By Amy Mall, Natural Resources Defense Council
Senator John Barrasso (R-WY) recently introduced legislation that would weaken the Clean Water Act, making it easier for polluting companies to build dirty oil and gas pipelines, massive dams, and other harmful projects that pose significant threats to rivers, wetlands, and other water bodies around the country. The bill has been co-sponsored by Senators Shelley Moore Capito of West Virginia, Senator Steve Daines of Montana, and Senator James Inhofe of Oklahoma, all Republicans.
Their target is Section 401 of the Clean Water Act. Under Section 401, states and tribes have the legal right to decide whether a project that is subject to a federal permit will meet state water quality standards and other environmental safeguards. In some cases, state laws prohibit actions that might be allowed under federal law, so this state and tribal role is essential. And states and tribes have unique knowledge of local conditions and stakeholders that may not be fully considered by federal agencies—a particularly acute problem under the Trump Administration.
If a project fails to demonstrate that it will meet appropriate requirements of state law, then states are empowered to deny approval (known as water quality “certification”), thereby stopping a project. They can also allow a project to proceed by granting certification with added conditions to ensure that the affected water bodies are protected.
Section 401 has worked well for decades and has helped protect streams, rivers, wetlands, lakes, springs, and other surface water bodies. States across the country review hundreds of certification requests every year. Some of the projects are massive, like dams and fracked gas pipelines, and require very detailed analysis of the potential impacts to nearby waterbodies.
Senator Barrasso is now trying to weaken Section 401 so that states and tribes only have 90 days after they receive an initial application for certification to request more information. This would limit the ability of states to obtain information they need in order to adequately assess a project’s impacts to waterways. In addition, the bill would eliminate the ability of states to impose important conditions that are necessary to protect fisheries, wetlands, recreation, and all the jobs and communities that depend on a healthy aquatic environment.
The only people who would benefit from this misguided amendment are those who have something to hide from state or tribal regulators and are eager to make money off of projects that threaten water bodies.
Section 401 is at times the only tool states or tribes have to stop or condition harmful projects when the federal government has otherwise given them the green light. And to do an adequate job, more than 90 days is needed to determine whether these projects will harm our waterways.
It’s clear that this is a political play and the ultimate goal is to weaken environmental protections. The senators pushing for this bill often argue *against* federal regulation and in favor of state rights when doing so would weaken environmental protections, yet now they argue for a bill to undermine state’s rights.
Bipartisan state and regional officials from across the country oppose this bill, including governors, state legislators, county executives, state wetland managers, clean water administrators, state and regional fish and wildlife agencies, and state attorneys general. These officials sent a letter to Congressional leaders stating that “Curtailing or reducing state authority or the vital role of states in maintaining water quality within their boundaries would inflict serious harm to the division of state and federal authorities established under the Constitution and recognized by Congress in the CWA.”
The Barrasso bill would undermine existing state and tribal authority to protect rivers, wetlands, drinking water sources, fisheries, and more. We call on Senators to reject this bill and to prioritize clean water over corporate profits.