[Senate Hearing 116-145]
[From the U.S. Government Publishing Office]
S. Hrg. 116-145
HEARING ON S. 1087, THE WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF
2019, AND OTHER POTENTIAL REFORMS TO IMPROVE IMPLEMENTATION OF SECTION
401 OF THE CLEAN WATER ACT: STATE PERSPECTIVES
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
----------
NOVEMBER 19, 2019
----------
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
S. Hrg. 116-145
HEARING ON S. 1087, THE WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF
2019, AND OTHER POTENTIAL REFORMS TO IMPROVE IMPLEMENTATION OF SECTION
401 OF THE CLEAN WATER ACT: STATE PERSPECTIVES
=======================================================================
HEARING
before the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
__________
NOVEMBER 19, 2019
__________
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
39-711 PDF WASHINGTON : 2020
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED SIXTEENTH CONGRESS
FIRST SESSION
JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma THOMAS R. CARPER, Delaware,
SHELLEY MOORE CAPITO, West Virginia Ranking Member
KEVIN CRAMER, North Dakota BENJAMIN L. CARDIN, Maryland
MIKE BRAUN, Indiana BERNARD SANDERS, Vermont
MIKE ROUNDS, South Dakota SHELDON WHITEHOUSE, Rhode Island
DAN SULLIVAN, Alaska JEFF MERKLEY, Oregon
JOHN BOOZMAN, Arkansas KIRSTEN GILLIBRAND, New York
ROGER WICKER, Mississippi CORY A. BOOKER, New Jersey
RICHARD SHELBY, Alabama EDWARD J. MARKEY, Massachusetts
JONI ERNST, Iowa 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
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Page
NOVEMBER 19, 2019
OPENING STATEMENTS
Barrasso, Hon. John, U.S. Senator from the State of Wyoming...... 1
Duckworth, Hon. Tammy, U.S. Senator from the State of Illinois... 2
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware,
prepared statement............................................. 147
WITNESSES
Gordon, Hon. Mark, Governor, State of Wyoming.................... 5
Prepared statement........................................... 8
Responses to additional questions from Senator Merkley....... 15
Stitt, Hon. J. Kevin, Governor, State of Oklahoma................ 19
Prepared statement........................................... 21
Response to an additional question from Senator Barrasso..... 25
Watson, Laura, Senior Assistant Attorney General and Division
Chief, Washington State Attorney General's Office.............. 28
Prepared statement........................................... 30
Response to an additional question from:
Senator Carper........................................... 42
Senator Merkley.......................................... 44
ADDITIONAL MATERIAL
From Senator Barrasso:
Letters:
To Hon. Andrew R. Wheeler, Administrator, U.S.
Environmental Protection Agency, from Senator Barrasso
et al., October 21, 2019............................... 252
To Hon. Andrew Wheeler, Acting Administrator, U.S.
Environmental Protection Agency, from the State of
Louisiana Office of the Attorney General, February 26,
2019................................................... 275
To Administrator Wheeler, U.S. Environmental Protection
Agency, from Mark Gordon, Governor, State of Wyoming,
May 24, 2019........................................... 277
To Administrator Wheeler, U.S. Environmental Protection
Agency, from Mark Gordon, Governor, State of Wyoming,
October 21, 2019....................................... 280
To Ms. Lauren Kasparek, Office of Water, U.S.
Environmental Protection Agency, from Lighthouse
Resources Inc., October 21, 2019....................... 285
To Senators Barrasso and Carper, from the Portland Cement
Association, November 19, 2019......................... 289
To Senator Barrasso, from the Oklahoma Department of
Environmental Quality, December 2, 2019................ 291
To Senators Barrasso and Carper, from Millennium Bulk
Terminals, Longview, LLC, December 4, 2019............. 292
Comments of the Environmental Defense Fund on Con Edison's
Gas Moratorium--NYSPSC, February 13, 2019.................. 296
Case 19-G-0080. Comments of the Environmental Defense Fund,
State of New York Public Service Commission, In the Matter
of Staff Investigation into a Moratorium on New Natural Gas
Services in The Consolidated Edison Company of New York,
Inc., Service Territory, February 28, 2019................. 301
Case 13:18-cv-05005-RJB. United States District Court,
Western District of Washington at Tacoma. Lighthouse
Resources, Inc.; Lighthouse Products, LLC; LHR
Infrastructure, LLC; LHR Coal, LLC; and Millennium Bulk
Terminals-Longview, LLC, Plaintiffs, and BNSF Railway
Company, Plaintiff-Intervenor, vs. Jay Inslee, in his
official capacity as Governor of the State of Washington;
Maia Bellon, in her official capacity as Director of the
Washington Department of Ecology; and Hilary S. Franz, in
her official capacity as Commissioner of Public Lands,
Defendants, and Washington Environmental Council, Columbia
Riverkeeper, Friends of the Columbia Gorge, Climate
Solutions, and Sierra Club, Defendant-Intervenors. Filed
March 8, 2019.............................................. 313
Enviro group backs pipelines, POLITICO, February 19, 2019.... 323
The U.S. Is Overflowing With Natural Gas. Not Everyone Can
Get It. The Wall Street Journal, July 8, 2019.............. 325
Cuomo's Carbon Contradiction, The Wall Street Journal,
October 20, 2019........................................... 332
From Senator Carper:
Letter to Senators Barrasso and Carper, from the Association
of Clean Water Administrators and the Association of State
Wetland Managers, September 6, 2018........................ 334
401 Certification Survey Summary, from the Association of
Clean Water Administrators, May 2019....................... 336
Letter to Senators Barrasso and Carper, from the Association
of Clean Water Administrators, November 26, 2019........... 338
Letter to Senators Barrasso and Carper, from the American
Sustainable Business Council et al., November 19, 2019..... 341
HEARING ON S. 1087, THE WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF
2019, AND OTHER POTENTIAL REFORMS TO IMPROVE IMPLEMENTATION OF SECTION
401 OF THE CLEAN WATER ACT: STATE PERSPECTIVES
----------
TUESDAY, NOVEMBER 19, 2019
U.S. Senate,
Committee on Environment and Public Works,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m. in
room 406, Dirksen Senate Office Building, Hon. John Barrasso
(Chairman of the Committee) presiding.
Present: Senators Barrasso, Carper, Inhofe, Capito, Cramer,
Braun, Rounds, Sullivan, Boozman, Wicker, Ernst, Cardin,
Merkley, Gillibrand, Duckworth, 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.
We are honored to welcome the Governors of the great States
of Wyoming and Oklahoma today to our Committee. Governor Gordon
and Governor Stitt have joined us to discuss a dangerous trend
preventing our Nation from reaching full energy independence.
A group of States are holding critical energy
infrastructure projects hostage by abusing a provision in the
Clean Water Act. Congress created Section 401 of the Clean
Water Act to give States a seat at the table before Federal
permits are issued. States deserve that seat at the table. The
majority of States carry out this role in a responsible way.
Recently, a select group of States have weaponized Section
401 to stop energy projects from moving forward. As the
director of the New Jersey Sierra Club said last year,
``Section 401 review is probably the most effective tool we
have to fight these projects.''
Last year, our Committee held a hearing on this important
issue. Many of the same projects discussed at last year's
hearing are still being blocked. The Millennium Bulk Terminal
Project in Washington State remains in litigation limbo. This
important project would allow cleaner burning coal from
Wyoming, Montana, and other western States to be exported to
markets around the world.
The State of Washington has refused to move forward with
certifying the project. Washington Governor Jay Inslee denied
the certification with prejudice, meaning the project will
never receive State approval. Governor Inslee's denial was
based on a claim that the project was bad for the environment.
Well, that is just plain wrong. The Millennium Bulk
Terminal Project would reduce emissions globally. Washington
State is not preventing Japan and others from burning coal.
Countries like Japan and others are going to get their coal
from somewhere.
