking
``Secretary.'' And inserting ``Secretary, Secretary of Defense,
Secretary of Commerce, and Secretary of the Interior to
determine whether there are any materials on the Critical
Minerals list, materials needed for grid security, or materials
needed for national defense.''
An amendment to H.R. 1152, offered by Mr. Huffman, (#5);
was NOT AGREED TO by a recorded vote of 26 yeas and 34 nays
(Roll Call Vote 003).
Add at the end the following: Sec. 3. No Effect on Tribal
Rights. Nothing in this Act, or the amendments made by this
Act, shall be construed to affect any Tribal rights or
authorities under the Federal Water Pollution Control Act,
including any review by a Tribal Government of a discharge or
activity under a Federal permit in order to protect treaty
rights, including water rights, fishing rights, and cultural
resources.
COMMITTEE VOTES
Clause 3(b) of rule XIII of the Rules of the House of
Representatives requires each committee report to include the
total number of votes cast for and against on each record vote
on a motion to report and on any amendment offered to the
measure or matter, and the names of those members voting for
and against.
Committee on Transportation and Infrastructure Roll Call Vote No. 002
On: Agreeing to amendment #2 offered by Mrs. Sykes.
Not Agreed to: 26 yeas and 34 nays.
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Member Vote Member Vote
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Mr. Graves of MO................................ Nay Mr. Larsen of WA.................. Yea
Mr. Crawford.................................... Nay Ms. Norton........................ Yea
Mr. Webster of FL............................... Nay Mrs. Napolitano................... Yea
Mr. Massie...................................... Nay Mr. Cohen......................... Yea
Mr. Perry....................................... Nay Mr. Garamendi..................... Yea
Mr. Babin....................................... Nay Mr. Johnson of GA................. Yea
Mr. Graves of LA................................ Nay Mr. Carson........................ Yea
Mr. Rouzer...................................... Nay Ms. Titus......................... Yea
Mr. Bost........................................ Nay Mr. Huffman....................... Yea
Mr. LaMalfa..................................... Nay Ms. Brownley...................... Yea
Mr. Westerman................................... Nay Ms. Wilson of FL.................. ............
Mr. Mast........................................ ............ Mr. Payne......................... Yea
Mrs. Gonzalez-Colon............................. Nay Mr. DeSaulnier.................... Yea
Mr. Stauber..................................... Nay Mr. Carbajal...................... Yea
Mr. Burchett.................................... Nay Mr. Stanton....................... Yea
Mr. Johnson of SD............................... Nay Mr. Allred........................ Yea
Mr. Van Drew.................................... Nay Ms. Davids of KS.................. Yea
Mr. Nehls....................................... Nay Mr. Garcia of IL.................. ............
Mr. Gooden of TX................................ Nay Mr. Pappas........................ Yea
Mr. Mann........................................ Nay Mr. Moulton....................... ............
Mr. Owens....................................... Nay Mr. Auchincloss................... Yea
Mr. Yakym....................................... Nay Ms. Strickland.................... Yea
Mrs. Chavez-DeRemer............................. Nay Mr. Carter of LA.................. ............
Mr. Edwards..................................... Nay Mr. Ryan.......................... Yea
Mr. Kean of NJ.................................. Nay Mrs. Peltola...................... Yea
Mr. D'Esposito.................................. Nay Mr. Menendez...................... Yea
Mr. Burlison.................................... Nay Ms. Hoyle of OR................... Yea
Mr. James...................................... Nay Mrs. Sykes........................ Yea
Mr. Van Orden................................... Nay Ms. Scholten...................... Yea
Mr. Williams of NY.............................. Nay Mrs. Foushee...................... Yea
Mr. Molinaro.................................... Nay
Mr. Collins..................................... Nay
Mr. Ezell....................................... Nay
Mr. Duarte...................................... Nay
Mr. Bean of FL.................................. Nay
----------------------------------------------------------------------------------------------------------------
Committee on Transportation and Infrastructure Roll Call Vote No. 003
On: Agreeing to amendment #5 offered by Mr. Huffman.
Not Agreed to: 26 yeas and 34 nays.
