    [Senate Hearing 115-344]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 115-344
    .
    HEARING TO EXAMINE IMPLEMENTATION OF CLEAN WATER ACT SECTION 401 AND S.
         3303, THE WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF 2018

    =======================================================================

                                    HEARING

                                   before the

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                         ONE HUNDRED FIFTEENTH CONGRESS

                                 SECOND SESSION

                                   __________

                                AUGUST 16, 2018

                                   __________

      Printed for the use of the Committee on Environment and Public Works

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

            Available via the World Wide Web: http://www.govinfo.gov

                        U.S. GOVERNMENT PUBLISHING OFFICE

     31-623 PDF                 WASHINGTON : 2019

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                         ONE HUNDRED FIFTEENTH CONGRESS
                                 SECOND SESSION

                        JOHN BARRASSO, Wyoming, Chairman
    JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware,
    SHELLEY MOORE CAPITO, West Virginia      Ranking Member
    JOHN BOOZMAN, Arkansas               BENJAMIN L. CARDIN, Maryland
    ROGER WICKER, Mississippi            BERNARD SANDERS, Vermont
    DEB FISCHER, Nebraska                SHELDON WHITEHOUSE, Rhode Island
    JERRY MORAN, Kansas                  JEFF MERKLEY, Oregon
    MIKE ROUNDS, South Dakota            KIRSTEN GILLIBRAND, New York
    JONI ERNST, Iowa                     CORY A. BOOKER, New Jersey
    DAN SULLIVAN, Alaska                 EDWARD J. MARKEY, Massachusetts
    RICHARD SHELBY, Alabama              TAMMY DUCKWORTH, Illinois
                                         CHRIS VAN HOLLEN, Maryland

                  Richard M. Russell, Majority Staff Director
                  Mary Frances Repko, Minority Staff Director

                                C O N T E N T S

                                  ----------
                                                                       Page

                                AUGUST 16, 2018
                               OPENING STATEMENTS

    Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     1
    Gillibrand, Hon. John, U.S. Senator from the State of New York...     3
    Daines, Hon. Steve, U.S. Senator from the State of Delaware......    18

                                   WITNESSES

    CJ Stewart, Board Director, National Tribal Energy Association...    20
        Prepared statement...........................................    22
        Responses to additional questions from:
            Senator Carper...........................................    25
            Senator Merkley..........................................    28
    Brent Booker, Secretary-Treasurer, North America's Building
      Trades Unions..................................................    30
        Prepared statement...........................................    32
        Response to an additional question from Senator Carper.......    37
    Anthony Willardson, Executive Director, Western States Water
      Council........................................................    68
        Prepared statement...........................................    70
        Responses to additional questions from:
            Senator Carper...........................................    86
            Senator Markey...........................................    99
            Senator Merkley..........................................   102

                              ADDITIONAL MATERIAL

    Report; Environmental and Land Use Hearing Office, Order on
      Summary Judgment...............................................   377
    Letter; International Brotherhood of Electrical Workers..........   401
    Report; United States Court of Appeals for the Second Circuit,
      Petition for Review form the Federal Energy Regulatory
      Commission.....................................................   423
    Statement; Senator Daines: Dained Defends Montana's Right ot
      Export Coal to Asia............................................   521
    Statement; Western Water Council.................................
    Statement; Westerm Governors Association.........................   530
    Report: Hon. Robert J. Bryan, Opposition to the Millennium Bulk
      Terminal Port Facility.........................................   533
    Report; SEPA Greenhouse Gas Emissions Technical Report...........   579
    Letter; International Brotherhood of Electrical Workers..........   700
    Letter; New Jersey Conservation Foundation and The Watershed
      Institute......................................................   703
    Testimony; Western States Water Council..........................   709
    Article; the New Jersey Spotlight: Move in Congress to Weaken
      Clean Water Act Could Have Big Impact in New Jersey............   750
    Statement; Washington Building Trades: Resolution in Support of
      the Millennium Bulk Terminals Project..........................   752
    Letter; IPAA, Independent Petroleum Association of America.......   754

    HEARING TO EXAMINE IMPLEMENTATION OF CLEAN WATER ACT SECTION 401 AND S.
         3303, THE WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF 2018

                                  ----------

                           WEDNESDAY, AUGUST 16, 2018

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 10:03 a.m. in
    room 406, Dirksen Senate Building, Hon. John Barrasso (chairman
    of the committee) presiding.
        Present: Senators Barrasso, Capito, Boozman, Fischer,
    Rounds, Ernst, Cardin, Merkley, Gillibrand, Booker, Markey, and
    Van Hollen.

               OPENING STATEMENT OF HON. JOHN BARRASSO,
                 U.S SENATOR FROM THE STATE OF WYOMING

        Senator Barrasso. Good morning. I call this hearing to
    order.
        Today, the committee will hold a legislative hearing to
    examine S. 3303, the Water Quality Certification Improvement
    Act of 2018. This bill would improve implementation of Section
    401 of the Clean Water Act.
        Section 401 of the Clean Water Act empowers states with an
    important role in protecting water quality within their
    borders. Anyone applying for a Federal license or permit must
    ask the State to certify that resulting discharges into water
    will not degrade water quality. For decades, States have
    reviewed projects and issued water quality decisions.
        Generally, this process works well. States and Washington,
    DC. work together, with clear and defined roles, to solve
    problems at both the regional and the national level. The State
    makes sure discharges will not negatively affect water quality.
    The Federal Government then issues the permit or license with
    the State's blessing.
        This shared authority has been a good example of
    cooperative federalism. The vast majority of States have
    honored this shared responsibility. Recently, a few States have
    hijacked the water quality certification process in order to
    delay important projects.
        The State of Washington has abused their authority to block
    the export of coal mined in Wyoming, Utah, Colorado, and
    Montana. The State of Washington has refused to grant a water
    quality certification for the Millennium Bulk Terminal project.
    The project would enable the export of Western coal to markets
    in Asia.
        Japan, South Korea, and other countries want and need this
    American energy. By preventing this project from moving
    forward, Washington State has hurt the economy of the entire
    region and the Nation.
        The delay of the export terminal does not just affect the
    coal industry. The Millennium Bulk Terminal project creates
    jobs and directly benefits families in Wyoming, Washington, and
    other Western States. That is why local unions and Cowlitz
    County, the county where the terminal would be built, support
    the project.
        Washington State's refusal to issue the permit is not just
    bad for our economy; it is also bad for the environment.
    Wyoming produces the cleanest burning coal in the United States
    in a sustainable and safe manner.
        The Asian market will continue to use coal even if it
    cannot get American coal. By refusing to allow Wyoming to
    export its coal, the State of Washington is pushing these Asian
    markets to use coal from non-American sources, sources that are
    not as clean or safe.
        Washington State hired a consultant to evaluate greenhouse
    gas effects as part of its environmental review process. That
    consultant, hired by the State of Washington, concluded that
    mining and exporting American coal could reduce total global
    greenhouse gas emissions by displacing coal mined elsewhere.
        Washington State's actions infringe on interState and
    international commerce. That is why Wyoming, and other States,
    have joined together to take legal action against Washington
    State.
        The State of Washington's obstruction is about politics. It
    has nothing to do with clean water. The nine reasons that
    Washington used to deny certification had nothing to do with
    water quality. The State of Washington's own environmental
    impact study for the project found there would be no
    significant impacts to water quality.
        The State of New York has taken similar steps to block
    construction of natural gas pipelines. America is the world's
    No. 1 producer of natural gas. Pennsylvania has abundant
    supplies of this resource but New York is blocking gas pipeline
    projects which would supply States in New England.
        In January, power plants and utilities in New England had
    to take the dramatic and drastic step of importing liquefied
    natural gas from Russia to meet their energy demands. It makes
    no sense for America to import liquefied natural gas from our
    adversaries, Russia, when we have that resource right here at
    home.
        Using the Clean Water Act simply to delay important
    projects was clearly not what Congress had in mind when
    Congress passed the law. That is why I, along with Senators
    Capito, Inhofe, Daines, and Enzi, sponsored the Water Quality
    Certification Improvement Act of 2018.
        The bill amends Section 401 of the Clean Water Act to
    clarify the appropriate scope of review for a water quality
    certification. It clarifies that these reviews are limited to
    water quality impacts only. It would also put in place
    procedural guardrails and notice requirements to prevent future
    abuses.
        Under our legislation, States, when evaluating water
    quality, can only consider discharges from the federally
    permitted or licensed activity itself, not from other unrelated
    sources. No longer will a State be able to abuse this authority
    in order to stop a project from moving forward.
        This bill is commonsense legislation to clarify current
    law, ensure a more predictable permitting process, and to
    prevent costly delays. Our legislation defends interState
    commerce and returns the certification process to what it was
    originally designed for, to protect the quality of America's
    water.
        Before I introduce our witnesses for today, I would now
    like to turn to Senator Gillibrand for her remarks.