Wyoming and our low sulfur coal is cleaner than coal from
other parts of the world. Millennium Bulk is a $680 million
project. If it had been constructed on time, the project would
have already generated more than $12.5 billion in economic
activity.
The project would generate thousands of good paying jobs in
Washington State. Local officials and labor unions strongly
support the project, and they want to see it move forward. It
would grow our economy and help protect our environment.
Opposing it makes no sense, but it is what happens when policy
decisions are made based on emotion and not fact.
But Millennium Bulk is just one example. Since last year's
Committee hearing, more projects have been delayed. The State
of Oregon denied a 401 certification for a $9.8 billion
liquefied natural gas terminal and pipeline project. This
project would export natural gas from the western United States
to Asia.
New York has denied multiple natural gas pipeline
certifications. Just like with the State of Washington, New
York's decisions are hurting the environment. The lack of
natural gas is causing more homes and businesses to rely on
fuel oil, a fuel that emits 38 percent more carbon dioxide than
natural gas. The Environmental Defense Fund recently noted, due
to pipeline constraints, more of the dirtier fuel oils have
been and will be burned across the Eastern Seaboard.
As the Wall Street Journal observed recently, inadequate
natural gas pipeline capacity leads to more pollution and
higher energy costs for American consumers. The Journal writes,
``The average household that uses natural gas for heating this
winter will spend $580 compared to $1,501 for heating oil and
$1,162 for electricity.''
That is why I introduced the Water Quality Certification
Improvement Act of 2019, so that States cannot unfairly block
energy projects. President Trump also issued an executive order
to update the almost 50 year old regulations.
Most States aren't abusing their Clean Water Act authority.
States like Wyoming, Oklahoma, and others have found
responsible ways to protect the water within their borders
while growing their economies.
The Governors of Wyoming and Oklahoma are here to testify
because Section 401 reform is critical to those States.
Thank you again for joining us today, and I would now like
to turn to Ranking Member Duckworth for opening comments.
OPENING STATEMENT OF HON. TAMMY DUCKWORTH,
U.S. SENATOR FROM THE STATE OF ILLINOIS
Senator Duckworth. Thank you, Mr. Chairman.
Thank you again for convening this hearing, and welcome to
all the witnesses who are here with us today.
Water quality issues are front of mind for Illinoisans,
because we and our neighbors are the stewards of the Nation's
largest body of freshwater, the Great Lakes. The Clean Water
Act is the landmark law that helps us be good caregivers. It is
our first line of defense in ensuring the integrity of the
Great Lakes and safeguarding the quality of the rivers,
streams, and tributaries that feed these national treasures.
The Great Lakes provide drinking water for tens of millions
of Americans and support 1.5 million direct jobs. Their
commercial, recreational, and tribal fisheries are valued at
more than $7 billion.
In addition to being our main source of drinking water and
providing the region with major economic opportunity, the Great
Lakes improve our quality of life in the Midwest. They are
where we fish and where we swim. Weakening the Clean Water Act
would threaten this way of life.
That is why I strongly oppose the Trump administration's
proposal that would degrade Section 401 of the Clean Water Act
and gut protections for vast bodies of water that serve
communities throughout the region. Section 401 guarantees that
States and tribes have a voice and say in projects that require
federally issued permits and licenses. Specifically, it rejects
a one size fits all system by establishing a certification
requirement that enables States and First Nation tribes to help
optimize the conditions that must be met to secure a permit or
license for a special project. Very reasonable.
I recognize that developers who fail to meet the
requirements identified by States and tribes may be frustrated
by denials in earning Federal approval for a given project.
However, silencing the voices and inputs of those Americans
most directly impacted is the wrong approach, especially since
these voices often represent the States and the tribes and the
tribal governments that are on the front lines working to
safeguard their water supplies.
It is disappointing, but not surprising, that the Trump
administration only cares about States' rights when it is to
look the other way, allowing corporate polluters to destroy
streams and pave over wetlands. During this hearing, we will
hear that Section 401 leads to delays on energy projects and
that it is abused to stop projects that are unpopular.
However, when I asked the EPA for more information on how
much time Section 401 adds to the permitting process, the EPA
could not provide any information. Today's proposal would place
highly restrictive requirements on what activities and impacts
a State can review, as well as restrictive deadlines on the
process. It would also give the Federal Government a veto on
projects, and there would be no notice to downstream States for
proposed projects.
Many would be shocked to learn that the Clean Water Act was
actually passed by a bipartisan majority in Congress and signed
into law by a Republican President. However, policymakers and
constituents of prior generations had lived through decades of
unchecked dumping of untreated sewage, industrial waste, and
agricultural runoff into our waters.
We must never take for granted how, over the past 50 years,
the Clean Water Act has reduced or eliminated pollution in our
Nation's waterways and slowed the rate of wetlands loss.
Congress should honor this progress by recognizing that more
work remains to be done today, tomorrow, and in future years.
Just last year, every beach in Illinois that was tested by
the Environmental Protection Agency had to close for at least 1
day, and South Shore Beach in southern Chicago was closed for
nearly 40 days because of water contamination. My constituents
want to swim on these beaches all summer long, and we will
never achieve that goal by weakening the Clean Water Act.
Simply put, healthy water means healthier families,
communities, and economies.
That is why I will continue fighting to preserve and
strengthen the Clean Water Act, and always put the health and
well being of my constituents above all other interests.
Mr. Chairman, thank you again for holding this hearing, and
I look forward to hearing from our witnesses.
Senator Barrasso. Well, thank you very much, Senator
Duckworth, for your opening statement.
Now, we will turn to our witnesses. I am very pleased to
introduce Governor Mark Gordon, who was sworn in as the State
of Wyoming's 33rd Governor on January 7th of this year.
Governor Gordon has served the people of Wyoming for years. He
is a native of Kaycee, Wyoming, in Johnson County, grew up and
worked on his family's ranch, became a very successful rancher
and businessman himself.
Prior to his election as Governor, he also served as State
Treasurer from 2012 until this January. His leadership as State
Treasurer resulted in improved returns on State investments,
better protection of State savings, and increased transparency
for the public.
Governor Gordon's efforts to improve the State's financial
portfolio resulted in Wyoming being ranked No. 1 in the country
for transparency. As Governor, he is working to make Wyoming's
government more accessible, productive, and efficient.
Governor Gordon, we are honored that you are here
testifying before the Committee, and I know you have much to
share about Wyoming, our State's commitment to responsible
energy production, and the State's strong record of
environmental protection.
But before we go to you--and I am looking forward to our
continued partnership to grow Wyoming's economy--before calling
on you, I would like to ask Senator Inhofe if he would like to
introduce his esteemed Governor and first lady.
Senator Inhofe. Thank you, Senator Barrasso.
Mr. Chairman, I am proud to introduce to the Committee
Oklahoma's First Lady, Sarah Stitt.
Sarah, would you stand up, please?
[Applause.]
Senator Inhofe. With her is Governor Stitt.
[Laughter.]
Senator Inhofe. Governor Stitt is relatively new to the
world of government, but he has been well known for a long time
for his accomplishments in the State of Oklahoma. A fourth
generation Oklahoman, Kevin spent his life as an entrepreneur,
and founded Gateway Mortgage about 20 years ago. That has been
a model. Under his leadership, it has gone from a small
mortgage company to a national giant, operating in more than 40
States with over 1,200 employees.
Last year, Kevin was elected Governor, and his
administration is already reforming our State. He is focused on
all the right things, with a vision of making Oklahoma a top 10
State in all key statistical areas, and he is well on his way
by cutting bureaucracy, growing jobs, and improving Oklahoma's
roads and bridges.
I have gotten to know him well and am confident that he
will continue to make Oklahoma proud, and I look forward to
hearing his testimony today. He has accomplished so much in
such a short period of time, and it shows that States are
relevant.
