by Michael Bastasch
Republicans senators asked the Environmental Protection Agency (EPA) to review its implementation of a key provision of the Clean Water Act being used by states to block energy projects.
“We ask that you work with other federal agencies to determine whether new clarifying guidance or regulations are needed in light of recent abuses of the Section 401 process by certain states,” five GOP senators wrote.
“A select number of states have hijacked Section 401 to delay or block the development of natural gas pipelines and a coal export terminal,” Republicans wrote in a letter sent Thursday to EPA Administrator Andrew Wheeler.
“While the focus of these abuses today is fossil energy, the approach could be used to target any type of project that is disfavored politically,” lawmakers told Wheeler.
Lawmakers are concerned that Democratic-controlled states will continue to use Section 401 to block energy infrastructure projects instead of trying to protect water quality.
For example, Washington state and New York have been particularly zealous in their blocking of energy projects. Washington officials blocked the Millenium coal terminal, and New York regulators have blocked pipeline projects to bring natural gas to energy-starved New England. Environmentalists support states’ use of the CWA to choke the fossil fuel industry.
“There are simply too many unavoidable and negative environmental effects for the project to move forward,” Washington’s Department of Ecology Director Maia Bellon said last year when denying the coal terminal’s permit.
However, the effort to throttle the Millenium coal terminal sparked a fierce legal battle that’s drawn in six states, including Wyoming, which is represented by letter signatory Republican Sen. John Barrasso.
Barrasso was joined by other energy state lawmakers on the Committee on Environment and Public Works. Barrasso currently chairs the committee.
Washington’s battle against coal exports hurts communities in Wyoming, Montana and other western states that rely on overseas demand for energy. Lawmakers representing those states want the Trump administration to clamp down on this alleged abuse of permitting law.
“To our knowledge, the most recent EPA document regarding Section 401 is a 2010 interim ‘handbook’ issued by the prior administration,” Republicans wrote to Wheeler.
“EPA did not ask for public comment on the handbook, and it contains clear misstatements of law. For example, the handbook suggests that a state’s ‘reasonable period’ of time to act on a request for a water quality certification begins to run when an application is complete,” lawmakers wrote. “This is incorrect. That period begins to run when the state receives the application.”
“We also request that EPA – as the lead federal agency – work with other federal agencies to determine what government-wide direction is needed, including the need for new clarifying guidance or regulations,” Republicans wrote.
“The federal permits and licenses that trigger the water quality certification process are often issued by other federal agencies, including the Federal Energy Regulatory Commission and U.S. Army Corps of Engineers. EPA must ensure that these agencies have consistent, coordinated direction,” they wrote.
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