           OPENING STATEMENT OF HON. KIRSTEN E. GILLIBRAND,
                 U.S SENATOR FROM THE STATE OF NEW YORK

        Senator Gillibrand. Thank you, Mr. Chairman.
        I join you in welcoming our witnesses here today and our
    colleague, Steve Daines.
        When it comes to protecting the environment, we have a
    solemn responsibility to do everything we can to protect clean
    water. Unfortunately, the bill we are hearing testimony on
    today, the Water Quality Certification Improvement Act of 2018,
    would fundamentally alter the role States have in permitting
    projects that cross rivers, streams and wetlands.
        The bill substantially robs States of the rights they
    exercise under the Clean Water Act and abandons the cooperative
    federalism approach that has been a centerpiece of Federal
    environmental law.
        Do not just take my word for it. The Western Governors
    Association and nine other organizations representing State
    governments wrote a letter last week raising concerns with the
    legislative approach.
        They wrote ``We urge Congress to reject any legislative or
    administrative effort that would diminish, impair or
    subordinate States' ability to manage or protect water quality
    within their own boundaries.'' The bill we are discussing today
    would do just that.
        I ask unanimous consent to submit their letter for the
    record.
        Senator Barrasso. Without objection.
        [The referenced information follows:]

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        Senator Gillibrand. Thank you.
        I also ask to submit for the record a letter from the New
    York State Department of Environmental Conservation and the
    State Attorney General's Office. Those offices State that this
    bill would ``curtail and limit the authority of New York and
    other States to protect their own water quality resources and
    the health, safety and welfare of their residents.
        ``Put another way, the Improvement Act undermines the
    balanced cooperative federalism intended by Congress in the
    Clean Water Act.''
        I ask unanimous consent.
        Senator Barrasso. Without objection.
        [The referenced information follows:]

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        Senator Gillibrand. Thank you.
        InterState pipeline projects often traverse hundreds or
    even thousands of miles, cross hundreds more streams and impact
    wetlands in ways to have a cumulative impact on the ability of
    the State to meet its water quality standards.
        Some critics have pointed to a handful of high profile
    examples where States denied Section 401 certification for
    major interState projects. They argue that the States are
    abusing their role by issuing denials and therefore, the
    State's role should be restricted.
        Those assertions ignore the fact that New York State has
    denied Section 401 certification only in those instances where
    the project failed to demonstrate compliance with water quality
    standards or failed to provide sufficient information to
    demonstrate compliance.
        In 2017, New York State issued approximately 99.9 percent
    of all requested water quality certifications. Congress
    intended for States to have significant authority to protect
    their water quality under the Clean Water Act by setting
    standards more stringent than those set by the Federal
    Government. States have a responsibility to make sure those
    standards are enforced by setting conditions on federally
    permitted activities to protect State water quality.
        I am concerned that the changes to the Section 401
    certification process envisioned in the bill would create a
    situation where applicants are given Federal permits to violate
    State water quality standards. That should not happen.
        I am also concerned that this bill would set an arbitrary
    and unrealistic 90-day timeline for States to determine whether
    an application is complete. This is inconsistent with State and
    Federal practices and ignores the fact that these projects
    often change during the course of the review requiring new or
    different information.
        Additionally, the bill would prevent States from denying
    water quality certifications if an applicant fails to provide
    adequate information to the State. This is a heavy-handed
    approach designed to force States into approving potentially
    risky projects.
        It punishes States for making decisions that some of my
    colleagues do not like undermining the State's role in trying
    the Clean Water Act and repeatedly upheld by the courts. This
    is not cooperative federalism. We should be listening to our
    States and working with them not against them.
        Mr. Chairman, before I finish, I would like to ask
    unanimous consent to submit Ranking Member Carper's statement
    for the record.
        Senator Barrasso. Without objection.
        [The prepared statement of Senator Carper follows:]

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        Senator Gillibrand. I yield back.
        Thank you.
        Senator Barrasso. Thank you very much, Senator Gillibrand.
        Also along the same lines, Senator Inhofe is unable to be
    here today. I want to thank him for his support of S. 3303. I
    ask unanimous consent to enter his statement for today's
    hearing into the record.
        Without objection, it will be entered.
        [The prepared statement of Senator Inhofe follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Additionally, there was reference to the
    Western Governors Association and their comments. We did visit
    with Todd Parfitt who is the Director of the Wyoming Department
    of Environmental Quality regarding this piece of legislation.
    He said he ``recognizes the State's role in protecting water
    quality under the principles of cooperative federalism,'' which
    is what the Western Governors Association has said.
        He goes on to say ``This bill does not erode States'
    ability to protect water quality under Section 401.''
        With that, I would like to welcome my friend, Senator
    Daines, to the committee. Senator Daines, we are very grateful
    that you joined us. Thank you for your partnership in
    introducing the Water Quality Certification Improvement Act.
        We welcome you to discuss the bill and introduce Mr. CJ
    Stewart who hails from Montana.

                OPENING STATEMENT OF HON. STEVE DAINES,
                 U.S SENATOR FROM THE STATE OF MONTANA

        Senator Daines. Chairman Barrasso and Senator Gillibrand,
    thank you for inviting me here today to introduce a very
    special guest from Montana.
        CJ Stewart joins us today from the Crow Tribe in Montana.
    He is also Senator CJ Stewart. I knew CJ when he was a Senator
    who served 8 years as a Senator for the Crow Nation legislative
    branch.
        He is an active and strong voice in his community and
    currently leads the National Tribal Energy Association. Mr.
    Stewart brings a very unique voice from Indian Country to the
    table during these discussions.
        For perspective, on the Crow Reservation, the unemployment
    rate there is around 70 percent. When you engage with the
    people of the Crow Nation, they are pleading with us here in
    Washington to allow them to develop their natural resources and
    to provide opportunities and jobs for their people.
        These jobs related to coal are critical. The unemployment
    rate has gone up because they have lost some of these critical
    coal mining jobs.
        For those who are skeptics about what happens when we mine
    coal in Montana, I would invite you to come out sometime and
    see what reclamation looks like, how literally they restore the
    grounds with the original topography and grasslands. We are now
    seeing elk moving into these reclaimed areas, as well as mule
    deer, sage grouse and other native species.
        As a member of the Crow Tribe, Mr. Stewart has firsthand
    experience in how Section 401 of the Clean Water Act has been
    abused and has hurt our communities throughout Montana.
        Speaking of clean water, literally a week ago today at this
    very moment, I had a fly rod in my hand with my wife, Cindy,
    and our two dogs far in the Beartooth Absaroka wilderness of
    Montana. We hiked in about 12 miles.
        There was not a boot print or a trail where we were,
    fishing for Yellowstone Cutthroat Trout with a little elk hair
    cactus.
        I point that out because it is called the Baretooth
    Absaroka Wilderness. Absaroka is actually a word that ties back
    to the Crow Tribe. They are called the Apsaalooke people. We
    derive Absaroka from that. Today, if you look on a map, you
    will see the Baretooth Absaroka Wilderness. These were the
    original grounds of the Apsaalooke people.
        I discussed this with CJ earlier, this beautiful, pristine,
    clean water related to the Absaroka or the Absaalooke. They are
    called people of the large beak bird or the Crow Tribe, when
    you do a little translation. They know all about clean water,
    they cherish it.
        Mr. Stewart has firsthand experience of how Section 401 of
    the Clean Water Act has been abused and hurt communities. The
    Crow Tribe is home to and surrounded by large coal deposits and
    the community has fought hard to bring high-paying energy jobs
    to their members.
        This coal can be responsibly mined and can be responsibly
    exported to our Allies in the Asian Pacific. As the Chairman
    mentioned, Powder River Basin coal is Montana coal.
        By the way, Montana has more recoverable coal than any
    State in the United States. You do not think about Montana as
    being a coal State. For those who do not understand our State,
    we are No. 1 in coal reserves in the Nation.
        The reason our coal makes sense is because as we see what
    is going on in Asia, they are going to burn the coal but
    Montana coal, Wyoming coal, Powder River Basin coal is more
    environmentally sound and has a lower sulfur content. It is the
    right thing to do as relates to global stewardship of the
    environment versus Indonesian coal and Australian coal.
        Japan wants our coal. Montana and the Crow Tribe can
    produce that coal. Unfortunately, while we are blessed with
    mountains and prairies, Montana does not have a coastline. We,
    therefore, depend on other States to get our resources to
    market.
        That is why it is so important that we are having this
    hearing here today on legislation that Chairman Barrasso, other
    members of this committee, and I introduced. The Water Quality
    Certification Improvement Act simply clarifies that Section 401
    certification should be based on clean water standards.
        As part of the Clean Water Act, Section 401 should apply to
    clean water, not rail traffic or other unrelated issues, and,
    more importantly, should not be used for political reasons. I
    believe this is an important bill that will continue to give
    States a voice while also making sure certificates are based on
    the best available science.
        I look forward to hearing more from this committee and my
    friend and Montana Native. Let me say there are Montana natives
    and then there are Montana Natives. That is my friend, CJ
    Stewart.
        Again, thank you, Chairman Barrasso, for allowing me to be
    here today. Thank you for bringing Mr. Stewart to Washington,
    DC. to discuss the important impacts to our State and,
    importantly, our tribal communities.
        Senator Barrasso. Thank you, so much, Senator Daines. You
    are welcome to join us for as long as you are able. I know you
    have additional obligations on your schedule but we appreciate
    you being here with us today.
        I would now invite all of the witnesses to please join us
    at the witness table. First, we have Mr. CJ Stewart, Board
    Director of the National Tribal Energy Association. We also
    have Mr. Brent Booker, Secretary-Treasurer of the North
    America's Building Trades Unions and Mr. Anthony Willardson,
    Executive Director of the Western States Water Council.
        We want to welcome all the witnesses and remind you that
    your full written testimony will be made a part of the
    original, official hearing record today. We would ask that you
    please keep your statements to 5 minutes so that we have time
    for questions. We have quite a number of Senators here
    interested in hearing what you have to say and asking
    questions.
        I look forward to hearing your testimony beginning with Mr.
    Stewart. Mr. Stewart, please proceed.