Thank you, Mr. Chairman.
Senator Barrasso. Well, thank you very much, Senator.
I would also like to welcome to the Committee today Laura
Watson, who is the Senior Assistant Attorney General and
Division Chief for the Washington State Attorney General's
Office.
Welcome.
I want to remind the witnesses that your full written
testimony will be made part of the official hearing record, so
please try to keep your statements to 5 minutes so that we have
time for questions. We look forward to hearing your testimony.
Governor Gordon, would you please begin?
STATEMENT OF HON. MARK GORDON,
GOVERNOR, STATE OF WYOMING
Mr. Gordon. Thank you, Mr. Chairman, it is a pleasure to be
here.
Well done, Senator Inhofe.
Thank you also, Ranking Member Duckworth, and members of
the Committee.
Wyoming is blessed with an abundance of resources and has
thus been the center of energy production and a leader in
environmental protection. Much of our economy is in fact based
on our ability to export energy to heat homes, light cities,
and better lives.
We are also home to thriving wildlife and some of the
Nation's cleanest air and water. Wyoming is headwaters to three
of the Nation's major rivers: the Missouri, the Colorado, and
the Columbia. Protecting water quality within our State has
always been important to Wyoming. We recognize the value of
clean water and earnestly strive to protect it.
This is done, in part, through responsible application of
the Clean Water Act Section 401. Regrettably, a recent Clean
Water Act Section 401 decision by Washington State imperiled
the development of infrastructure that could expedite the way
Powder River coal gets to overseas customers.
In the case of Millennium Bulk Terminal in 2017, Washington
State blocked the terminal's construction by inappropriately
denying Section 401 certification, citing several non-water
quality related impacts. This was a protectionist maneuver,
based on alleged effects that are outside the scope of Section
401. With a fanciful interpretation of Section 401 processes,
Washington State actively prevented coal mined in Wyoming,
Montana, Utah, and Colorado efficient access to foreign
markets.
The Clean Water Act, particularly Section 401, is designed
to allow States to protect water quality within their
boundaries. It is not a tool to erect trade barriers based on
political or parochial whims, nor a way to preempt interstate
commerce.
Reform of Section 401 is not an assault on the environment,
a means to prevent States from taking control of their own
destiny, or a cloaked attempt at climate change denial. We
acknowledge that CO2 concentrations in our
atmosphere are an urgent concern for our climate and must be
addressed effectively, while we also recognize that the world
needs energy.
With commitment, vision, and courage, we can take advantage
of all our resources in a responsible manner to solve for both
a cleaner and better world. I come to you today with a goal of
finding solutions. We can protect water quality, build
infrastructure responsibly, address climate change, and promote
interstate commerce under Section 401.
Clean Water Act Section 401 reform should be driven by
facts and designed to minimize negative externalities and
social cost. The Clean Water Act already provides a framework
for this by granting broad responsibilities to States under
Section 401 while allowing the necessary flexibility to fulfill
their roles as co-regulators to protect our Nation's waters.
Unfortunately, the Section 401 certification process has
also led to inconsistent interpretation and implementation
among States. Loopholes in Federal environmental regulations
should not be exploited to advance peripheral agendas. Section
401 certification decisions must be focused, efficient,
reliable, and appropriately balance the Federal Government's
province with State autonomy.
Chairman Barrasso's bill, S. 1087, entitled Water Quality
Certification Improvement Act of 2019, recommends real
improvements to the Clean Water Act Section 401 certification
process, while also respecting the rights of States under the
Commerce Clause to the United States Constitution. I
emphatically support these efforts.
In Wyoming, our Section 401 certifications are based on
water quality and completed within a reasonable time. That is
usually around 60 days on average. Elsewhere, some States
apparently have found in Section 401 of the Clean Water Act
novel ways to block projects rather than using it correctly, as
a regulatory framework to address attendant water quality
concerns.
The congressional purpose of the Clean Water Act was to
protect and maintain water quality. However, some certifying
authorities have interpreted Section 401 to include tangential,
non-water quality related considerations in their review.
In Washington, for example, the Department of Ecology
decided to employ the State's open ended discretionary policy
to deny the Millennium Bulk Terminal Section 401 certification.
The department's decision was heavily skewed on non-water
quality based impacts, ranging from greenhouse gas emissions,
from rail noise and vibration from trains, social and community
impacts from noise and air pollution, decreased rail safety, as
well as tribal and cultural resource impacts.
The inclusion of these factors is arguably superfluous to
the original intent of the Clean Water Act. Properly, the scope
of Section 401 review or action must directly connect to
addressing water quality impacts from potential discharges
associated with a proposed federally licensed or permitted
project. The Washington Department of Ecology denial of 401
certification for the Millennium Bulk Terminals was fickle,
based on loose if not absent connection to impacts on water
quality.
Furthermore, when Washington State denied the project with
prejudice, it precluded the terminal's opportunity to amend its
application or ever to reapply. Evidently, Washington found
Section 401 useful as a tool to curtail a specific project it
found displeasing, rather than allowing the project's applicant
the opportunity to address appropriate associated water quality
impacts.
The two main areas that I advocate for reform in context
with Wyoming's experience relate to one, the scope of
environmental reviews, and two, the basis for certification
denials. Certification denials must have a clear and reasonable
assertion that the project activities would, No. 1, result in
violation or fail to conform to one or more surface water
quality standards; two, result in an increase in pollutant
loading to a Clean Water Act 303(d) listed water; or three,
would not conform to applicable 401 certification conditions or
Corps nationwide permit conditions.
Finally, let me speak to the correct implementation of the
Clean Water Act, cooperative federalism, and the essential
rights of States. States must be afforded reasonable authority
over land and water resources within their borders. Section 401
is an essential tool granted by Congress which was intended to
give States discretion in reviewing and conditioning 401
certifications and to ensure concordance with both Clean Water
Act and State surface water quality standards.
Still, proper implementation of Section 401 of the Clean
Water Act should line up with the original intent and also
recognize the individual jurisdictional rights of States to
manage their own affairs and conduct commerce. The draft Water
Quality Certification Improvement Act of 2019, sponsored by
Chairman Barrasso and Senators Daines, Inhofe, Capito, Enzi,
and Cramer, offers a much needed improvement to Section 401 of
the Clean Water Act by reducing uncertainty and limiting the
potential for misuse.
Rules and regulations should be squarely centered on
purpose, in this case, water quality. They should not become an
all of the above artifice to thwart unwelcome projects with
prejudice.
I appreciate your efforts to clarify Section 401
implementation and the EPA's recent efforts to modernize its
Section 401 guidance. Both are needed, and I look forward to
answering your questions.
Thank you.
[The prepared statement of Mr. Gordon follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you very much, Governor Gordon.
Governor Stitt.
STATEMENT OF HON. J. KEVIN STITT,
GOVERNOR, STATE OF OKLAHOMA
Mr. Stitt. Chairman Barrasso, Ranking Member Duckworth, and
senior member Senator Inhofe, thank you for inviting me to
testify on why it has important for my State of Oklahoma to
have clarity and certainty around Section 401 of the Clean
Water Act.
As you may be aware, I am 11 months into being Governor of
the great State of Oklahoma. Less than 1 year ago, I was in the
private sector, building a business in two of the most
regulated sectors in the United States, banking and mortgage
lending. I started my company from scratch and built it to over
1,200 employees doing business in 41 States.
I say this because I want to share that as a former CEO, I
understand the importance of common sense regulations.
Efficiency and certainty from State and Federal regulators
allow a CEO to put more of his or her focus on creating jobs
and growing the economy. Anything short of regulatory certainty
and predictability stifles job creation, chills capital
markets, and slows down innovation for advances that make us a
better and stronger society.