----------------------------------------------------------------------------------------------------------------
Member Vote Member Vote
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Mr. Graves of MO................................ Nay Mr. Larsen of WA.................. Yea
Mr. Crawford.................................... Nay Ms. Norton........................ Yea
Mr. Webster of FL............................... Nay Mrs. Napolitano................... Yea
Mr. Massie...................................... Nay Mr. Cohen......................... Yea
Mr. Perry....................................... Nay Mr. Garamendi..................... Yea
Mr. Babin....................................... Nay Mr. Johnson of GA................. Yea
Mr. Graves of LA................................ ............ Mr. Carson........................ Yea
Mr. Rouzer...................................... Nay Ms. Titus......................... Yea
Mr. Bost........................................ Nay Mr. Huffman....................... Yea
Mr. LaMalfa..................................... Nay Ms. Brownley...................... Yea
Mr. Westerman................................... Nay Ms. Wilson of FL.................. ............
Mr. Mast........................................ Nay Mr. Payne......................... Yea
Mrs. Gonzalez-Colon............................. Nay Mr. DeSaulnier.................... Yea
Mr. Stauber..................................... Nay Mr. Carbajal...................... Yea
Mr. Burchett.................................... Nay Mr. Stanton....................... Yea
Mr. Johnson of SD............................... Nay Mr. Allred........................ Yea
Mr. Van Drew.................................... Nay Ms. Davids of KS.................. Yea
Mr. Nehls....................................... Nay Mr. Garcia of IL.................. ............
Mr. Gooden of TX................................ Nay Mr. Pappas........................ Yea
Mr. Mann........................................ Nay Mr. Moulton....................... ............
Mr. Owens....................................... Nay Mr. Auchincloss................... Yea
Mr. Yakym....................................... Nay Ms. Strickland.................... Yea
Mrs. Chavez-DeRemer............................. Nay Mr. Carter of LA.................. ............
Mr. Edwards..................................... Nay Mr. Ryan.......................... Yea
Mr. Kean of NJ.................................. Nay Mrs. Peltola...................... Yea
Mr. D'Esposito.................................. Nay Mr. Menendez...................... Yea
Mr. Burlison.................................... Nay Ms. Hoyle of OR................... Yea
Mr. James....................................... Nay Mrs. Sykes........................ Yea
Mr. Van Orden................................... Nay Ms. Scholten...................... Yea
Mr. Williams of NY.............................. Nay Mrs. Foushee...................... Yea
Mr. Molinaro.................................... Nay
Mr. Collins..................................... Nay
Mr. Ezell....................................... Nay
Mr. Duarte...................................... Nay
Mr. Bean of FL.................................. Nay
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COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
With respect to the requirements of clause 3(c)(1) of rule
XIII of the Rules of the House of Representatives, the
Committee's oversight findings and recommendations are
reflected in this report.
NEW BUDGET AUTHORITY AND TAX EXPENDITURES
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but has not received a cost estimate for this bill from the
Director of Congressional Budget Office. Further, the Committee
has requested but not received from the Director of the
Congressional Budget Office a statement as to whether this bill
contains any new budget authority, spending authority, credit
authority, or an increase or decrease in revenues or tax
expenditures. The Committee additionally requested and received
from the Congressional Budget Office a preliminary estimate of
the budgetary effects for this bill. The Congressional Budget
Office estimated on a preliminary basis that enactment of H.R.
1152 would not affect direct spending or revenues.
CONGRESSIONAL BUDGET OFFICE COST ESTIMATE
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives, a cost
estimate provided by the Congressional Budget Office pursuant
to section 402 of the Congressional Budget Act of 1974 was not
made available to the Committee in time for the filing of this
report. Pursuant to clause 3(d)(1) of House rule XIII, in the
absence of an estimate from the Director of the Congressional
Budget Office, the Committee adopts its own cost estimate based
on the preliminary findings of the Congressional Budget Office.
The Congressional Budget Office estimated on a preliminary
basis that enactment of H.R. 1152 would not affect direct
spending or revenues.
PERFORMANCE GOALS AND OBJECTIVES
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goal and objective of this legislation is to
provide promotion of the development of the Nation's
infrastructure by streamlining the permitting process under
Section 401 of the Clean Water Act (CWA) and clarifying Section
401's focus on CWA water quality.