    STATEMENT OF CJ STEWART, BOARD DIRECTOR, NATIONAL TRIBAL ENERGY
                              ASSOCIATION

        Mr. Stewart. Thank you, Chairman Barrasso, Ranking Member
    Carper, and members of the Environment and Public Works
    Committee.
        I appreciate the invitation and the opportunity to testify
    before this committee on examining implementation of Clean
    Water Act, Section 401 and your accompanying legislation.
        My name is CJ Stewart. I am a Crow Tribal member, a board
    member and co-founder of the National Tribal Energy
    Association, NTEA. NTEA advocates for both tribes and industry
    to promote healthy and sustainable energy economies on Native
    American lands.
        I am also currently in private practice as an energy
    consultant for Indian energy development and infrastructure. I
    previously served two terms as a Senator for the Crow
    legislative branch and as Chairman of the Crow Natural Resource
    & Infrastructure Development Committees from 2007 through 2015.
        In 2016, at the request of Chairman Darrin Old Coyote, 21st
    Chairman of the Crow Nation, I held the position of Crow Nation
    Energy Advisor and Legislative Liaison. During this time, I was
    also appointed as Vice Chairman of Congressman Ryan Zinke's
    Natural Resource Advisory Committee.
        Last, I worked for 10 years as a union coal miner hauling
    Crow coal and was the first Native American to be appointed to
    serve on the Montana Coal Board, where I was voted Vice
    Chairman.
        Tribal economies face many obstacles to success, and
    currently the economy of the Crow Tribe is facing a critical
    crisis. While we are blessed with untold mineral wealth in oil,
    coal, and gas on the Crow reservation, regulatory roadblocks
    and political crises force us to languish in poverty.
        The tribe currently has an unemployment rate of 70 percent
    or more and hopelessness is beginning to cast a shadow where
    there was once hope for a vibrant and prosperous future.
    Imagine having a trillion dollars in mineral wealth under your
    feet and yet your people are starving and destitute before you.
    It is a cruel nightmare that could be avoided if not for the
    Clean Water Act being weaponized against the Crow Tribal
    resource economy and the Crow people and culture.
        Clean Water Act Section 401 was intended to provide States
    with a way to apply clean water quality protections to
    federally permitted activities. However, certain States have
    misused the process to block Crow economic projects for
    political reasons that have nothing to do with water quality.
        These States have hijacked the 401 certification process
    and used it as a means to interfere with tribal and
    international trade policy in violation of the Commerce Clause
    of the U.S. Constitution, including and specifically the Indian
    Commerce Clause.
        The economic prosperity of tribal communities throughout
    the Country is dependent on the flow of goods to port
    facilities that is unencumbered by physical, commercial, or
    political roadblocks. Surely the founding fathers saw the
    necessity of the Indian Commerce Clause for tribal Nations
    against hostile and racist actors, be they private or public,
    who bore animosity against Native peoples.
        Importantly, these laws were put in place to protect
    sovereign tribal economic activity, but recent and ongoing
    activity on the part of certain coastal States severely
    infringes on the rights of States and tribes without direct
    access to export facilities to engage in interState commerce.
        The Crow Nation is deeply respectful of the need for States
    and tribes to be able to protect their own waters from projects
    that would degrade water quality and infringe upon water use.
    We are also needful of the same respect in terms of our
    commercial endeavors including our sovereign resource
    development and commercialization.
        Unlike these aforementioned hostile actors who are so
    detrimental to the quality of life for the Crow people, we seek
    no power over or ill will toward them. We instead seek a
    legislative remedy that maintains equal and fair application of
    the law.
        The Water Quality Certification Improvement Act of 2018 is
    such a legislative remedy and does not inhibit the ability of
    States and tribes to enforce their water quality laws. Rather,
    it provides necessary transparency and clarity to the 401
    process, while preserving the central role of tribes and States
    in protecting local waterways.
        The U.S. holds more of the world's coal reserves than any
    other Country, and the coal mined by the Crow Nation is
    preferred by high efficiency, low emission power plants that
    are in operation and being built around the world. However,
    even though our coal resources provide a critical component of
    U.S. export trade, our 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 Water Quality Certification Improvement Act of 2018
    ensures that water quality certifications focus on their
    intended environmental purpose, the protection of local water
    bodies potentially impacted by federally licensed activities.
    It will therefore protect the health of local communities while
    simultaneously promoting the ability of tribes and land-locked
    States to exercise their right to engage in interState commerce
    and grow the economy.
        [The prepared statement of Mr. Stewart follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Barrasso. Mr. Stewart, thanks so much for being
    with us today. Thank you very much for sharing your testimony.
    After we hear from Mr. Booker, we will come back with some
    additional questions.
        Next, Mr. Booker, thank you very much for being with us
    today. We appreciate that you are here to testify.

    STATEMENT OF BRENT BOOKER, SECRETARY-TREASURER, NORTH AMERICA'S
                         BUILDING TRADES UNIONS

        Mr. Booker. Thank you, Mr. Chairman, Senator Carper and
    Senator Merkley for your leadership and continued efforts to
    address permitting reform.
        As Secretary Treasurer of North America's Building Trades
    Unions, and on behalf of the three million skilled construction
    workers I represent, thank you for allowing me to share with
    you the impacts of project delays on the hard-working men and
    women who build and maintain America's energy, water, and
    transportation infrastructure.
        NABTU is dedicated to creating economic security and
    employment opportunities for North American construction
    workers by safeguarding wage and benefits standards, promoting
    responsible private capital investments, investing in renown
    apprenticeship and training, and creating pathways to the
    middle class for women, communities of color and military
    veterans in the construction industry.
        Because of these efforts, and others, collectively amongst
    all 14 NABTU affiliates, more than $1 billion dollars is spent
    annually on apprenticeship training at 1,600 domestic training
    centers. We now boast 135 apprenticeship programs to ready
    students for the academic and real-world challenges of being a
    union apprentice.
        North America's Building Trades Unions support responsible
    regulations that protect the environment, public health and
    worker safety. We believe they are critical to responsible
    infrastructure development that lasts for decades and allows
    for future generations to use these invaluable assets.
        What is concerning, however, is the tactic of project
    opponents using a constant stream of endless lawsuits to delay
    a project because they cannot defeat a project on the merits of
    the project itself. When projects are tied up or delayed
    because of court proceedings, not only are critical American
    infrastructure projects stalled, but also our members are not
    working, they are not putting food on the table, they are not
    providing for their families and they are not participating and
    contributing to the local economy.
        In the Northeast region, this is the reality. Union
    construction workers stand ready to build necessary pipeline
    infrastructure to deliver Marcellus Shale natural gas to
    utilities, industry, critical infrastructure like our schools
    and hospitals, and most importantly, to our consumers. The
    region's notoriously high energy prices have met a perfect
    storm in the form of inadequate natural gas infrastructure
    being coupled with the delay of the Constitution and Northern
    Access Pipeline projects.
        ISO New England recently highlighted that four gigawatts of
    natural gas-fired generation capacity, 24 percent of the
    region's gas-fired net winter capacity, was at risk of not
    being able to get fuel when needed. 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.
    Unfortunately, the Clean Water Act Section 401 permitting
    process has resulted in needless uncertainty. This can stymie
    approval for years, or worse, halt a half-completed
    construction project in its tracks.
        By some estimates, a 6-year delay in starting construction
    on public works, including the effects of unnecessary pollution
    and prolonged inefficiencies, costs the Nation over $3.7
    trillion. Let me be clear. When lawsuits aimed squarely at
    killing projects are brought forth for politically motivated
    reasons, it hinders our ability to create jobs and prepare the
    next generation of construction workers for tomorrow.
        These unnecessary delays thwart needed infrastructure
    progress, and impede NABTU members from working and earning a
    paycheck. We must have regulatory certainty and predictability.
        North America's Building Trades Unions strongly supported
    the FAST-41 reforms because they lead us toward a path of
    standardization and finality in the permitting process. We have
    supported the thoughtful steps taken to reform the system while
    maintaining the underlying regulations that protect the health
    and safety of our members on the jobsite and the environmental
    and human impacts of projects on communities across the
    Country.
        We will continue to be engaged with Congress and Federal
    agencies as sensible regulatory reforms are identified and
    implemented. Case in point, the reforms made by S. 3303
    requiring States to tell an applicant whether they have all the
    materials needed to process a certification is commonsense.
        The clarification that the scope of a Section 401 review is
    limited to only water quality impacts needs no explanation. We
    support reforms that reign in the legal challenges while
    thoughtfully protecting the environment, the public, and worker
    safety on the job.
        On behalf of NABTU, our affiliates, and our 3 million
    members, thank you for the opportunity to testify. I look
    forward to any questions you may have.
        [The prepared statement of Mr. Booker follows:]