Today, serving as Governor of the great State of Oklahoma,
I have had the honor and opportunity to view the regulatory
environment from this side of the government. I can speak with
great assurance that regulations are best left to the States as
often as possible. We know our people, we know our geography,
we know our economies, and we know best when innovation demands
regulatory flexibility, and when protecting our citizens
requires action.
Oklahoma is a huge success story for States' rights and
Federal partnership. I am here today to share with you why we
must continue to strike this balance between modernizing and
clarifying Section 401 of the Clean Water Act.
As you all know, Oklahoma has a long and storied history of
leadership and innovation in the production of traditional
fossil energy. We are grateful to Senator Inhofe who has been a
champion for our State on these issues.
Today, Oklahoma ranks No. 3 in natural gas production. We
rank No. 4 in oil production, and we are a leader in natural
gas liquids that form the building blocks for the products
Americans use every day. We are proud to be considered the
pipeline capital of the world.
Oklahoma is top 10 in all aspects of energy, as well as in
the environment. We are enjoying some of the cleanest drinking
water in our State's history.
We have the most practical regulatory framework and some of
the most efficient permitting review times in the country. We
are meeting our obligations and certifying water quality
standards within 60 days of the application, well under the 1
year timeline proposed by the Environmental Protection Agency.
Thanks to Oklahoma produced natural gas and the shale
revolution, my State has also reduced emissions in
SOx, NOx, and CO2 at more than
double the national average. The national average for
CO2 reduction is nearly 15 percent since 2015, while
Oklahoma has reduced its CO2 emissions in the power
sector by more than 37 percent, just since 2011.
We have made major advancements in environmental quality
while also maintaining the No. 1 ranking in cheapest
electricity cost to the customer. As a result, Oklahoma is the
leading generator and exporter of power in the Southwest Power
Pool, which is our regional transmission organization. In fact,
28 percent of the power produced in Oklahoma is sent out across
transmission lines in the SPP, exporting Oklahoma's emission
reducing energy to all of our neighboring States.
Oklahoma is the epicenter of America's energy dominance,
and we want our success to be shared with our neighbors and our
fellow States as far north as Maine, and as far south as the
ports in Houston, Texas. Unfortunately, the misuse of Section
401 threatens Oklahoma's potential and the endless
opportunities for our 4 million residents. It prevents Oklahoma
from achieving all it can be because of a loophole within
Section 401 that is allowing a small handful of coastal States
to dictate the future for all the other 40 States.
Unfortunately, this is just unacceptable. The point was
absurdly exemplified the last winter when a Russian tanker of
liquefied natural gas was sitting in the Boston Harbor,
providing for the Northeast U.S. from losing its heat during
last winter's polar vortex. Imagine what that picture
communicates to hard working oil and natural gas employees
around the country. Do we really want our jobs and our tax
dollars needlessly going to Russia?
For that purpose, I support the actions taken by EPA and
members of this Committee to restore certainty to the Clean
Water Act permitting and certification process under Section
401. A clear scope and a reasonable timeline are not invasive
to States' rights. The current proposed rule, and the
opportunity to strengthen this legislatively does nothing to
prevent Oklahoma's regulators from properly and scientifically
considering whether a project negatively affects water quality
in our State.
It has been almost 50 years since this regulation has been
reviewed, and I support creating a reasonable baseline for
Clean Water Act permitting and certification of interstate
infrastructure, whether it is transmission lines, pipelines, or
an interstate highway, to get Oklahoma's products to the
market.
Once again, thank you for allowing me to be here today. I
look forward to answering your questions.
[The prepared statement of Mr. Stitt follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Thank you very much, Governor.
Ms. Watson.
STATEMENT OF LAURA WATSON, SENIOR ASSISTANT ATTORNEY GENERAL
AND DIVISION CHIEF, WASHINGTON STATE ATTORNEY GENERAL'S OFFICE
Ms. Watson. Thank you Chairman Barrasso, Ranking Member
Duckworth, and members of the Committee.
My name is Laura Watson. I am a Senior Assistant Attorney
General of Washington State, and I am honored to be here today
to talk about how important a State's role is in protecting
against water pollution for all Americans.
Under the Clean Water Act of 1972, Congress empowered
States and tribes to serve as co-regulators with the Federal
Government. This includes longstanding State authority under
Section 401 to ensure that federally permitted activities and
projects don't harm State waters.
For the past 50 years, States have successfully implemented
Section 401. For example, in the past half-century, Washington
State has issued thousands of 401 certifications and
approximately 30 denials. Only a few of these decisions have
ever been appealed.
Though States have demonstrated a fair and successful
implementation of Section 401, today Section 401 is on the
chopping block.
First, EPA has proposed a rule that would seize control of
401 decisions from States and place those decisions in the
hands of Federal agencies. EPA's proposed rule would
drastically narrow the scope of 401 review. It would severely
restrict the amount of time and information that States have to
make their decisions, and it would grant Federal agencies veto
authority over State decisions.
EPA's proposal crosses the legal line in many ways, which
is why it is broadly opposed by States and tribes across the
country and political spectrum.
South Dakota says that the rule is a poorly disguised
effort by the Federal Government to severely limit State and
tribal efforts to enforce water quality standards.
West Virginia says that the rule would undermine the
authority originally provided to States in the Clean Water Act.
Arkansas says that allowing the Federal Government to
override a State decision is by no means in the spirit of
cooperative federalism.
Montana says that Montana's ability to protect water
quality should not be weakened by Federal rulemaking.
The National Congress of American Indians says that the
proposed rule impermissibly threatens Indian tribes' right to
self-governance, and the Upper Snake River Tribes Foundation
calls the rule a slap in the face of tribal sovereignty.
EPA's rule is only one concern that we face today. Senate
Bill 1087 imposes some of the same problematic concepts in the
rule and would further threaten to erode State rights. Both
proposals run counter to the concept of cooperative federalism
and the spirit and letter of the Clean Water Act, and both
proposals would inevitably compromise clean water for families
and communities across the Nation.
These extreme changes being proposed are both unfounded and
unnecessary. They appear to be based on disagreement with a few
State decisions, including Washington State's denial of a
Section 401 certification for a proposed coal export facility
on the Columbia River. That decision has been improperly cited
as an abuse of authority, so I would like to set the record
straight.
Washington's 401 denial was based on water quality grounds.
Climate change and greenhouse gas considerations were in no way
a factor in the State's denial. I understand that the denial
decision will be made part of the record today, and you will
see that my description of it is 100 percent accurate.
Rather than upending five decades of cooperative federalism
and eroding the rights of every State and tribal government
over a single 401 decision, we urge this Committee to recognize
the important role that States and tribes play in protecting
water quality, and to uphold the longstanding partnership we
share under the Clean Water Act.
I thank you, and I look forward to your questions.
[The prepared statement of Ms. Watson follows:]
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Senator Barrasso. Thank you very much Ms. Watson.
Thank you for the testimony of all of you.
We will now start with rounds of questioning, and I would
like to start with Governor Gordon.
The Washington blockade of coal exports prevents millions
of tons of Wyoming coal from reaching foreign markets. I am
going to, without objection, enter into the record a letter in
support of today's hearing from the National Mining
Association.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Governor Gordon, the Association explains
that ``For every million tons of coal exported, an estimated
1,320 jobs are created.'' So I would like to ask, how is
Washington State's abuse of the certification process hurting
Wyoming workers and harming the economy of our home State?
Mr. Gordon. Thank you, Mr. Chairman. Washington's blockade
has brought a certain amount of uncertainty to coal markets
going forward unjustifiably. In Wyoming, we have seen this year
in the coal markets, with the work that has been done
nationwide, including Washington, several bankruptcies of
Westmoreland Coal, Arch, Peabody, Cloud Peak, Blackjewel, with
attendant pension challenges, healthcare challenges.
We had 350 workers that were out of work in Gillette as of
July 1st when Blackjewel went down. Our State has had to
respond dramatically to that to make sure that people found new
jobs, to work with companies to try to find a placement for
that and also to handle some of the challenges with healthcare.