DUPLICATION OF FEDERAL PROGRAMS
Pursuant to clause 3(c)(5) of rule XIII of the Rules of the
House of Representatives, the Committee finds that no provision
of H.R. 1152 establishes or reauthorizes a program of the
Federal government known to be duplicative of another Federal
program, a program that was included in any report from the
Government Accountability Office to Congress pursuant to
section 21 of Public Law 111-139, or a program related to a
program identified in the most recent Catalog of Federal
Domestic Assistance.
CONGRESSIONAL EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF
BENEFITS
In compliance with clause 9 of rule XXI of the Rules of the
House of Representatives, this bill, as reported, contains no
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule
XXI.
FEDERAL MANDATES STATEMENT
An estimate of Federal mandates prepared by the Director of
the Congressional Budget Office pursuant to section 423 of the
Unfunded Mandates Reform Act was not made available to the
Committee in time for the filing of this report. The Chairman
of the Committee shall cause such estimate to be printed in the
Congressional Record upon its receipt by the Committee.
PREEMPTION CLARIFICATION
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee finds that H.R. 1152 does not
preempt any state, local, or tribal law.
ADVISORY COMMITTEE STATEMENT
No advisory committees within the meaning of section 5(b)
of the Federal Advisory Committee Act were created by this
legislation.
APPLICABILITY TO LEGISLATIVE BRANCH
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Public Law
104-1).
SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION
Section 1. Short title
This section provides that this bill may be cited as the
``Water Quality Certification and Energy Project Improvement
Act of 2023''.
Section 2. Certification
This section clarifies that activities under review
pursuant to this section shall be limited to CWA-related water
quality standards and to the effects of specific discharges. It
also clarifies that state review requirements must be clear and
available to applicants and that within 90 days applicants must
be made aware of any additional information a state requires to
process its review of the permit.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
With respect to the requirement of clause 3(e) of rule XIII
of the Rules of the House of Representatives, changes in
existing law made by the bill, as reported, this section was
not made available to the Committee in time for the filing of
this report. The Chair of the Committee shall have this printed
upon its receipt by the Committee.
MINORITY VIEWS
We oppose H.R. 1152. This bill significantly curtails the
authority of states and Tribes to protect their water
resources. The changes in H.R. 1152 defy the overarching intent
of the Clean Water Act (CWA, or the Act) and gut the explicit
authority under section 401 of the Act for states and Tribal
governments to ensure that projects and activities carried out
within their jurisdictions are consistent with their water
quality standards and other relevant state and Tribal laws.
This partisan bill weakens CWA protections while allowing
special interests to override state and Tribal concerns over
potential development within their own borders.
The bill narrows section 401 authority, in place since the
enactment of the CWA, to the point of obsoletion.
First, it limits the scope of state and Tribal review to
only specific, direct discharges associated with the proposed
project or activity. Congress created section 401 to allow a
state or Tribe to consider the impact of an ``activity as a
whole'' on its waterbodies and associated water resources. By
limiting the review to direct discharges, a state or Tribe will
be barred from considering the water quality impacts of the
project or activity generally, such as discharges after
construction, discharges by entities other than the applicant,
or other impacts that result from the project or activity
changing the natural environment.
Additionally, the bill restricts the conditions a state or
Tribe may impose on a project or activity to only those
directly related to specified provisions within the Act related
to effluent limitations, water quality standards, treatment
standards, and toxic and pretreatment requirements. By
narrowing the conditions a state or Tribe may impose on the
project or activity, the bill repeals existing authority for
states and Tribes to consider the potential impacts of a
project or activity in the context of state pollution control
programs, fish recovery programs, temperature control
mechanisms, and minimum flow requirements.
Finally, H.R. 1152 imposes strict and nearly impossible
time limits to review applications for proposed projects or
activities, regardless of whether these applications are
complete or contain information sufficient for a thorough state
and Tribal review.