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        Senator Barrasso. Thank you very much, Mr. Booker, as well
    as Mr. Stewart. We appreciate you being here. We will see if
    Mr. Willardson is able to arrive.
        If I could, I will start with some questions for Mr.
    Stewart. In your testimony, you talked about some of the real
    world impacts from not being able to use the tremendous natural
    resources that we have in America, specifically in Indian
    Country. The Seattle Times newspaper reported that the
    Millennium Bulk Terminal project would bring $680 million in
    investments to Cowlitz County alone, the Washington county
    where the terminal project would be located.
        What has the delay of this bulk terminal project done to
    the hardworking people in Indian Country and in States outside
    of Washington State such as your own?
        Mr. Stewart. First of all, Mr. Chairman, I appreciate the
    question.
        The delay of the permitting of the Millennium Bulk Terminal
    has cost loss of Federal, State and tribal mineral taxes,
    caused the loss of countless high-paying and highly skilled
    jobs which pay income and sales taxes in Montana, Wyoming,
    Colorado, Utah and other western States.
        It has caused the loss of new equipment services for the
    ongoing management and expansion of mines which in turn have
    caused more losses in taxes at all levels. It has had a direct
    impact on the Crow Nation which has lost the opportunity to
    mine, sell and tax millions of dollars of coal over the years
    which has negatively impacted tribal education, housing, health
    and other services, but more importantly, jobs. Mr. Chairman,
    it is jobs.
        Senator Barrasso. Thank you very much, Mr. Stewart.
        Mr. Booker, during the cold snap last winter when
    Massachusetts imported liquefied natural gas from Russia to
    meet its energy needs, Massachusetts took a dramatic step
    because like other New England States, it has insufficient
    pipeline capacity to import gas from nearby States like
    Pennsylvania or trying to move it there. They just do not have
    the pipeline capacity to do it.
        The Boston Globe wrote, ``The environmental toll this year
    was eye-popping. Greenhouse gas pollution exploded during this
    winter's cold snap, leaving generators to burn 2 million
    barrels of oil.'' Because they could not get natural gas
    through the pipeline, they went to oil.
        The lack of pipeline capacity is causing real harm to the
    environment as well as to energy security, as well as to the
    economy. Could you talk a bit about how Section 401 has delayed
    gas pipeline projects such as the Constitution Pipeline in New
    York from moving forward? Are you concerned about the negative
    environmental impacts?
        Mr. Booker. Yes, thank you for the question, Mr. Chairman.
        For us, what you just described is what we are trying to
    prevent, importing natural gas from Russia or from other places
    outside of this Country to keep our houses warm and keep our
    businesses open and running.
        When you have impacts and people using Section 401 not for
    what it is intended for, delaying these critical
    infrastructures and pipelines, the immediate impact, as Mr.
    Stewart mentioned, is the jobs and for me, the people I
    represent to go to work.
        The further consequence is the environmental impact of
    burning heating oil rather than burning clean, natural gas
    which is a domestic resource which we are burying the market
    not only in this Country but globally through LNG exports.
        By having these delays and not having the needed
    infrastructure we have or that we need in the Northeast, we are
    further damaging the environment while we are not creating jobs
    that are absolutely needed in the Northeast and all over the
    Country.
        Senator Barrasso. Mr. Stewart, when the State of Washington
    denied the water quality certification for the Millennium Bulk
    Project, it claimed there would be environmental harm, but the
    State of Washington's own consultant concluded there would be a
    net environmental benefit in terms of emissions.
        The consultant found that the mining and export of coal in
    America for use in Asia through the terminal would reduce
    greenhouse gas emissions globally over time. I would like to
    introduce a report into the record of today's hearing. It is a
    substantive report. Without objection, it will be submitted.
        [The referenced information follows:]

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        Senator Barrasso. Can you talk a bit about how the export
    of American energy can actually improve, not reduce,
    environmental protection?
        Mr. Stewart. In general, when you talk about how it will
    improve the economy, look at Native America. We are the most
    regulated ethnic body on the face of God's green earth. We live
    in our areas for all perpetuity and we are going to continue to
    live there. We are not going to allow pollution to be something
    that will ruin our land, water and air.
        When we are developing our resources, we make sure that our
    resources are developed in a responsible manner. I would rather
    have a better regulated product here in the United States than
    have to import unregulated product coming from someplace else.
        With all due respect, Mr. Chairman, when you are closing
    the door on our ability to send out our product, what doors are
    the NGO's and States leaving open?
        Senator Barrasso. Thank you, Mr. Stewart.
        I would like to welcome Mr. Anthony Willardson who has
    joined us. We are delighted to have you. He is Executive
    Director of the Western States Water Council. If it is
    appropriate, at this time, I would like to hear your testimony.

     STATEMENT OF ANTHONY WILLARDSON, EXECUTIVE DIRECTOR, WESTERN
                          STATES WATER COUNCIL

        Mr. Willardson. Thank you, Senator. I apologize for being
    tardy. I had a misunderstanding of the beginning of the
    hearing.
        We want to thank you, Mr. Chairman, Senator Carper and also
    the other members of the committee for this opportunity to
    testify on the importance of the Clean Water Act Section 401
    Certification Authority to the States.
        We also appreciate your leadership on issues of water and
    public works as well as balancing environmental and economic
    interests, as well as balancing two Federal policies and
    programs and the role of our States in our Federalist system.
        Federal agencies need to work together with the States. I
    would like to mention that we have a Western Federal Agencies
    Support Team with 12 agencies that work with the council on
    water policy issues. Our current, new Federal liaison will be
    John D'Antonio with the Army Corps of Engineers.
        I would also like to mention that Congress has, in the
    past, recognized and deferred to the primary authority of the
    States to allocate their water resources as well as to
    appropriate, develop, conserve and protect those resources,
    both surface and in-groundwater, as well as water quality
    instream flows and protect aquatic species.
        Section 8 of the Reclamation Act, Section 10 of the Federal
    Power Act, Section 101(g) and Section 101(b) as well as Section
    401 all speak to State authorities.
        The council supports the appropriate streamlining of
    permitting and processes, as well as the coordination of
    environmental and regulatory reviews to eliminate duplication
    where we can and reduce costs as well as reducing the cost of
    compliance, construction and ensure timely permitting
    processes.
        The West enjoys a diverse and abundant stock of natural,
    renewable and non-renewable energy resources but water is often
    scarce. The Council has specifically supported Federal
    legislative and administrative actions to authorize and
    implement reasonable hydropower projects. That is the area
    where we have the most experience with Section 401 consistent
    with State law and regulatory authorities.
        The Federal Power Act, Section 27, declares that ``Nothing
    herein contained shall be construed as affecting or intending
    to affect or in any way interfere with the laws of the
    respective States related to the control, appropriation, use or
    distribution of water.'' In California v. FERC, the State
    claimed authority to supplement minimum stream flows required
    by FERC. As I am sure you are aware, 49 States signed an amicus
    brief before the Supreme Court. We lost 9 to 0 in that case.
        It was only 5 years later that in a case in the State of
    Washington over 401 that the Supreme Court restored authority
    to the States to mandate minimum bypass flows. That has been
    particularly important to the States since then.
        At the time, the Supreme Court mentioned that Congress
    could change what they had done. We have supported legislation
    to assure that all applicants for hydropower licenses comply
    with States' substantive and procedural law, and that this was
    the original intent of Congress.
        As Congress again considered legislation, the Supreme Court
    made changes to the way Section 401 has been applied. Again, in
    2006, the Court recognized that 401 certification authority
    applied to more than just discharges under the Clean Water Act.
        As I am sure you know, Section 101(g) was sponsored by
    Senator Malcolm Wallop of Wyoming who was a champion of
    regulatory efficiency and State water rights. In 2004, the
    council conducted a survey looking at the processes our States
    use for issuing 401 certifications and what, if anything, may
    amount to delays. The consensus of those States was that
    certification alone is not an obstacle to timely Federal
    permitting and, in most cases the majority of requests were
    processed within 40 to 90 days.
        The delays were typically due to the submission of an
    incomplete application, not responding to the State's request
    for more information, incomplete study requirements or failing
    to comment on proposed project conditions. Substantive changes
    can happen.
        We appreciate the opportunity to be here to testify on this
    issue and look forward to working with you, Senator, as Chair,
    and other members of the committee. Improvements can be made.
    We are willing to work with you on that.
        I would suggest one first step is to consult with the
    States early and often. I think some of those entities have
    already expressed their opinion here as far as the Coalition of
    Western Governors, attorney generals, legislators and other
    State and wetland agencies.
        Thank you.
        [The prepared statement of Mr. Willardson follows:]