That is not exclusive to Wyoming. The coal strip also has
seen losses of jobs and population, and it is a dramatic loss
to the State's revenues.
Let me just say, too, Mr. Chairman, that we do it better.
We have the strongest environmental laws in the world. We
require the best working conditions in the world. The coal is
going to be burned overseas regardless. Washington's own
documentation indicated that, as far as global warming is
concerned, that the work that was done to get our coal to
market would actually reduce carbon emissions over time.
I just want to make that point once again. We have strong
environmental and labor conditions here. Our mining is done
better under better reclamation standards and fully bonded, so
I think generally speaking it is problematic to have that, what
we have seen with the losses of jobs.
Senator Barrasso. So the State of Washington has access to
the coast, something that landlocked States like Wyoming do
not. What kind of precedent does it set when States that are
landlocked can have their lawful products blocked from being
exported by coastal States?
Mr. Gordon. Well, so, I think this is an issue that,
hearing Ms. Watson's testimony where she talked about the
erosion of rights, this goes back to the beginning of our
country and certainly part of the Constitution. You can read in
The Federalist 6 and 7 that talk about the various rivalries
between States.
What happens is when coastal States deny access to products
that are either raised or produced in the center of the
country, we lose our marketplace. We lose interstate commerce,
we lose our ability to be able to have a good economy, and
where does that all end?
If you look whimsically at how you want to apply these
rules, natural gas could be one of the issues. We've seen that
at Jordan Cove. Perhaps GMO grains become displeasing, and we
decide we are not going to ship GMO products. Lumber, perhaps
that is another thing that could be decided against, or dairy
products, any of these things that can be traded
internationally.
Mr. Chairman, I think it is about balance. That is exactly
what your bill does. It does a very good job of balancing
States' rights to co-manage their own affairs with those that
have to do with the Commerce Clause of the Constitution.
Senator Barrasso. Governor Stitt, you have a lot of
experience with permitting gas pipelines in Oklahoma. How does
Oklahoma protect water quality while permitting these critical
pipelines?
Mr. Stitt. Our DEQ certification process, we look at that
and make sure that all of it administratively is complete. Then
we look at all the maps, the drawings, the studies, the
environmental impact assessments, the plans, information
related to endangered, rare, or threatened species. Then we
start going through the surface water and the groundwater and
the natural resources potentially affected by any of these
activities. Then we make sure that it meets with all the Clean
Water Act's and then our State quality standards, and we do all
this within 60 days.
I would like to just share with you some of the facts that
we are so proud of in Oklahoma. Oklahoma was No. 1 in the
Nation in phosphorus load reduction in 2018 in our water
bodies. Oklahoma was No. 3 in the Nation in nitrogen load
reductions in 2018. Oklahoma is No. 1 in the Nation for non-
point source success stories, with more water bodies de-listed
from the impaired list than any other State.
So we have some of the cleanest water, and yet we are the
pipeline capital of the world, so the Diamond pipeline that
runs just south of Tahlequah, Oklahoma, was just ranked the
cleanest and the best tasting water in the country. We are very
satisfied with our water quality standards and how we review
all those 401 applications.
Senator Barrasso. Thank you.
Senator Duckworth.
Senator Duckworth. Thank you, Mr. Chairman. From the
testimony so far, you would think that this was a hearing about
the importance of coal as an energy source, as a global energy
source, as well as coal as a major provider of employment, and
I could not agree with either more. Illinois is also a major
exporter of coal, and we are also a State from the center of
the country that must export through coastal States.
But what this hearing is really about is about States'
rights and tribal governments' rights to evaluate the impact of
pollution, and really, about the EPA's proposed revision to
Section 401. So let's focus ourselves back on the issue at
hand.
The EPA's proposed revision to Section 401 would narrow the
scope of what States can evaluate in reviewing a project's
water quality impact, and it only allows them to consider the
direct impact of a point sources discharge on water quality.
However, major infrastructure projects can have both direct
and indirect effects on water quality. For instance, pipelines
can directly degrade water quality through leaks or spills.
They can also indirectly harm water quality through runoff and
soil erosion during construction.
I am very pleased to hear that Oklahoma has done a
wonderful job of safeguarding your water sources and making
sure that your pipelines are cleanest and safest. I would think
that other States would like to have the ability to safeguard
their own water sources.
Ms. Watson, of the State agencies that commented on the
rule, nearly 75 percent expressed serious concerns about this
provision. Are you concerned about this narrower scope, and how
would this impact your State's ability to protect your water
resources?
Ms. Watson. Absolutely, Senator, and thank you for the
question. The rule would absolutely impact every State's
ability to protect water resources, so in Washington, it would
be Puget Sound and the Columbia River. In Florida, it would be
the Everglades, and in your lovely State, it is the Great
Lakes.
There is no question that there would be greater water
pollution, both as a result of the EPA rule and from Senate
Bill 1087, because it so drastically narrows the scope of what
can be considered.
As Governor Stitt was talking about what Oklahoma considers
groundwater standards and protections for endangered species,
looking at all State water quality requirements, all of those
things would be on the chopping block as a result of both the
bill and the rule. States would no longer be able to fully
protect against water pollution, and that is a big problem.
Senator Duckworth. Thank you. The stated purpose of EPA's
proposed rule is to increase the transparency and efficiency of
the 401 certification process and to promote timely review of
infrastructure projects. Yet the EPA is imposing new
administrative burdens on States as part of this rule,
requiring them to provide substantial amounts of new
information, including legal citations to the EPA just to
justify their decisions to grant certifications with
conditions, all under a new constraint application review
timeline.
Ms. Watson, considering the number of 401 certification
applications that the Washington Department of Ecology receives
and processes each year, how do you anticipate these new
requirements will affect the State's efficiency in processing
applications?
Ms. Watson. Actually, and ironically, Senator Duckworth, I
think what would happen is that you would actually see States
denying more 401 certifications. So, a rule that is intended to
streamline 401 certifications is going to have the unintended
consequence of resulting in more denials, because States can't
make decisions without full information. Then on top of that,
the States have to pad their decisions to convince the Federal
agency that the decision they have made is the correct one.
I think what you are going to find is more denials across
the board. A lot of States raised that in their comment letters
as well.
Senator Duckworth. Thank you. It is proposed that the EPA
list seven basic components that project proponents must
provide in order to constitute a complete certification request
and trigger review period. Do you agree that the EPA should
constrain the amount of information the project proponents must
provide to States?
Ms. Watson. Absolutely not, Senator. The problem is then
States will not have the information they need to determine
that water pollution will not result from the Federal project,
and the results will be unclean water, dirtier water, across
the country for our families and our communities.
Senator Duckworth. Thank you, and I actually want to say
that this is really about these particular changes to this one
rule. This is not a hearing about coal, in fact.
I am proud that Illinois just received a grant for clean
coal. I want America to own clean coal, carbon capture
sequestration technology. I want to sell American coal
overseas. This is actually about States' abilities to safeguard
their own water supply under this one particular rule, so let's
focus on that.
Thank you, Ms. Watson.
Senator Barrasso. Thank you, Senator Duckworth.
Senator Inhofe.
Senator Inhofe. Thank you, Mr. Chairman.
Governor Stitt, as you said in your testimony, Oklahoma has
been on the front lines in America's energy independence, and
it has worked. America leads the world in oil and gas
production, and we have done all this while reducing pollution
and leading the world with the cleanest drinking water. You've
already talked about that.
Let's talk about the economic impact of energy produced in
Oklahoma. One in five jobs are tied to oil and gas production,
with an average salary in this industry is over $94,000.
Governor Stitt, what would happen to Oklahoma's electricity and
energy prices if natural gas production ceased to exist?