Proponents of this legislation point to these changes as a
way to curb state overreach and to accelerate permitting review
times. However, in a letter to the Committee dated February 28,
2023, the states of California, Washington, and New York
expressed serious concern with the changes proposed in this
legislation, stating that ``[revising] the statutory language
to contradict longstanding interpretations would induce
confusion and invite arguments about the nexus between the
discharge and the impact.''\22\ In addition, state
organizations, such as the Western States Water Council, have
expressed concern that placing arbitrary and strict limits on
section 401 application review times and processes will require
states ``to issue an increased number of denials, due to
inflexible deadlines that do not accommodate state public
engagement laws or allow sufficient time to gather adequate
information on project impacts.''\23\ In practice, enactment of
H.R. 1152 may increase project delays, as a state may be forced
to deny a certification for a project or activity rather than
grant it blindly and cede its authority over protecting its
water.
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\22\See Letter from the California State Water Resources Control
Board, the New York State Department of Environmental Conservation, and
the Washington State Department of Ecology to Chairman Sam Graves,
dated February 28, 2023, submitted to the record of the Full Committee
Markup of February 28, 2023.
\23\Resolution of the Western States Water Council in Support of
State CWA Section 401 Certification Authority, Position #471, September
16, 2021.
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Changing the timing and process for EPA review shifts
additional burden, but less control, to the states and Tribes.
Under the bill, responsibility for EPA notification shifts from
the applicant to a state or Tribe. The bill also requires
concurrent review by EPA and the state or Tribe, which removes
the ability of EPA to understand the local views on a project
(which is the purpose of section 401) before EPA conducts its
assessment.
During consideration of H.R. 1152, Committee Democrats
sought to lessen its negative impacts. For example,
Representative Emilia Sykes (OH-13) offered an amendment to
preserve existing authority to review and prevent potential
adverse consequences of projects or activities, including ``the
potential for a pipeline to leak dangerous chemicals into
groundwater; any toxic runoff from an approved factory; or
pollution in our waterways that results from a train
derailment.'' The devastating impacts of the Norfolk Southern
derailment in East Palestine, Ohio are a stark reminder of the
importance of section 401 reviews and why Congress should
retain authority for states to address the potential impacts of
projects and activities within their borders.
Similarly, Representative Jared Huffman (CA-02) offered an
amendment to maintain the current rights of Tribes under the
section 401 process and ensure that H.R. 1152 does not hinder
their sovereignty. This amendment sought to protect the current
authority of Tribes to be treated as separate and co-equal
entities in approving, denying, or conditioning projects or
activities that could impact jurisdictional waters.
Section 401 has been an effective tool for states--a
successful example of cooperative federalism at work and
partnership between states and the EPA. States across the
country process hundreds of CWA certifications annually, and
instances where they reject or place conditions on a permit are
limited. Yet, H.R. 1152 would significantly curtail state and
Tribal authority based on nebulous concern that a handful of
projects were denied state certification.
In our view, this legislation is unnecessary and
unwarranted.
Rick Larsen,
Ranking Member.
Grace F. Napolitano,
Ranking Member,
Subcommittee on Water
Resources and
Environment.
Eleanor Holmes Norton.
Steve Cohen.
Henry C. ``Hank'' Johnson, Jr.
Andre Carson.
Dina Titus.
Jared Huffman.
Julia Brownley.
Frederica S. Wilson.
Donald M. Payne, Jr.
Mark DeSaulnier.
Colin Z. Allred.
Jesus ``Chuy'' Garcia.
Seth Moulton.
Jake Auchincloss.
Marilyn Strickland.
Troy A. Carter.
Rob Menendez.
Val Hoyle.
Emilia Sykes.
Valerie P. Foushee.
ADDITIONAL VIEWS
I file these additional views because I strongly disagree
with the Majority's implication in this Committee report that
states and Tribes have misused their authority under section
401 of the Clean Water Act to deny the certification of
projects affecting state or Tribal waters solely for impacts
unrelated to water quality. There are multiple letters, witness
statements, and evidence to the contrary.
First, during the Committee markup of H.R. 1152, I included
in the record a letter from the Water Resources Control Board
of my state of California, who, along with the New York State
Department of Environmental Conservation and the Washington
State Department of Ecology, expressed opposition to H.R. 1152.
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.''
A copy of that letter is included with these views.
Second, the Majority continues to inaccurately imply that
states are wrongfully denying section 401 certifications solely
based on reasons outside of state water quality concerns.