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        Senator Barrasso. Thank you very much, Mr. Willardson. We
    are grateful you had the opportunity to testify today. We
    appreciate your words.
        I have one question. Washington State cited reasons
    unrelated to water when it denied the water quality
    certification for the Millennium Bulk Terminal project. Do you
    agree Section 401 is about water quality, not about air
    emissions, noise or other non-water related impacts?
        Mr. Willardson. Section 401 is about water quality and not
    the other impacts. My understanding of that decision is that
    there were a number of other considerations included that came
    from the environmental impact statement.
        It was denied with prejudice given they thought the impacts
    on water quality were clear and could not be mitigated.
        Senator Barrasso. Thank you, Mr. Willardson.
        Senator Merkley.
        Senator Merkley. Thank you, Mr. Chairman. Thank you all for
    your testimony.
        On behalf of Ranking Member Carper, who is not here, I ask
    unanimous consent to submit letters and other materials for the
    record, including opposition letters from the following: the
    State of Maryland, Office of the Attorney General; the
    Environmental Council of the States; the Association of Clean
    Water Administrators; the Association of State Wetland
    Managers; a 139-member Coalition of Environmental River Keeper
    Groups; and the State of Washington Department of Ecology.
        Senator Barrasso. Without objection.
        [The referenced information follows:]

