Lower Energy Costs Act

Floor Speech

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Mrs. NAPOLITANO. Mr. Chairman, I rise in strong opposition to H.R. 1, particularly division C, which was introduced in the House as H.R. 1152, and was marked up by the Committee on Transportation and Infrastructure with strong opposition from my Democratic colleagues. The polluters over the people act let polluters off the hook for harmful actions and damaging impacts to our rivers, lakes, and our streams that our local communities rely on for clean, safe drinking water.

Division C is an attack on section 401 of the Clean Water Act, which is a key mechanism for States and Tribes to evaluate projects that cross within their borders and have an impact on their waters and environment for decades.

Section 401 has been a successful example of cooperative federalism, while preserving State authority to manage their natural resources. Section 401 has been a well-supported, effective tool since the beginning of the Clean Water Act, but the Trump administration found a way to make it a scapegoat for the failure of senseless and harmfully polluting mega-projects.

The provisions in the polluters over people act will tie the hands of States and Tribes seeking to preserve stream flow for their water supplies, to prevent runoff and water pollution, and to minimize impacts to flood-preventing wetlands. It goes against the Clean Water Act's rights of States to prevent, reduce, and eliminate pollution.

First, in California, this bill would have huge impacts. For one, limiting analysis to only discharges would mean the State would be unable to consider the impact of the whole project, such as increasing impervious surfaces, or considering downstream effects. Our State is trying to preserve every drop of water we can get. Yet, this bill would stop my State from protecting its water supply from the adverse impacts of projects pursued by out-of-State interests.

Second, this bill places arbitrary, and likely impossible timelines on the States to act on permit requests. Despite how complicated or huge the project might be, this bill will severely limit the time allowed for a State to review its impact. My friends across the aisle may not realize this, but this bill may lead to greater numbers of project rejections as the State is pressured to respond without the time to fully analyze the project.

This bill is another attempt to gut--really gut--the Clean Water Act and allow pollution and industry to act without repercussion. We must defend human health, our economy, and the natural environment, and oppose the damaging bill that will harm local communities.

Mr. Chair, I include in the Record a letter from the State of California, State of Washington, and the State of New York in strong opposition to H.R. 1152, which is the bill that became division C, H.R. 1. February 28, 2023. Hon. Chairman Graves, Committee on Transportation & Infrastructure, Washington, DC.

Dear Chairman Graves: As the water quality certifying agencies for California, New York, and Washington, we write to underscore the importance of existing law in protecting state waters from water pollution associated with federally licensed projects. On February 24, 2023, Representatives Rouzer and Graves introduced H.R. 1152--Water Quality Certification and Energy Project Improvement Act of 2023, to amend section 401 of the Clean Water Act that would, among other things, revise section 401 to: (1) reduce the scope of states' and tribes' 401 water quality certification authority to apply only to the discharge to a water of the United States, rather than the whole of the activity; (2) narrow states' and tribes' section 401 water quality certification authority to exclude much of what is required to comply with water quality standards and implementation plans under section 303 of the Clean Water Act; (3) remove the states' and tribes' authority to ensure compliance with ``other appropriate requirement[s] of State law''; (4) replace references to an ``application'' for certification with a ``request'' for certification; and (5) impose a time requirement on states and tribes to identify information needed before taking an action on a certification request, (6) make other changes to the law that introduce substantial uncertainty about the scope of section 401 for project proponents and state and tribes. Each of these changes would undermine states' abilities to protect water quality within their states and erode five decades of successful, cooperative federalism. We ask that Congress preserve the existing state authority in the Clean Water Act to substantively review a project's effects on water quality before a federal permit or license is issued. Background

Under section 401 of the Clean Water Act, a federal agency may not issue a permit or license to conduct any activity that may result in any discharge into waters of the United States unless a section 401 water quality certification is issued, or certification is waived. The State Water Resources Control Board (``State Water Board'') and the nine California Regional Water Quality Control Boards (collectively, ``Water Boards''), [NY Signatory], [WA Signatory] are certifying agencies pursuant to section 401 of the Clean Water Act. In all three states, the most common federal licenses subject to section 401 are Clean Water Act section 404 dredge or fill permits issued by the U.S. Army Corps of Engineers and licenses for hydropower facilities issued by the Federal Energy Regulatory Commission.