Mr. Stitt. Thank you, Senator. It would be devastating to
our economy. Our energy costs, our electricity costs to the
consumer would more than double. We get 42 percent of our
electricity generation from natural gas. Without natural gas to
generate that baseload, when the winds don't blow, when the sun
doesn't shine, we would be without power. It would be
devastating to the electric grid.
Twenty-eight percent of our revenue comes from the oil and
gas industry, so countless numbers of jobs; it would just be
devastating to our economy.
Senator Inhofe. Let's talk about other States, how Oklahoma
can help lower costs of other States' electricity and energy
bills.
Mr. Stitt. With the amount of natural gas that we have, we
would love to be able to transport that to other States to help
with their energy costs, their generation. Natural gas is such
a clean burning fuel that we would love to be able to transport
that to other States and help with their low energy costs as
well.
Senator Inhofe. Hopefully in the same way that it has been
helping us for a long period of time.
Mr. Stitt. Absolutely. I just want to tell you one other
fact that I think is significant. Since 2011, Oklahoma has
reduced its emissions by nearly double the national average.
Sulfur dioxide is actually down by 56 percent, nitrogen oxide
is down by 69 percent, carbon dioxide is down by 37 percent in
Oklahoma, so we are definitely leading the way in our emissions
reductions.
Senator Inhofe. Yes, and we can't overlook the President's
policies and how successful they have been. A lot of our
colleagues often claim that Republicans don't care about the
environment. It couldn't be further from the truth, as you
pointed out.
If you are looking at since 1970, the combined emissions of
the six pollutants dropped by 74 percent while the economy grew
by 275 percent. Now, this is even more astonishing when you
look at since 2005, the U.S. energy related CO2
emissions fell by 14 percent, while global emissions increased
by over 20 percent. It is hardly believable.
Is there anything that you have not spoken to already on
what Oklahoma has done to protect water quality? Because we
have the best that is out there.
Mr. Stitt. I love the stats in our State, and I have
already outlined them about the pipeline capital of the world,
but yet the cleanest water, and the reduction. We are No. 1 in
several categories in reducing non-point and also nitrogen into
our water bodies. So, just excellent success stories in
Oklahoma.
Senator Inhofe. It really is. In fact, this morning, my
wife was pointing out one of the bottled water things. It came
from Tahlequah, Oklahoma.
Anyway, we are doing a great job. Let's try to share that
with others.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Inhofe.
Senator Cardin.
Senator Cardin. Well, thank you, Mr. Chairman.
I thank all three of our witnesses for their testimony.
This is certainly an area of great interest.
I spent 20 years of my life in the State legislature, 8 as
Speaker, so the ability of the States to work in partnership
with the Federal Government, federalism to me is very, very
essential and important to our system of government.
So Mr. Chairman, I first ask unanimous consent to submit
comment letters by the National Governors Association; the
Attorneys General of the States of Washington, New York,
California, Colorado, Connecticut, Delaware, Hawaii, Illinois,
Maine, Maryland, Michigan, Minnesota, New Jersey, New Mexico,
North Carolina, Oregon, Rhode Island, Vermont, Wisconsin, the
District of Columbia, the Commonwealth of Massachusetts,
Pennsylvania, Virginia; the Maryland Department of Environment
and the Waterkeepers Chesapeake, and the Chesapeake Bay
Foundation of concern about the Chairman's bill.
Senator Barrasso. Without objection. We accept them all.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
[The referenced comments from the Attorneys General are
available at https://oag.ca.gov/system/files/attachments/press-
docs/Multi-State%20Comment%20on%20WQ%20Certs.pdf]
Senator Cardin. I appreciate the Chairman's generosity in
allowing us to put that in the record, as he is always very
generous in listening to all views.
I want to follow up on Senator Duckworth's point about the
practical effects, if we restrict the powers of the State under
401 certifications. We just completed, in Maryland, a rather
lengthy process in regards to the Conowingo Dam and Exelon
Corporation. The Conowingo Dam is the second largest producer
of electricity, hydroelectricity power on the east coast of the
United States, a critically important power source for our
entire region.
But it is critical to what is happening with the quality of
the water in the Chesapeake Bay. It is not just the immediate
impact of what goes over the dam, but it is also the impact
that it has on upstream and downstream.
There was a lengthy process in negotiating with the
different stakeholders. On October 30th, Exelon and the State
of Maryland announced an agreement just short of the 12 month
limitation period.
There are pros and cons to the agreement that was reached.
It does provide for Exelon to contribute some resources; there
are some additional aspects in regard to how the migration of
fish are handled, so there are some different aspects to this.
There are a lot of stakeholders who felt that they should have
been more aggressive, but they were able to reach an agreement,
and it will help the Chesapeake Bay Program.
I don't think it would have been possible to do this in a
90 day period. Just too complicated to get done in a 90 day
period. So, I am just wondering why we would want to restrict
the State's leverage. The State had minimal leverage to start
off with because the dam had to operate; it was critically
important for electricity.
But they were able to utilize the different stakeholders
and come together for a productive conclusion. But if we narrow
the period of time, aren't we just making it virtually
impossible for the States to utilize this opportunity for clean
water?
The Chesapeake Bay Program is one I talk about frequently
in this Committee. I guess my Committee members might be a
little bit tired of listening to me, but since Senator
Duckworth brought up the Great Lakes, I had to bring up the
Chesapeake Bay.
The Bay Program was from the ground up. It started with the
States and local government and local stakeholders. It wasn't a
Federal Government mandated program; it was a State initiative
program, with States taking leadership on it.
Now, if we say the States can't use the tools that they
have in an effective manner, aren't we just handcuffing the
States' ability to get things done?
In this case, Ms. Watson, it would not have been possible
for the State just to deny the application, because we need the
electricity. But wouldn't we be compromising the ability of the
States to leverage for clean water in our region? The States, I
think, know the local circumstances better than the Federal
Government.
Ms. Watson. Yes, Senator, absolutely, and thank you for
your question. If you are limiting the amount of time that
States have to make decisions, you are limiting the ability
that States have to be able to reach those important deals, to
work with the project proponent, and make sure that a project
can go forward with the greatest possible protection for water.
That is the system that is been in place for the last 50 years.
It has worked very, very effectively.
Senator Cardin. Governors, if you wish to comment, fine.
You have to deal with a lot of different players in your
States. Ninety days for something as complicated as a multi-
jurisdictional body of water like the Chesapeake Bay is
virtually impossible.
Mr. Stitt. I don't think it would hamper your ability to go
after bad actors, come up with a settlement. The 60 day
proposal for Clean Water, our State does it in 60 days, so the
1 year timeline is just a reasonable time in scope. We think it
is very reasonable for this Committee and the EPA to revise
their rules.
The State of Minnesota has arguably more water than any
other State. Oklahoma actually has more manmade lakes and
shorelines. They are getting their permits done in 90 days, so
just the reasonability of this time in scope, I don't think
limits the States' ability to oversee water quality or go after
a bad actor.
Senator Cardin. It may be true for your State, but I would
put you in the seat of Governor Hogan of Maryland and all the
different stakeholders he has to deal with on these issues, and
other States that he has to deal with.
Thank you, Mr. Chairman.
Mr. Gordon. Mr. Chairman, if I might respond, Mr. Chairman
and Senator Cardin. I appreciate the fact that you brought this
back to the topic at hand, which is the proper use of the Clean
Water Act and Section 401.
As the former Chair of our State's independent
environmental quality council, which is charged with not only
making rules, but also is the first appeal body for any 401
permit that is granted in the State, I have experience with
this program. I have to say that Wyoming also has multi-State
jurisdictional issues. The Colorado River, for example,
involves almost all the Southwest. The Columbia River also has
several States on it.
We do our work within 60 days on average, but we are up to
a year. I don't think that is unreasonable, and I think this
particular Act actually does two things. One is, it talks about
the scope, and as we make the scope larger, of course the job
becomes longer. So, this is an attempt to, it seems to me,
bring well needed reform to considering water quality impacts
that are associated with a core permit or surface water issue.
