Washington, DC – Transportation and Infrastructure Committee leaders introduced a bipartisan bill to reverse the erosion of states’ authority and partnership with the federal government under the Clean Water Act. This well-established and effective partnership has come under increasing attack by the Obama Administration’s Environmental Protection Agency (EPA).
H.R. 2018, the “Clean Water Cooperative Federalism Act of 2011,” was introduced by Transportation and Infrastructure Committee Chairman John L. Mica (R-FL) and the Committee’s Ranking Member Nick Rahall (D-WV). Water Resources and Environment Subcommittee Chairman Bob Gibbs (R-OH) and U.S. Rep. Shelly Moore Capito (R-WV) were among the bill’s original cosponsors.
The bill amends the Clean Water Act (CWA) to restore the long-standing balance between federal and state partners in regulating the nation’s waters, and preserve the system of cooperative federalism established under the CWA in which the primary responsibilities for water pollution control are allocated to the states. The bill restricts EPA’s ability to second-guess or delay a state’s permitting and water quality certification decisions under the CWA once EPA has already approved a state’s program.
“Under the Obama Administration, EPA continues to strangle economic growth in this country with its overreaching and arbitrary regulatory regime,” Mica said. “This bill will help ensure a common sense regulatory regime that does not unnecessarily harm our nation’s farmers, miners and other businesses critical to our economy. We must restore and preserve the federal-state partnership that is the foundation of the Clean Water Act but which is being progressively undermined by EPA.”
“The long arm of the current EPA has reached into Appalachia and superimposed on our coal-producing States a water permitting regime that amounts to a confused hodgepodge of unwritten requirements and unexplainable goals,” said Rahall. “This legislation aims to instill greater certainty and fairness in the system. It intends to help prevent the EPA from steamrolling State permitting programs, ensuring that the States are truly partners with the Federal government in protecting water quality throughout the Nation.”
“As our U.S. economy struggles to get back on track, the EPA continues its assault on what could prove to be the most costly, burdensome, and expansive set of job-destroying regulations ever crafted,” Gibbs stated. “By preserving the state’s role in this partnership, we can begin to reign in EPA’s runaway regulations to save countless jobs and protect our economy from the tens of billions of dollars their backdoor energy policies would cost.”
“Intentionally delaying the permit approval process has led to a slow-bleed of jobs throughout Appalachia,” said Capito. “Our miners should be able to conduct their day-to-day business and make investments in the future without a veil of uncertainty hovering over the industry. This bill reinforces the state’s role in the permit approval process and its original jurisdiction over land and water resources.”
Summary of the “Clean Water Cooperative Federalism Act of 2011”
State Water Quality Standards
H.R. 2018 provides common sense protections for states’ EPA-approved water quality standards and permitting authority under the CWA. Without these protections, state regulation, as approved by EPA, can still be usurped by the agency at every turn, creating a climate for regulatory uncertainty and endless delays.
• State Water Quality Standards: Restricts EPA’s ability to issue a revised or new water quality standard for a pollutant whenever a state has adopted – and EPA has already approved – a standard, unless the state concurs. In Florida, for example, EPA recently promulgated federal water quality standards over the state’s objections.
• State Section 401 Water Quality Certification: Prohibits EPA from superseding a water quality certification (that a discharge will comply with applicable water quality requirements) granted by a state under CWA section 401.
• Approval of State NPDES Permit Program Authority: Prohibits EPA from withdrawing approval of a state water quality permitting program under CWA section 402 (National Pollutant Discharge Elimination System, or NPDES), or from limiting federal financial assistance for the state program, on the basis that EPA disagrees with the state regarding a (i) water quality standard that a state has adopted and EPA has approved, or (ii) the implementation of any federal guidance that directs a re-interpretation of the state’s approved water quality standards.
• EPA Veto Authority over State NPDES Permitting Decisions: Prohibits EPA from objecting to a state’s issuance of an NPDES permit on the basis of (i) EPA’s differing interpretation of an approved state water quality standard, or (ii) the implementation of any federal guidance that directs a re-interpretation of the state’s approved water quality standards.
Permits for Dredged or Fill Material
H.R. 2018 places limits on EPA’s ability to veto dredge and fill permits issued by the Army Corps of Engineers and gives states more flexibility to administer these permitting programs.
• EPA Veto Authority over Corps Section 404 (Discharges of Dredged or Fill Material) Permitting Decisions: Restricts EPA’s ability to veto a Corps 404 permitting decision unless the state concurs with the veto. In an unprecedented action, EPA recently revoked a section 404 permit it had previously approved, even though the permittee had not violated any permit conditions.
• State Permit Program for the Discharge of Dredged or Fill Material: Allows a state to assume and administer only parts of the 404 permit program; under current law, states are required to assume the entire program or none of it.
Deadlines for Agency Comments
H.R. 2018 establishes reasonable time limits for agency comments and helps reduce pointless bureaucratic delays in the section 404 permitting process.
• Deadlines for Fish and Wildlife Service Comments on Proposed Section 404 Permits: The deadline for the Fish and Wildlife Service to submit comments to the Corps on a proposed section 404 permit is shortened from 90 days to 30 days (or 60 days if additional time is requested).
• Deadlines for Other Agency Comments on Proposed Section 404 Permits: Clarifies that the deadline for EPA and other agencies to submit comments to the Corps on a proposed section 404 permit is 30 days (or 60 days if additional time is requested) after the date of receipt of the application for the 404 permit.
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