U.S. Senators Press EPA’s Wheeler To Reform Clean Water Act Permitting As States Stymie Energy Projects

Six U.S. Senators this week charged Environmental Protection Agency Administrator Andrew Wheeler to quickly reform implementation guidance of Section 401 of the Clean Water Act, a process they say “certain states have abused” in their efforts to block energy projects in coastal areas.

Led by U.S. Sen. John Barrasso (R-Wyo.), chairman of the Senate Committee on Environment and Public Works, the October 21^st letter to Wheeler outlined the committee members’ intention to have the agency continue its work to prevent the use of outdated and “inaccurate guidance” that states have used to bring large energy export projects to a grinding halt, threatening American jobs and the stability of the global energy economy.

“We are writing to express our strong support for EPA’s commitment to improve implementation of Section 401 of the Clean Water Act,” the senators wrote. That includes “new clarifying guidance or regulations” and President Trump’s April 2019 Executive Order.

Sens. Shelley Moore Capito (R-W. Va.), Michael Enzi (R-Wyo.), James Inhofe (R-Okla.), Kevin Cramer (R-N.D.), and Steve Daines (R-Mont.) joined Barrasso. All represent land-locked but energy-rich states whose natural gas and goal resources, among others, have been unable to get to markets domestically and abroad, thanks to neighboring and coastal states on both coasts who’ve denied permitting using Section 401 language.

“Section 401 of the Clean Water Act must be implemented as Congress intended—a careful scalpel to protect water quality, not a bludgeon for select states to kill critically important projects,” they wrote.

“Modernization of the Clean Water Act Section 401 water quality certification process remains a top priority for us. The regulations that you propose to revise are forty-eight years old,” the letter continued.

The legislators pointed to what they called the “weaponization” of Section 401 by coastal states to oppose development of energy production, like the Jordan Cove liquefied natural gas export station, using the section to “block large energy projects from moving forward,” including the exportation of American-produced coal and LNG.

Barrasso cited a letter sent by seven state Attorneys General, including Montana and Texas, to Wheeler earlier this year, that charged the attempts to halt or otherwise impede the progress of the projects as “the actions of individual state actors” that “are disruptions to interstate commerce and negate the intent of providing the consistent and reliable permitting process envisioned by the Clean Water Act.”

Denial of approval in several states, particularly New York and Washington, has driven up prices to the consumers, led to the refusal to link new customers to utility services, and halted the creation of thousands of direct and indirect jobs, as well as the substantial incomes those workers stand to receive should the projects move forward, according to the letter. One project, the Constitution Pipeline in New York, has already received Federal Energy Regulatory Commission approval.

“[A] safe, modern, and affordable solution, the Constitution Pipeline, was delayed from being built after already receiving [FERC] approval. This permit denial is still delaying about 2,400 direct and indirect jobs from the pipeline construction generating $130 million in labor income and economic activity for the region. The decision continues to cost local governments approximately $13 million in annual property tax revenue,” testified Brent Booker, Secretary-Treasurer of North America’s Building Trades Unions, in an August 2018 hearing before Barrasso’s committee.

On the West Coast, the Millenium Bulk Terminals coal export terminal was denied certification by the state of Washington, leading to the loss of export ability for Crow Nation-mined coal. “[O]ur ability to get our coal to fast-growing Asian markets is being hindered by states on the West Coast who continue to refuse to grant needed approvals to build state of the art export facilities for political—not water quality—reasons,” the letter reads, quoting CJ Stewart, a Crow Tribal member and co-founder of the National Tribal Energy Association.

In July, Colorado officials remained “optimistic” that Jordan Cove LNG terminal would continue to move forward. “It’s extremely important for our economy and economic development,” Garfield County Commissioner Tom Jankovsky, told Western Wire.

Providing local energy exporters with stable and mature markets overseas would give areas like Northwest Colorado more economic certainty. That includes stabilizing incomes for local governments via property taxes from oil and gas development, which funds vital infrastructure expenditures on fire services, schools, hospitals, and parks and recreation.

Revising Section 401 to disallow its use as a tool to stymie American-led energy development would also help global energy markets. “This work is critical to America’s prosperity and to our standing as an energy leader in the world. Global energy usage is going to grow across all sectors—renewables, petroleum, natural gas, and coal—between now and 2050,” the senators wrote, citing Energy Information Administration numbers released last month.

Colorado officials agree.

“When we talk about geopolitical stabilization, the fact that Northwest Colorado could play a huge role in the geopolitical stabilization of our allies, the fact that we could play a role in helping to clean up our global environment by getting places like China from burning dirty fuels into the environment and instead switch over to clean natural gas, that’s a huge priority,” Mesa County Commissioner Rose Pugliese, who testified in front of FERC in June, told Western Wire earlier this year.