Senator Cardin. I will just make a final comment. We are
not good examples here, but it is better if we have greater
consensus among the Governors on the reform before it has
brought here to Congress. I would like to have greater
consensus among all of us.
This Committee usually works in a very consensus way, but
it would have been better if we had more of the States in
agreement as to how these reforms should take place.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Cardin.
Before turning to Senator Capito, I am going to ask
unanimous consent to enter into the record a letter from the
Kansas Attorney General in support of today's hearing. Attorney
General Kevin Schmidt states that S. 1087--he said, ``would
prevent future uses of Section 401 to deny development of
constitutionally protected interstate commerce.''
I would also like to enter into the record a court filing
by eight States, including Oklahoma and Wyoming, who are
opposing Washington's denial in court.
[The referenced information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Barrasso. Senator Capito.
Senator Capito. Thank you, Mr. Chairman, and thank you for
scheduling the hearing on our bill, the Water Quality
Certification Improvement Act and efforts to improve
implementation of 401 broadly. I am very appreciative of that.
I would like to ask a process question first, Governor
Gordon. In the process, the State permits under the 401, but
once that permit is granted, there are all kinds of other
Federal agencies that then weigh in on the permit, like the
Corps, Fish and Wildlife. Can you flesh that out a little bit
for me? If you don't know the details, I can write it in a
written question.
Mr. Gordon. Thank you, Mr. Chairman and Senator Capito. You
are correct. Section 401 is specifically about water quality.
It is not intended to be a catch all for all environmental
regulation, and I think it is important that we keep--and I
think that is what the value of this particular draft bill is,
is to make sure that we keep it on topic of water quality.
Because as you point out, there are many other agencies that
weigh in beyond that, from the Corps of Engineers, to Fish and
Wildlife Service, and others. So it is an extensive process
that really has to be done both on a State and a Federal level.
Senator Capito. Right. So I would like to point out that
this legislation does not violate our States' rights to protect
the quality of their water. Everybody here on the dais and in
the audience and probably across this great country are just as
invested in water quality and clean drinking water as the next
person.
But what we found in a State like West Virginia is, we
exert our right under the 401, and we get sued by other
external groups to try to prevent the direction that we want to
go. Maybe that is not the direction that Washington State wants
to go, but it is the direction that we as West Virginians want
to go, and so that is very frustrating.
So I guess in the grand scheme of things, to both
Governors, does this legislation in any way prevent you from
continuing to ensure water quality consistent with the Clean
Water Act?
Mr. Gordon. Mr. Chairman, Senator Capito, I do not believe
it does. As I say, I have extensive experience with the State's
regulatory apparatus, having served on the environmental
quality council and having actually prosecuted several examples
of these permits being issued and being contested. Never did I
see the State's opportunity to regulate appropriately
interfered with.
As I have mentioned before, I think States have multiple
rights, and one of them is certainly the right to commerce.
That, I think, is something being precluded as we see the creep
of 401 to include other things.
Senator Capito. Governor Stitt, do you have a comment on
that?
Mr. Stitt. No, I do not think it limits our ability as a
State to regulate our water quality. I just want to address the
States' rights issue. Today, we are talking about pipelines,
and we are talking about exporting coal. But tomorrow, it may
be exporting agricultural goods, or it might be exporting beef.
I think that is exactly----
Senator Capito. We might be exporting energy generated by a
solar panel.
Mr. Stitt. It could be, that is correct. We could. I think
we have talked enough here, we are so proud of Oklahoma being
the pipeline capital of the world, and yet we have given you
the facts on our water quality. This is really an attack on
States' rights to be able to export their assets, and that is
where one State's rights, where does it impinge on another
State?
Senator Capito. Right. As Governor, obviously you have
stated the robust production of natural gas and oil. My State
of West Virginia is new to the natural oil. We are not new to
the natural gas business, but we are new to the proliferation
through the Marcellus and Utica Shale. I think it is rather
ironic that we have two major pipelines now stopped because of
permitting issues.
But we also look where we are situated in this country,
where we could be exporting our gas to New York State and to
the Northeast to replace what I think is one of the dirtiest
fuels around, and that is fuel oil. I am not sure that we are
into genuine arguments here in terms of how to weigh the cost
and benefit environmentally and also economically at the same
time.
I don't know, Governor, if you had a comment on that.
Mr. Stitt. I think that is exactly right. The hypocrisy of
having a Russian oil tanker sitting in the Boston Harbor,
transporting oil and natural gas----
Senator Capito. It had been to Tobago, too. Remember, it
came down from London to Tobago, and back up to Boston. How
much carbon footprint is that?
Mr. Stitt. That is right. Transporting oil and natural gas
through pipelines is the safest way to do it, versus truck or
train or obviously by ship. We love it. We think it is the
right thing, and this is just about time and scope and clarity
around 401. That is why we are supportive.
Senator Capito. Thank you.
Senator Barrasso. Thank you, Senator Capito.
Senator Merkley.
Senator Merkley. Thank you, Mr. Chairman.
Ms. Watson, how many years did it take for the design to be
developed for the Millennium Coal Terminal?
Ms. Watson. That was, of course, several years in the
making, Senator, and I am not sure that the designs are
completed yet.
Senator Merkley. So it took many, many years for the
company to figure out how it has going to address different
issues, design the details. In that context, do you feel it was
unreasonable for the State to only have a few days to be able
to evaluate a design that took many years, and as you have just
mentioned, isn't actually complete yet?
Ms. Watson. Yes, absolutely, Senator. One of the problems
in particular with that project is the company did not come
forward with sufficient information to show how it was going to
mitigate against water quality impacts, even at that point.
Senator Merkley. So you had to do an evaluation based on
not even the company willing to provide the information?
Ms. Watson. That is correct; that was the problem.
Senator Merkley. I understand you have had 11 quality based
reasons or concerns that you were expressing, and the company
never bothered to basically lay out how it was going to address
these 11 issues.
Ms. Watson. That is correct, Senator. The company did not
come forward with information showing how it would prevent
those water quality issues.
Senator Merkley. Governor Gordon, do you think it is
reasonable that you as a Governor should have to respond to the
company that is not going to give you the information that you
need?
Mr. Gordon. Thank you, Mr. Chairman, Senator Markey. I
think your question is----
Senator Merkley. Senator Markey isn't here, but I am here,
and I would like to hear your response.
Mr. Gordon. I am sorry. Pardon me.
Senator Barrasso. People confuse Markey and Merkley all the
time. It's like Crapo and Carper. We have the same thing.
[Laughter.]
Mr. Gordon. Senator Merkley, thank you. Your question is
about reasonableness of a short time scale.
Senator Merkley. No, it is trying to respond the way that
the power that has been delegated to your State when the
company hasn't provided the basic information that you need.
You don't need to give me a lengthy response. I would think
any Governor would be concerned. If you are not concerned, I
think many other Governors would be concerned about having to
respond when they haven't gotten the basic information.
Mr. Gordon. Senator Merkley, if I may respond.
Senator Merkley. You have to be very quick.
Mr. Gordon. I think the issue is that the Millennium Bulk
Terminal actually presented information from Centralia,
Washington, on Hanford Creek had exactly the same condition,
very similar, and presented their water quality information,
which was approved in 2016, 1 year before the prejudicial
dismissal.
Senator Merkley. Let me turn to an Oregon project that was
mentioned. That is the LNG potential terminal in Coos Bay,
Oregon.
The pipeline crosses 485 bodies of water, 7 lakes, 326
waterways, 150 wetlands. I can't see how the State of Oregon
can even get out to look at the plans for those locations in 60
days.
These things vary so much. You might have a permit that
requires crossing one creek, or near one lake. But in this
case, you are talking about, well, close to 500 bodies of
water, an extraordinarily complex undertaking.