    [GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

        Senator Merkley. Thank you.
        Mr. Willardson, I understand that projects are often denied
    certification due to the lack of communication with key
    stakeholders. You mentioned incomplete applications being
    submitted or incomplete responses to requests for information.
    Were you using that as the primary reason there are delays in
    the process?
        Mr. Willardson. Only one of the reasons. From a State
    perspective, there are challenges related to staffing and
    staffing turnover. States have made adjustments. I know of at
    least one State that now assigns two people to work on any
    particular FERC licensing or relicensing given the length of
    time and the potential for turnover.
        Senator Merkley. At least a significant share? I thought
    perhaps from your testimony that the majority of the 401
    certification delays were the result of incomplete applications
    being submitted? Is that correct or incorrect?
        Mr. Willardson. That is correct. Where States have not been
    able to act in a timely manner, it is largely because the
    information has been received or not received.
        Senator Merkley. That is something that certainly can be
    addressed within the existing law?
        Mr. Willardson. Yes. I think another area of interest
    obviously is the definition of one certification is requested.
    In the past, States were disappointed that the Federal Energy
    Regulatory Commission, on a hydropower issue, unilaterally
    tolled the time for the State to act in over 200 projects.
        Since then, States have either denied up front a project
    that came in with an incomplete application as opposed to
    waiting until the end of the 1-year tolling period currently
    available under the law.
        Senator Merkley. To expedite the process. You mentioned
    hydropower and that is a big deal in my State. We have a lot of
    dams. We have dams coming out that no longer serve existing
    purposes; that enhance fish passage; dams going in or
    hydropower going in on existing dams; electric generation;
    fisheries; recreation, many things that affect the local
    economy that people care a great deal about.
        Are you aware of any hydropower projects in Oregon that
    have had significant problems with their 401 certifications?
        Mr. Willardson. I am not.
        Senator Merkley. The types of things that Oregon has
    addressed to complement the Federal regulation have been things
    like protections for wetlands, shoreline regulation, water
    temperature, acidity, turbidity, levels of instream flow which
    can be essential downstream both to temperature, fish passage
    and water being drawn for drinking water, sediment excavation
    deposit, bacteria levels, dissolved oxygen and dissolved
    nitrogen, algae growth, chemical and waste management, data
    collection, public reporting transparency which is very
    important to the stakeholders in our State so we really know
    what is going on, and instream water construction procedures
    that affect all of the above.
        Are those appropriate types of things for the public to be
    concerned about in terms of recreation activities, the health
    of the streams, fish passage and so forth?
        Mr. Willardson. Yes, there are many components related to
    water quality and protecting water quality more than just
    discharges under Section 402. Many of the States deal with
    those under not only the Federal law, but, as the law currently
    allows, under applicable State law. Oregon is one of the States
    that has its own Federal hydropower licensing process.
        Senator Merkley. When we talk about discharge, is it clear
    that, as rewritten, discharge would encompass the impact on
    discharge during the process of construction as well as upon
    completion of the project?
        Mr. Willardson. I think in addition to just discharge, it
    does take many forms, the alteration of the bed and banks
    obviously are included, but the bypass flows themselves. As I
    said, most of our experience has been with bypass flows and the
    Federal Energy Regulatory Commission.
        Maintaining those flows is important to water quality
    standards, total maximum daily loads and other components of
    the Act. Yes, there are many components.
        Senator Merkley. Many components that might not be directly
    covered by just the word ``discharge'' or at least there would
    be a huge amount of lawsuits and adjudication to try to
    determine what discharge and how broad that is?
        Mr. Willardson. It would not be covered, in my opinion, by
    discharge.
        Senator Merkley. Thank you.
        Senator Barrasso. Senator Capito.
        Senator Capito. Thank you, Mr. Chairman. I want to thank
    the Chairman for his willingness to work with me in developing
    this legislation.
        I thank the witnesses for being here today.
        Mr. Stewart, I come from West Virginia, a proud, coal-
    mining State. I want to thank you for your years of coal
    mining. I know it is a tough job. I appreciate you coming today
    to give us your perspective.
        I notice you are a member of the union, the MWA, I would
    suppose?
        Mr. Stewart. It was Local 400 in Montana.
        Senator Capito. They are good friends of mine.
        Mr. Stewart. IUOE.
        Senator Capito. Yes, thank you.
        I would like to talk a little bit about some of the
    testimony we have already had today. Mr. Booker, you mentioned
    more than once in your testimony the importance of certainty
    around the regulatory process.
        In West Virginia, this has been a challenge for us. We have
    three pipelines that have been permitted that are now on hold,
    not through the 401 process, but with FERC. You might have been
    following that.
        I am going to start with that question. What does that
    uncertainty do to your members and membership? It also has to
    have some sort of residual impact as to your apprenticeships
    and who wants to get into the business of building and
    constructing when you don't know if you are going to be coming
    or going with the uncertainty of permitting and the regulatory.
        Encompassing the 401 uncertainty, how are you seeing this
    play out in terms of these pipelines we are seeing put on hold
    right now?
        Mr. Booker. The simple answer is people are not going to
    work. They are not earning a paycheck, are not able to provide
    for their families, and not able to support the local economy
    and participate in the local economy.
        Specific to your question on training, we pride ourselves
    in our training. We invest a billion dollars a year in
    training. We have training centers in every State of this
    Country, multiples in every State of this Country.
        We also have apprenticeship readiness programs where we try
    to appeal to under-served communities, whether it is veterans
    through our Helmets to Hard Hats Programs, women, people of
    color, to bring them into the construction industry. It is not
    an easy career. You have the ebbs and flows.
        When you take away the predictability of the permitting
    process, it adds more unpredictability or more uncertainty to
    that. That means people are not going to work every day. Our
    training is based on working through the week, and taking
    classes at night as you graduate your levels of apprenticeship.
        If you are not working, you are not getting enough hours to
    graduate your apprenticeship, gain the skills you need to be a
    journeyman or whatever craft you come from. It has a
    devastating effect on the growth of the future work force for
    us and to be able to keep our training centers operating.
        Senator Capito. Absolutely.
        Mr. Stewart, I feel this daily living in a State like ours
    that has quite a bit of coal mining, we live there, we breathe
    the air, we drink the water, we fish, we recreate in our areas,
    as you mentioned in your testimony, where you live. In my view,
    if there are any people more environmentally sensitive to their
    area, it is the people who live there. Striking that balance
    between working, the economy and the environment where you
    live, breathe and raise your family and your children go to
    school, I think is difficult.
        If you could speak a little bit to the frustration, as you
    did in your opening statement, you feel that you cannot get out
    your message to say how impactful this is to you all and also,
    how deeply you feel about the environment you live in and are
    surrounded by.
        Mr. Stewart. I appreciate the question, Senator Capito.
        Coal mining is a brotherhood. It takes a special breed to
    be in the middle of the night sitting on a piece of equipment
    in the middle of nowhere on the mine site eating out of a box
    at lunchtime or in the middle of the day, when it is ice cold
    outside or else in burning heat.
        You are sitting there running a shift whether on a dozer,
    truck or a piece of equipment, a dragline, whatever the case,
    but you are alone. You have a lot to think about. I also ran
    the reclamation dozer so I do a lot of the reclamation.
        Senator Capito. Which is the environmental restoration of
    mining.
        Mr. Stewart. Doing the reclamation side of areas of the
    mine. Coming from my previous life as an equipment operator
    when I was first taken out there and asked to do an interview
    to apply for the position, I did not know where it started or
    where it ended. The reclamation was so great, it was beautiful.
        I say it is almost kind of like a zoo because you see the
    best looking out there, you see the best looking deer. I don't
    care what anybody says, there are deer right there on the rail
    spur eating the grass right next to the rail.
        I lived by the railroad tracks, maybe half a mile from the
    railroad next to I-90, for 44 years, all my life. It is a
    brotherhood. First and foremost, we help each other so we can
    come home safe so we are able to provide for our families and
    we take care of each other.
        Senator Capito. Thank you.
        Senator Barrasso. Thank you, Senator Capito.
        Senator Van Hollen.
        Senator Van Hollen. Thank you, Mr. Chairman.
        Welcome to all the witnesses.
        A few weeks ago we had a hearing on legislation dealing
    with the Endangered Species Act. That legislation proposed to
    give the States more authority on the grounds that the States
    were in a better position to understand some of the local
    concerns. Now we have a piece of legislation that wants to take
    away authority from States when it comes to making some of
    these decisions.
        There has been a lot of focus on the pipeline issue. Also,
    this legislation will have a negative impact in many other
    scenarios. For example, with respect to the Chesapeake Bay and
    protecting the waters that flow into the Chesapeake Bay, there
    is a dam on the Susquehanna River called the Conowingo Dam
    which is run by Exelon.
        As I read this legislation, it would prohibit the State of
    Maryland from doing something we have done for a very long time
    which is, as part of that permitting process for the dam under
    401 authority, required Exelon to provide, for example, fish
    passage because the dam interrupts fish migration up the river.
        That has never been an issue. However, this legislation
    would take away the authority of the State of Maryland or other
    States to make that a condition. I would like to have all of
    your views on this starting with Mr. Willardson.
        Mr. Willardson. I think it would definitely reduce the
    State's authority to require minimum bypass flows or require
    releases from the dam to protect downstream water quality as
    well as aquatic species.
        As far as the fish passage, that would be more related to
    the Interior and those authorities where they can mandate,
    under the Federal Power Act, fish passage facilities. It would
    definitely reduce State authorities.
        Senator Van Hollen. With respect to sediment flow, another
    issue is when you put up a dam; it can have an impact on
    sediment which obviously can have an effect on waters as they
    go into the Chesapeake Bay.
        Sometimes it captures and traps sediment, but when you have
    major storms, it has this overflow impact. As I read this, it
    would also take away the authority of a State to tie permitting
    for a dam project, for example, to the impact on sediment
    flows. Is that how you read it?
        Mr. Willardson. It obviously would limit it to discharges
    and however that might be defined in the future. There are many
    components besides discharges that impact water quality. We
    have been very strong proponents of the States' authority to
    regulate their water, both quantity and quality to meet their
    goals.
        Senator Van Hollen. To the other gentlemen, you focused
    your comments on pipelines and I understand that testimony. It
    is not your intention, is it, to deprive States of the
    authority to require, for example, fish passage mechanisms as
    part of permitting for hydroelectric projects like a dam, is
    it?
        Mr. Booker. No, that is correct. We support regulation but
    I think the current way the system has been, my testimony
    speaking specifically to the pipelines and Mr. Stewart's with
    the coal export, is that has been abused and misused to go
    beyond that which has caused these delays.
        Senator Van Hollen. We can have an argument on the merits
    of what both you gentlemen talked about, but my concern is, as
    I read it, Mr. Chairman, that this is much broader in scope and
    impact and would deprive States of tools they have been using
    for a very long time or may reasonably want to use when it
    comes to things like sediment flows and things like that around
    the Conowingo Dam.
        I look forward to continuing the conversation with all of
    you and the Chairman on that. Thank you.
        Senator Barrasso. Thank you very much, Senator Van Hollen.
        My view on this is that the permitting process now has been
    weaponized to pick winners and losers. The State of Washington
    is acting in this case like the Secretary of State, the
    Secretary of Commerce, and the U.S. Trade Rep in trying to
    decide single-handedly what our Country is permitted to export.
        As a result that there are six Attorney Generals from
    Wyoming, Kansas, Montana, Nebraska, South Dakota, Utah who are
    supporting the Millennium Bulk Project in litigation against
    the State of Washington. The State is preventing important
    interState commerce, violation of the Constitution.
        I ask unanimous consent to enter their brief into the
    record.
        [The referenced information follows:]

