The governors of Wyoming and Oklahoma voiced support for updating a provision in the Clean Water Act they say adds hurdles and allows unnecessary delays to energy infrastructure projects during a hearing in the Senate Committee on Environment and Public Works (EPW) today on Capitol Hill.

At issue is Section 401 of the Clean Water Act, which invites states to review projects to confirm that they meet state laws as well as federal requirements. Wyoming Gov. Mark Gordon (R) and Oklahoma Gov. J. Kevin Stitt (R) told the committee overreach under Section 401 impacts their states.

Committee Chairman Sen. John Barrasso (R-Wyo.) says states have abused this provision to block projects they oppose on grounds unrelated to clean water issues. Barrasso introduced a bill to limit the scope and time allotted for states’ review processes.

“A group of states are holding critical energy infrastructure projects hostage by abusing a provision in the Clean Water Act,” Barrasso said during his opening remarks. “Congress created Section 401 of the Clean Water Act to give states a seat at the table before federal permits are issued.  States deserve that seat at the table. The majority of state carry out this role in a responsible way. Recently, a select group of states have weaponized Section 401 to stop energy projects from moving forward.”

Both governors pointed to projects like pipelines and LNG terminals that have been blocked or delayed by other states to the detriment of their own economies.

“What happens is coastal states deny access to products that are either raised or produced in the center of the country is we lose our marketplace.  We lose interstate commerce, we lose our ability to be able to have a good economy,” said Gordon.

Wyoming has been directly impacted by the decision of Washington State to block permits for the Millennium Bulk Terminals which would export coal to foreign markets.  Gordon has argued that Washington has done so under auspices outside of clean water and is denying Wyoming access to these markets.

But Washington Senior Assistant Attorney General Laura Watson did not agree with Gordon’s characterization of her state’s decision and said that the motivation for changing Section 401 is based on the desire to push specific projects through.

“These extreme changes being proposed are both unfounded and unnecessary. They appear to be based on disagreement with a few state decisions, including Washington State’s denial of a Section 401 certification for a proposed coal export facility on the Columbia River.  That decision has been improperly cited as an abuse of authority,” Watson said.

Stitt spoke of the importance of the energy industry in his state and argued that promoting energy infrastructure development and protecting the environment don’t have to be mutually exclusive, touting strides Oklahoma has made in recent years.

“Since 2011, Oklahoma has reduced its emissions by nearly double the national average.  Sulfur dioxide is actually down by 56 percent, nitrogen oxide is down by 69 percent, carbon dioxide is down by 37 percent in Oklahoma. So we are definitely leading the way in our emission reductions,” Stitt said.

Stitt spoke of Oklahoma’s efficiency in reviewing permits and says he does not believe proposed changes to the Clean Water Act will negatively impact the autonomy of states.

“A clear scope and a reasonable timeline are not invasive to state’s rights.  The current proposed rule and the opportunity to strengthen it legislatively does nothing to prevent Oklahoma’s regulators from properly and scientifically considering whether a project negatively affects water quality in our state,” said Stitt.

Barrasso’s bill would complement actions taken by the White House and at the Environmental Protection Agency (EPA) on this issue.

In April, President Trump signed Executive Orders that aimed to streamline and speed up energy infrastructure permitting, reducing the role of states in that process.

This summer, EPA Administrator Andrew Wheeler announced a proposed regulation which would allow for his agency to issue permits over state objections and limit the ability of state regulators to consider issues other than those of water quality.