For example, in the Committee report, the Majority
references the section 401 certification denial by the State of
Washington in 2017 of the Millennium Bulk Materials coal export
terminal. In this report, the Majority claims that the State of
Washington ``did not cite water quality standards as a reason
for denial.'' However, in 2019, the former-Director of the
Washington State Department of Ecology, Maia Bellon, testified
before the Subcommittee on Water Resources and Environment on
this issue, where she noted that:
For two years we have been falsely accused of
``abusing our 401 authority'' and denying the
[Millennium] project based on our so-called
philosophical opposition to coal. This is frankly
nonsense. The fact is that our decision was based on
the project's failure to meet water quality standards,
and its further failure to meet our state's
environmental standards. The project proponent failed
to provide any mitigation for the areas the project
would devastate, especially along the Columbia River.
The environmental analysis demonstrated that this
project would have destroyed 24 acres of wetlands and
26 acres of forested habitat, as well as dredged 41
acres of riverbed. It would have contaminated
stormwater from stockpiling 1.5 million tons of
material onsite near the river--picture, if you will,
an 85-foot-high pile of coal running the length of the
National Mall, from the steps of the Capitol to the
foot of the Lincoln Memorial.\24\
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\24\See https://democrats-transportation.house.gov/download/bellon-
testimony; see also, Section 401 Water Quality Certification Denial
(Order No. 15417) for Corps Public Notice No. 2010-1225 Millennium Bulk
Terminals-Longview, LLC Coal Export Terminal from Maia D. Bellon,
Director, State of Washington Department of Ecology to Millennium Bulk
Terminals-Longview, LLC, available at https://ecology.wa.gov/DOE/files/
83/8349469b-a94f-492b-acca-d8277e1ad237.pdf.
Similarly, the Majority's Committee report references the
denial by the State of New York of the Northeast Supply
Enhancement Project proposed by the Transcontinental Gas Pipe
Line Company (Transco) in 2019. Again, the Majority
inaccurately suggests that the State of New York based its
section 401 certification denial solely on the project's likely
increase of greenhouse gas emissions and associated impacts on
climate change. However, in the 2019 letter to the project
applicant, the State highlights that the ``Department does not
have reasonable assurances that construction and operation of
the [Northeast Supply Enhancement] Project would meet all
applicable water quality standards.''\25\ Specifically, the
State explains that:
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\25\See Notice of Denial of Water Quality Certification from Daniel
Whitehead, Director, Division of Environmental Permits, NY State Dep't
of Environmental Conservation, to Joseph Dean, Transcontinental Gas
Pipe Line Company, LLC, (May 15, 2019), available at https://
www.dec.ny.gov/docs/administration_pdf/nodtgp.pdf.
Most notably, according to Transco's own submissions
and as acknowledged by FERC, water quality standards
for both mercury and copper are projected to be
exceeded in certain areas in New York State waters. In
addition, at this time, due in part to the Department's
ongoing consideration of public comments received on
the WQC Application and of the Project's water quality
impacts, Transco and the Department have not finalized
appropriate requirements to mitigate for impacts to
water quality, shellfish beds, other benthic resources,
and other relevant environmental impacts.\26\
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\26\Id.
Similarly, in its 2020 denial of the same project, the
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State further notes that:
Transco has not demonstrated that construction and
operation of the Project would comply with applicable
water quality standards. Because the Department lacks
reasonable assurances that the Project would comply
with applicable water quality standards, particularly
without the use of a default 500-foot mixing zone for
mercury and copper, the Department hereby denies the
2019 WQC Application.\27\
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\27\See Notice of Denial of Water Quality Certification from Daniel
Whitehead, Director, Division of Environmental Permits, NY State Dep't
of Environmental Conservation, to Joseph Dean, Transcontinental Gas
Pipe Line Company, LLC, (May 15, 2020), available at https://
www.dec.ny.gov/docs/permits_ej_operations_pdf/
nesewqcdenial05152020.pdf.
I continue to oppose H.R. 1152, but believe it is also
important that the Committee report accurately and completely
reflect the evidence presented to the Committee members for
consideration.
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Grace F. Napolitano,
Ranking Democrat,
Subcommittee on Water
Resources and
Environment.
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