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        Senator Barrasso. Senator Fischer.
        Senator Fischer. Thank you, Mr. Chairman.
        Mr. Stewart, thank you for your testimony this morning. I
    appreciate you appearing before our committee and sharing your
    experience about the challenges facing our States and
    constituents as a result of that cumbersome red tape and the
    needless delays we see under Section 401 and that process. It
    is due to reasons unrelated to water quality concerns.
        Nebraska is the only triple land-locked State in the
    Nation. With an ag economy of $21.5 billion annually and a
    population of 1.9 million people, you can see how important it
    is for my State to export our high quality agriculture products
    around the globe.
        To do so, Nebraska producers depend on ports. We depend on
    those ports located along our Nation's coastlines. However,
    when States with antigrowth agendas can unilaterally determine
    what commodities get to be exported as the result of project
    delays that are unrelated to water quality issues that raises
    concerns. Today, it is coal. Tomorrow, it could be corn or soy
    beans.
        Mr. Stewart, what are the potential economic implications
    States, communities and families could face as a result of
    important export terminal project delays?
        Mr. Stewart. Thank you, Senator Fischer.
        First of all, when you bring it out like that, I thought he
    was going to give me a chance to answer him but I want to
    answer you as well.
        First of all, I would be very alarmed. I would be very
    alarmed that first of all, they are coming after coal. Yes,
    tomorrow, it might be fish. Tomorrow it might be a different
    kind of fish. Tomorrow it might be GMOs, or might be non-
    electric cars. Whatever may be the case, whatever is the flavor
    of the month, someone is going to try to go after that.
        When you talk about States' rights, I have no problem. I am
    not trying to interfere with States' rights. I am not trying to
    interfere with those areas, but you have to recognize that
    under States' rights, under the United States Constitution,
    there is something called the Indian Commerce Clause. There is
    something called equal trade, free trade, all these terms we
    freely throw around when it works to our benefit.
        Like the Chairman said, we cannot pick winners and losers.
    We should not pick winners and losers. We should allow people
    and groups to work with each other to try to establish this
    economy.
        In the U.S. Constitution and as a United States citizen,
    but first and foremost as a citizen of the Crow Nation, we have
    a phrase in the United States Constitution that says ``pursuit
    of happiness.'' In Indian Country, that is called self-
    determination. That is a Federal act.
        When we are being stymied or impeded, our ability to move
    our product through the ports or even to the domestic markets
    because as a Nation within a Nation, the Crow Nation has always
    been exporting. Now they are going to try to tell us we cannot
    send our product out of our Nation or cannot provide. I am
    going to bring it up again. If you are going to close the door,
    what doors are they leaving open?
        I am not trying to blame anyone, I am not trying to point
    fingers but this is America. As a first American, I would be
    very alarmed. Right now, we have 70 percent unemployment. Do
    they care? Yes, we care about endangered species but there are
    only 14,000 Crows left. I believe we are endangered as well.
        When you talk about 3 percent of the population in the
    United States and 60 percent of this Nation's good resources
    lie in Indian Country and only 88 percent of those resources
    have been tapped, only 12 percent of Native Americans has been
    able to tap their resources, there is something wrong with that
    picture. There are impediments in our way. There are 49 steps
    that stand in our way and four primary agencies. When we talk
    about coal, there is a fifth with OSM.
        When we talk about these impediments and the 49 steps that
    we, as Native Americans have to go through as first Americans,
    we should be the first ones out of the gate. We have the most
    resources but we are the last ones at the dinner table.
        With that much in resources we should be sitting at the
    table. We should have a place at the table. We should have our
    name at the table. We should not be giving the right to the
    States to break the law, to impede other nations from trying to
    feed their people. That is wrong. Not only is it breaking the
    law, but it is morally wrong. We need the ability to establish
    our jobs and have jobs, 70 percent.
        To the good Senator, I appreciate your question.
        Senator Fischer. Thank you for a very wonderful answer to
    why we must have free commerce in this Country. I think you
    expressed it beautifully.
        Thank you.
        Senator Barrasso. Thank you, Senator Fischer.
        Senator Ernst.
        Senator Ernst. Thank you, Mr. Chairman.
        Mr. Stewart, thank you for being here. I am going to echo
    the Senator from Nebraska's thoughts as well. The fact that you
    have 14,000 members of your Nation and are endangered as well
    is a very powerful statement. That is extremely powerful.
        So many of the questions I had have already been asked. I
    would like you to take this opportunity to visit with us a bit
    more. Understanding your presence here today really does
    suggest there are some important State and tribal interests
    being hurt when the Section 401 authority is abused. We
    appreciate you taking the time to join us today.
        In a broad statement, do you think other States and tribes,
    those without coastlines, have reason to be concerned about
    what is happening in your particular situation as well? Do you
    think other tribes or States have a reason to be concerned,
    witnessing what has happened with your Nation?
        Mr. Stewart. Yes. In fact, we have friends, brothers and
    sisters, friends and families from other tribes. If they are
    not watching this, they should be. In fact, I know the tribes
    that are watching these areas, for some reason the Crows always
    are at the forefront of a lot of these situations.
        That is because, as I stated, the U.S. Constitution says
    the ``pursuit of happiness.'' We are just trying to determine
    ourselves, trying to extract our resources. When you own 10
    percent of the Nation's coal reserves and 3 percent of the
    world's, only averaging 3 million tons of coal a year, roughly
    125 workers out of 14,000 Crows, that is pretty tough,
    especially when we are not trying to break the obligations of
    our treaties because we are getting nothing for free. We
    prepaid in the giving and ceding of our lands ahead of time
    with our treaties.
        When we have a general fund that is funded at 66 percent
    from our own resources, that our own people have mined and sent
    out to domestic markets, wanting to now send them out to export
    markets, talking with other countries, our allies, and wanting
    to expound on our opportunities in those areas and being told
    there is another step you are going to have to cross, another
    bridge you are going to have to cross, why is that?
        In Indian Country, when they tell us to abide by a
    regulation or policy, we have to. We do not have the ability or
    luxury to move the goalpost because, guess what, that is
    breaking the law. When you establish 401 as a platform for
    other reasons and political agendas, not realizing you are
    messing with people's lives, I have to say something.
        Senator Ernst. Yes, and I am glad you have.
        Mr. Stewart. I have come out of my own pocket to be here. I
    am sitting right here speaking from the heart.
        Senator Ernst. We are very glad for that.
        You have done a very good job explaining the difficulties
    your Nation is facing right now. If we were to be forward
    looking and if Section 401 had been approved and you were
    moving forward with exporting your coal and your resources not
    only to the domestic market but to foreign markets as well,
    could you describe what the situation would be like then for
    your Nation?
        Mr. Stewart. At the time when I was on the council, I
    participated in a decision where we reached out to Harvard for
    the Indian coal production tax credits but at that time.
    Harvard did the study we asked them to do and paid them to do.
    Right or wrong, we said, put together a study and let us look
    at the economic ripple that we provide for the region.
        We had that study done and looked at it. There were the
    direct benefits and indirect benefits and as it ripples
    throughout the region, at a good year, we were averaging 5.5
    million tons at our coal mine and about $21 million to our
    tribal coffers, roughly 66 percent of our general fund budget.
        When we did that study, it showed in the hundreds of
    billions just from that one coal mine how it affected the
    region. To answer your question, Senator Ernst, if we get the
    ability, under the Indian commerce clause, the only ones that
    can regulate commerce between tribes is Congress. States cannot
    impede upon that.
        When we talk about these issues trying to move forward in
    this arena and be a participant in the economy, it will not
    only be benefiting the Crow people or their jobs, it will be
    benefiting the region and the area. That is a lot of new money
    to the States and a lot of new jobs to the States.
        To answer your question in detail, I didn't want to go into
    that too much but I had to say all that to get to this point to
    clarify that the jobs that could be created by the companies
    that are out there, or lack thereof right now, and your
    entrepreneurs that could be created, the jobs that could be
    created, it is not a shift of wealth within the States. It is
    new money. It is new taxes. It is new opportunities. There is
    no telling what it is going to do like new roads, new bridges,
    new whatever, new opportunity.
        It is about opportunity. Without that opportunity, like the
    Good Book says, ``Faith is the substance of things hoped for,
    the evidence of things not seen.'' Without that hope, without
    that opportunity, a lot of people would lose faith.
        Thank you.
        Senator Ernst. God bless you, Mr. Stewart. Thank you for
    being here.
        Thank you, Mr. Chairman.
        Senator Barrasso. Thank you, Senator Ernst.
        Senator Boozman.
        Senator Boozman. Thank you, Mr. Chairman. Thank you for
    holding the hearing.
        We appreciate you all being here and testifying about this
    very, very important subject.
        Mr. Booker, investment in energy infrastructure, including
    pipelines, provides good-paying jobs for American workers. I
    think we all very much agree with that.
        I understand a recent study by the Institute for
    Construction Economic Research found pipeline construction
    supports more than 41,700 jobs for union workers, each year
    generating over $2.3 billion in wages.
        Can you elaborate on the job opportunities in pipeline
    construction for your members?
        Mr. Booker. Absolutely. Thank you for the question,
    Senator.
        The pipeline industry, with discovery of the Marcellus
    Shale, the Utica Shale and the availability and technology that
    has allowed us to gain that natural resource, has been a
    tremendous benefit for all workers, union and non-union in the
    Northeast region from Ohio, Pennsylvania, West Virginia and on
    to the Northeast.
        The discovery of that has allowed us to put a lot of people
    to work. If you look back at 2008 and 2009 when the economy
    crashed, the sector of the economy that kept going was in the
    pipeline industry and the discovery of the natural gas. It kept
    communities together, families together and people working.
        The pipeline infrastructure, the lack of pipeline
    infrastructure is critically important. We need to modernize
    the pipeline infrastructure and build new pipeline
    infrastructure which is going to create the jobs for all
    Americans.
        Senator Boozman. When you have obstruction and delays for
    obstruction and delay's sake, what does that do to things
    regarding, as you say, union and non-union workers, tribes, and
    non-tribes?
        Mr. Booker. We look for predictability just like the owner