During the five decades since Congress enacted section 401 in the Water Quality Improvement Act of 1970, state water quality agencies diligently processed thousands of section 401 requests each year with little controversy. The vast majority of section 401 certifications were issued promptly and most section 401 certifications were granted, with only a handful of denials issued each year. Beginning around 2016, prompted by a handful of high-profile section 401 denials, some project applicants and industry lobbyists began claiming that states were ``abusing'' their section 401 authority. Such claims of abuse are not, and never have been, true. In the handful of cases when project applicants have alleged improper certification decisions or delay by state agencies, they have been fully capable of protecting their rights under section 401 through the traditional framework of administrative and judicial review. Section 401 is a cornerstone of the cooperative federalism principles enshrined by the Clean Water Act

Cooperative federalism is a foundational component of the Clean Water Act. As set forth in Clean Water Act section 101 (b), ``[i]t is the policy of the Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution'' and ``to plan the development and use . . . of land and water resources.'' Section 510 further specifies that except as expressly provided, nothing in the Clean Water Act shall preclude or deny the right of any State to adopt or enforce any standard or limitation respecting discharges of pollutants or any requirement respecting control or abatement of pollution.

The section 401 certification program is an embodiment of these cooperative federalism principles. A state certification is the mechanism of ensuring that a federal license or permit is not used as an excuse to violate state or federal water quality standards. As currently written, the language in section 401 acknowledges that states are in the best position to understand their own laws and that additional conditions may be necessary to ensure compliance with state law and applicable Clean Water Act requirements. As the federal permitting or licensing agency is often not an agency primarily tasked with managing environmental issues, the federal agency may in fact be reliant on the certification authority's expertise regarding water quality. To prevent a section 401 certification from becoming a rubber stamp, any revision to the section 401 language must preserve an expansive view of the cooperative federalism principles originally envisioned by the Clean Water Act and repeatedly affirmed by the Supreme Court. PUD No. 1 of Jefferson Cnty. v. Washington Dep't of Ecology, 511 U.S. 700 (1994); S.D. Warren Co. v. Maine Bd. of Env't Prot., 547 U.S. 370 (2006). The Clean Water Act should continue to protect the whole range of water quality effects resulting from the proposed activity

We strongly support the existing statutory language, which gives states and tribes the authority to regulate the potentially water-polluting activity as a whole, rather than being limited to a strict interpretation of effects from only the discharge, because regulation of the activity as a whole protects waters from the widest range of impacts. States should be able to protect water quality regardless of whether the pollution or other water quality impacts would be specifically attributable to a discharge or from some other aspect of the activity being permitted. States should be able to use the certification process to address impacts to groundwater, impacts to isolated surface waters, or impacts from non-point sources, all of which are likely not directly attributable to the discharge to a water of the United States, because these are water quality impacts that would not occur without issuance of the federal permit or license.

The problems with limiting certifications to the discharge rather than the whole of the activity would be particularly impactful on the states' ability to protect water quality during the decades long term of Federal Energy Regulatory Commission (``FERC'') licenses in the hydropower licensing context. States and tribes must be able to fully address the water quality impacts of such activities as a whole during the 30- to 50-year term of the FERC license to reduce water quality impacts that, depending on the circumstances, may not be attributable to a point-source discharge, but result from the activity's construction, operations, and facilities. Common water quality impacts associated with hydropower activities include changes in turbidity, sediment, siltation, temperature, habitat loss, alterations to stream geomorphology, dissolved oxygen, algal productivity and algal-produced toxins, erosion, barriers to fish passage, alterations to stream geomorphology, and reductions in stream flow. Each of these impacts can have profound, generational impacts on the state's water resources.

To prevent or minimize these potential impacts, states have imposed, or considered the need for certification conditions to protect water quality on project activities that fall outside the typical understanding of point-source discharges, such as requirements for minimum instream flows and ramping rates; temperature management; aquatic invasive species management; plans for gravel replenishment, large woody material placement and other habitat measures; reservoir operation plans; erosion and sediment management plans; and monitoring and management of dissolved oxygen, mercury, pesticides, and other constituents of concerns. Previously issued certifications have typically included management, monitoring, and reporting measures to ensure compliance with water quality measures and to identify potential modifications if circumstances change. Revising the statutory language to contradict longstanding interpretations would introduce confusion and invite arguments about the nexus between the discharge and the impact, when a state or tribe's focus should more appropriately be on all water quality impacts resulting from the project. Introducing the concept of whether the activity will ``directly result'' in a discharge in subsection (a)(1) and (a)(4) would inject additional uncertainty and potentially further limit the certifying authority's ability to protect water quality.

Although the states would rely on their state authority to continue to preserve robust protection of water quality whenever possible, state authority would not be an available remedy where state law is preempted by federal law. Because the Federal Power Act preempts the field of hydropower regulation absent an express exception to preemption, and FERC project licenses are valid for a fixed period of up to 50 years, water quality certifications for FERC license applications provide the states with a singular opportunity to ensure compliance with the state's water quality standards and other requirements. If the states' ability to regulate FERC licensed projects to the same extent that it has been able to for decades is significantly weakened, other, non- FERC projects would be subject to more stringent requirements to compensate for the failure of FERC-licensed projects to contribute what would otherwise be their allocated responsibility. The Clean Water Act should continue to authorize certifications to implement water quality standards and implementation plans adopted or approved under section 303 of the Clean Water Act

Under section 401 of the Clean Water Act a water quality certification implements the applicable provisions of sections 301, 302, 303, 306 and 307 of the Clean Water Act and any other appropriate requirement of state law. The most important of the enumerated provisions of the Clean Water Act is section 303, which provides for water quality standards and implementation plans. Section 303 requires development and approval of water quality standards, which consist of designated uses, criteria, and anti-degradation policies; establishment of total maximum daily loads, which allocate responsibility for meeting standards that cannot be met solely through compliance with the technology-based requirements of the Clean Water Act; and implementation of a continuing planning process.

In 1994, the Supreme Court upheld state authority to set conditions of certification to protect uses designated as part of the water quality standards under section 303. PUD No. 1, 511 U.S. at 700. The Court rejected an argument that certification is limited to implementing the criteria component of those standards. Consistent with the Supreme Court's ruling, states have made effective use water quality certification authority to protect water quality needed for commercial, tribal, and recreational fisheries and other important uses of state waters.

The proposed revision to limit ``applicable provisions'' of section 303 to ``requirement of state law implementing water quality criteria under section 303 necessary to support the designated use or uses of the receiving navigable waters'' could strip the states' authority to use their certification authority to protect the uses of waters of the United States designated as part of water quality standards under section 303. By inexplicably omitting any reference to federal requirements that implement section 303, it would also create substantial uncertainty about states' and tribes' ability to enforce water quality criteria, total maximum daily loads, and antidegradation requirements adopted by U.S. EPA. Congress should not remove the states' authority to require compliance with state water quality requirements

We strongly oppose the bill's proposed revisions that would limit the certifying authority to ensuring compliance with only specific sections of the Clean Water Act by deleting the existing reference to ``any other appropriate requirement of State law'' set forth in section 401 subsection (d). Such a revision would disregard a state's right to impose more stringent water quality requirements and be contrary to the protective goals of the Clean Water Act. As is accounted for and endorsed by the Clean Water Act, many states have state-based programs and attendant requirements that arguably or explicitly expand beyond the state's Clean Water Act authorities. The Clean Water Act expressly contemplated a state's authority to establish and enforce more stringent state requirements beyond the Clean Water Act. For example, certifications may include monitoring and reporting requirements that arguably go beyond ensuring compliance with specific sections of the Clean Water Act, and instead help determine whether water quality is being degraded or to shape the development of future actions to protect water quality.

We urge Congress to refrain from making an unwarranted intrusion into a state's authority to impose stricter conditions to protect the quality of waters within its borders. Section 401 should preserve the certifying authority's ability to define the contents of a request for certification and create submission procedures

The bill proposes revising references to ``application'' to be ``request.'' Although the intention behind that revision is not clear, we support language that recognizes that the certifying authority may define the contents of a request for certification and create submission procedures. The state's ability to define what is required for a request for certification is significant because a receipt of such a request is the trigger for the beginning of the reasonable period of time for a certifying authority to act on the request. The bill proposes an addition requiring certifying authorities to ``publish requirements for certification,'' but it is not clear whether this language is an indirect reference to a certifying authority's ability to define required information for applications and submittal procedures. To the extent that ``requirements'' were intended to require the enactment of new state regulations, 30 days is insufficient time to comply with public notice and comment requirements for State Water Board adoption. Section 401 should not impose an arbitrary time limit on the certifying authority's ability to request information

The bill proposes revisions to subsection (a)(1) that specify that by 90 days after request for a certification, the certifying authority must inform the applicant if any additional information is necessary for the certification authority to take an action on the request. As explained above, to the extent that the language requires the certifying authority to identify what, if any, information is necessary to submit a complete application for water quality certification, many state laws, including California's, do this. But the revised language may be construed as preventing the states from requesting that the applicant clarify, amplify, correct, or supplement information required in the application, which is permissible under state law.

For these reasons, we write to ask that Congress preserve the existing state authority in Clean Water Act Section 401 to substantively review a project's effects on water quality before a federal permit or license is issued, and protect five decades of successful, cooperative federalism. Sincerely, Eileen Sobeck,

Executive Director, California State Water Resources Control Board. Basil Seggos,

Commissioner, New York State Department of Environmental Conservation. Laura Watson,

Director, Washington State Department of Ecology.

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Mrs. NAPOLITANO. 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.

Mr. Chair, I strongly oppose H.R. 1, the polluters over people act, and I urge my colleagues to do the same.

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