    of the pipeline does and the end user. When you go home at
    night, you want to turn on the light, turn on your air
    conditioner and make sure it works.
        For us, when unnecessary delays happen, when we have
    planned and done the training for the work force to build that
    necessary infrastructure, to then have them be ready to go to
    work in that community and then they are back in the
    unemployment line. Their wages dramatically decrease and they
    are not able to contribute to the local economy.
        It affects our training and our capacity to train
    tomorrow's workers as well.
        Senator Boozman. I think you make a great point. You can
    play with good rules and you can play with bad rules. If you do
    not know what the rules are, it makes it very, very difficult
    to go forward. We appreciate that.
        Mr. Stewart, I really do not have a question for you. I
    think you have answered all the questions in a very good way. I
    am glad you paid your way here to contribute. I want to go on
    record as agreeing with you that certainly States and tribes
    should have the ability to regulate water infrastructure. We
    need to work hard and I think this type of legislation
    reaffirms the importance of that.
        Again, thank you very much for being here.
        Mr. Stewart. Thank you.
        Senator Boozman. Mr. Booker, it is clear that the
    implementation of Section 401 has created confusion resulting
    in delays of important infrastructure projects and we discussed
    the uncertainty.
        Do you believe the Water Quality Certification Improvement
    Act helps restore predictability and certainty while balancing
    State and Federal authorities?
        Mr. Booker. I do. In my testimony, we believe in the
    States' rights. We believe there should be regulation. It has
    to be predictable though. You cannot change the rules of the
    game halfway through the game.
        I think this is a necessary change that puts everyone in a
    predictable and certain way as to here are the rules, here is
    what you have to follow. If you can check every box, you will
    be able to build your project. If you cannot, then you are not.
    We support that.
        Senator Boozman. Do you want to comment on that, Mr.
    Stewart? I know the tribes certainly are kind of the classic as
    far as uncertainty, rules changing and this and that?
        Mr. Stewart. Oh, yes. Since I only have a little bit of
    time, we can sit down later and talk about this.
        To answer your question, when we are trying to be good
    actors, provide for our families, and try to do the things that
    need to get done, as a man and soon to be grandfather, I have
    to think about the generations before me, those that are
    coming.
        We do not want to continue to move this goalpost. Water
    quality certification should mean certification of water
    quality, not what the Sierra Club wants or what this club or
    that club wants. It should mean what it says it is supposed to
    mean.
        As a man, I was always taught that what you say is very
    precious. You cannot take it back. That falls in line with the
    integrity of a person and the integrity of the law. When we
    allow different entities, folks or States to break the
    integrity of that law, then we are violating the intent.
        Those ramifications are very detrimental to not only the
    present generation but generations to come. It is something we
    just cannot play with. We have to be true to our word. Water
    quality certification should say what it says plain and simple.
        Senator Boozman. We appreciate that. Certainly those are
    simple truths. As a fairly recent grandfather, you are going to
    enjoy that. That will be a very, very positive thing in your
    life.
        Thank you, Mr. Chairman.
        Senator Barrasso. Thank you, Senator Boozman.
        Before turning to Senator Cardin, I would submit to the
    record something Mr. Willardson referenced, which was the
    environmental impact statement for the Millennium Bulk
    Terminal. In that document, the State of Washington itself
    concluded that there would be no significant impacts to water
    quality, wetlands, surface waters or flood plains.
        The State of Washington denied the project for political
    reasons. The State itself found these impacts were not
    problematic in its own environmental impact statement.
        I am going to submit that for the record. Without
    objection, so ordered.
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        Senator Barrasso. Senator Cardin.
        Senator Cardin. Mr. Chairman, thank you very much.
        I thank all the witnesses for being here today.
        I would ask consent, if I might, to put into the record, a
    letter from the Attorney General of Maryland, Brian Frosh,
    raising concern with regard to S. 3303; a letter from the
    Association of Clean Water Administrators also expressing
    concern with regard to this legislation; and related documents.
        Senator Barrasso. Without objection.
        [The referenced information was not submitted at time of
    print:]
        Senator Cardin. Thank you, Mr. Chairman.
        Mr. Willardson, I want to ask a practical question. I have
    significant concerns about the changes being suggested with
    regard to the 401 waiver from the States. I want to ask about
    the practical problem of shortening the period to 90 days.
        There is an issue whether there is adequate time for a
    State to make that assessment within a 90-day period. There are
    documents that have to be received and so forth. One of the
    unintended consequences could be that because there is
    insufficient time and information, a States rejects the waiver,
    therefore counterproductive to the intent of the bill, to
    expedite the process.
        I would like to get your assessment as to whether this is a
    real concern or not. I have heard from people in Maryland about
    this particular issue. I would like to get your assessment as
    to how realistic it is for States to have adequate information
    and make an adequate review within a 90-day period?
        Mr. Willardson. As I noted, most of the decisions are
    currently made within 90 days. Obviously, with a very complex
    project, such as the Millennium Pipeline, it can take more
    time. The FERC licensing process for hydropower and relicensing
    generally takes about 5 years. FERC has an alternative
    licensing process which applicants can now opt in to begin
    early consultation with the States.
        Generally, the 401 question is brought in about 2 years
    before the license would be issued again. Currently, States
    have 1 year to make those determinations. Ninety days would be
    very difficult on complex projects. Obviously, many of these
    are complex projects.
        As I said, we have not dealt with the pipelines to that
    degree but I would point out in the State of Washington, their
    determination is already under review by the Water Quality
    Commission which will make a determination as to whether or not
    the director's decision was appropriate.
        We are very cognizant of the energy needs of this Country,
    the infrastructure needs, and permitting those in a timely
    manner. I would point to the Western Governors Association's
    energy policy which is in all of the above.
        I would also point out from a council perspective that we
    have worked very hard with our tribal members and with the Crow
    as well on Indian water rights settlements. Under the Clean
    Water Act, tribes are treated as States. They have 401 water
    quality permitting authority where they have been granted
    treatment as tribes.
        These are very complex projects. Most of them could be
    completed within the 90 days. Some, I think, it would be very
    difficult to get the information to make a sound decision.
        Senator Cardin. You may not be familiar with the Conowingo
    Dam which is a very important energy source for the East Coast
    of the United States, the second largest electrical energy
    generating dam on the East Coast of the United States. It is a
    very, very important source of energy.
        Exelon is the operator of that particular facility. It is
    in the relicensing stage and review is currently underway. The
    expectation is that ultimately the waiver will be granted but
    it will be based upon certain conditions. That will take well
    beyond any 90-day period for that process.
        It is a pretty complicated process on the Susquehanna and
    is extremely controversial in regard to water quality in the
    Bay. Particularly with recent storms, the amount of surge of
    materials that are released is a major concern. A project like
    that, it is not realistic to look at a 90-day period.
        Mr. Willardson. It would be very difficult to make that
    determination in 90 days, with the exception of the timing of
    the request for the certification. If that request comes
    following the completion of the environmental impact statement
    so those questions are coordinated, then the State could act,
    given that information, promptly.
        Obviously, it would be counterproductive if the time is not
    sufficient for the State to act because they would simply, as
    they do now, deny the permit generally without prejudice so it
    could be resubmitted when there was sufficient information or a
    complete application.
        Senator Cardin. That is how I expect you would see some of
    these actions by the State in order to get more time if there
    was a hard time period they could not meet. My own assessment
    in a project like the Conowingo Dam is there are so many
    stakeholders. It is such a complicated process. I think it is
    already 40 years that this process goes forward.
        The opportunity only presents itself once in a generation.
    It is the speed bump for a lot of consideration of different
    issues and a lot of stakeholders. It is a complicated process.
        Mr. Willardson. Those permits are generally for 40 or 50
    years for the operation of the dams. I was a resident of
    Philadelphia for a couple of years so I am familiar with the
    Susquehanna.
        Senator Cardin. A lot of good things have happened during
    the certification process. Again, I do not think anyone is
    questioning the continuation of the dam; it is critically
    important for energy. It is also important for water quality
    that we get it right.
        Thank you, Mr. Chairman.
        Senator Barrasso. Thank you, Senator Cardin.
        This bill does have the strong support of the American
    workers across the Country. I would like to enter into the
    record letters of support of the bill from representatives of
    the International Brotherhood of Electrical Workers in
    Massachusetts, Connecticut, Rhode Island, New Hampshire,
    Vermont and Maine, as well as the Rhode Island Building and
    Construction Trades Council.
        [The referenced information follows:]

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        Senator Barrasso. I want to thank all the witnesses for
    being here. Thank you for your testimony and for your timely
    response.
        The record will stay open for an additional 2 weeks.
    Members may submit written questions.
        Kind of in response to Mr. Stewart's last answer where he
    talked about an organization or group, I think you mentioned
    the Sierra Club should not be able to stop projects because it
    is their agenda. There is a publication in the New Jersey
    Spotlight today, August 16, where it is very clear that Section
    401 is viewed by environmental groups and some States as a tool
    to block energy projects, not a tool to keep water clean.
        You talked specifically, Mr. Stewart, about the legislation
    and laws about clean water ought to apply to keeping water
    clean. The director of the New Jersey Sierra Club stated in
    this article in today's New Jersey Spotlight, which I am
    submitting to the record, ``Section 401 review is probably the
    most effective tool we have to fight pipeline projects,'' not
    to keep water clean but to fight projects.
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        Senator Barrasso. With that, I thank the witnesses. We
    appreciate you all being here.
        This hearing is adjourned.
        [Whereupon, at 11:28 a.m., the committee was adjourned.]
        [Additional material submitted for the record follows:]

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