Do you think 60 days is reasonable for the State to be able
to even get out and identify and evaluate the concerns for
water quality in all those locations?
Mr. Gordon. Is that question for me?
Senator Merkley. Yes.
Mr. Gordon. Sixty days is probably unreasonable. One year
is certainly reasonable, and I think with pre-consultation,
there is plenty of opportunity for getting that information
correct.
Senator Merkley. OK. Well, thank you for your perspective.
It looks very different to the State where the impacts are
going to be on the ground. Our citizens want a thorough
evaluation of the impacts.
We value our trout, we value our salmon, we value our
crabbing industry, we value our salmon industry. We value all
of our offshore activities that are affected, as well as our
instate waterways affected by the pipeline.
I was very struck by, when the law was initially written,
there was a bipartisan consensus, and it said it right in it,
that this recognizes the primary responsibility of the States.
This has all the earmarks of an assault on State rights with
the heavy hand of Federal Government and Federal lobbying. I
for one am going to stand up for the people of my State, defend
their waterways, and especially when the company won't even
provide the basic information needed to evaluate it.
These projects involve trenching, blasting, drilling,
damming, and 500 or so waterways impacted. There is no way that
that can be done in such a short period of time. There is no
way it can be done when the company doesn't even provide the
basic information to begin with.
So with that, I stand with the people of Oregon, who want
to defend their waterways, and it looks very different,
perhaps, than the perspective on your end of the project.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Merkley.
Senator Cramer.
Senator Cramer. Thank you, Mr. Chairman.
Thanks all of you. I have never confused for Senator
Merkley or Markey, although just now, someone could be confused
because I think what you are hearing from the two sides of the
dais get right to your point, Governor Gordon. We have to find
balance, identify scope and creep, and I think we are all
trying to do exactly that: find balance.
What is that balance between the State's right to its own
environmental protections and its resources, and a State's
right to access to interstate commerce and global commerce?
I come from North Dakota, a State like yours, where we are
landlocked, right in the center of the North American
continent, and are rich in resources that the country and the
world wants and needs. Striking the balance, I think is what
the bill does.
One of the things that strikes me, and I am just going to
opine for a minute, because listening to all this has been
fascinating and encouraging. I hope people watching it are
encouraged to see an intellectual discussion of peers and
experts about, what is the right balance, because I am
encouraged by it.
When Congress isn't very prescriptive, it allows the
bureaucracy to write the rules, and that almost never turns out
well, from my perspective. It doesn't protect States' rights
either to regulate themselves or their resources in order to
interstate commerce. So I appreciate us coming back to the
scope of 401, what that means, what that section provides in
terms of clarity or lack thereof in authority.
I am going to get back to the Millennium Project, because I
think it is an interesting one, because it has similar to
issues that we in North Dakota have had with the State of
Washington's zeal, if you will. So in regard to the Millennium
Project, the State of Washington denied the 401 permit, despite
the State's own EIS, which stated ``there would be no
unavoidable and significant adverse environmental impacts on
water quality.'' That is the State's EIS.
So it was not a surprise, in my view, considering that the
proposed terminal was only a few miles from the existing Port
of Longview, and that moves millions of tons of cargo, as you
know, each year. But I thought it interesting the State of
Washington proceeded to deny the water quality certification
under Section 401 for nine reasons that had nothing to do with
water quality. It doesn't mention water, and some of them, it
is a very far stretch.
So, Governors first, both of you oversee DEQs, both of you
have spoken a little bit to this, but when you get a DEQ
permit, and of course, you have great experience in this, or a
401 permit application, do you consider a lot of things outside
of water quality?
And maybe start with you, Governor Stitt, since you have
the background in this.
Mr. Stitt. We look, if there's endangered species, we look
at that. We look at the groundwater, we look at any kind of
impact. We look at the maps, we look at the scope of the
project. We make sure that it complies with the Clean Water Act
and our own State water standards. But we keep it to--we don't
try to play pick winners and losers, we try to keep with the
Clean Water Act, and move it forward.
Like I said, we do that in 60 days, so putting parameters
of 1 year, we think, is very reasonable to bring the scope,
which you said very well, back to the real issue of 401, which
is water quality in the State.
Senator Cramer. Governor Gordon.
Mr. Gordon. Mr. Chairman, Senator Cramer, I think you are
absolutely on point. As I was thinking about this and a similar
opportunity that Wyoming might be presented with, Wyoming is
the home of the largest wind farm in the country. That wind
farm is going to require a stormwater quality permit. The
customers for that wind farm are going to be all over the
Southwest, and including Oregon.
If we were to fancifully apply 401 as Washington did, we
might deny a stormwater quality permit with prejudice for the
wind farm with the idea of saying that we are not going to
supply customers in the West.
Of course, we wouldn't do that, because we would work with
the proponents of the wind farm to make sure that the water
quality impacts were addressed, only the water quality impacts.
Senator Cramer. With regard to moving oil, for example,
Governor Stitt, North Dakota is, of course, the second largest
oil producing State in the country, farther from markets, even,
than Oklahoma. But your neighbors, your port neighbors, include
Texas and Louisiana. Do you see a difference in how they apply
401 to, say, a State like Washington or Oregon that may apply
it differently? Does it make sense that we would have a little
more of a uniform application?
Mr. Stitt. We believe so. Obviously, there are pipelines
running through Oklahoma, from your State down to our State. We
are the southern leg of the Keystone. We have access to
Louisiana. We are building natural gas pipelines to transport
LNG down to the ports in Louisiana.
Obviously, we have direct access to the Houston refineries.
So I think Texas and Louisiana are interpreting the rule
properly. They are following their water standards just like we
ask every State to do. This is really about making sure that we
don't let certain States politicize this issue for their own
biases, and then harm the assets of one State. That is really
what it is about.
Senator Cramer. We think of it as weaponizing.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much.
Senator Van Hollen.
Senator Van Hollen. Thank you, all of you, for your
testimony here today.
Senator Cardin also comes from my State of Maryland, and he
covers some of the territory I mentioned.
We recently had a back and forth in Maryland with Exelon
Company regarding the Conowingo Dam, which is a dam on the
Susquehanna River. I believe that if the EPA knew proposed
regulations were in place or this legislation were in place,
the State of Maryland would not have been able to reach the
agreement it did with Exelon, putting aside the merits of that
particular agreement, because this legislation would have
undermined the State's leverage in that negotiation.
That is not just my view. That is also the view of the
State of Maryland's Secretary of Environment, Ben Grumbles,
Secretary of Environment to our Republican Governor, Governor
Larry Hogan. Secretary Grumbles says the Maryland Department of
Environment believes that Maryland's program could be further
hindered by the proposed rules, similarly, the legislation.
Ms. Watson, one of the issues that he raised, Secretary
Grumbles, regarded the change in the definition of discharge.
Could you talk about that in this context?
As Secretary Grumbles points out in this letter, CWA
Section 401 requires certification for any federally permitted
activity that may result in a discharge to navigable waters.
While it is well established that the term discharge is broader
than the term point source, the proposed rule limits State
certification review to discharges from a point source.
Could you elaborate on that concern and talk about how that
would impede States like the State of Maryland from taking
action to protect our water bodies, including the Chesapeake
Bay?
Ms. Watson. Yes. Thank you for your question, Senator. As
things stand now and as they have stood for the last 50 years,
States have been able to look at the entire federally permitted
activity to make sure that the activity will not cause water
pollution. The U.S. Supreme Court affirmed that understanding
in the 1994 case PUD No. 1.
So that has been the way States have implemented 401 for
the last 50 years. EPA is not proposing to do, and what this
legislation would do, is skinny down what States can actually
look at, so that you are looking at just a very narrow
discharge into a navigable water.
States couldn't protect their groundwater. States couldn't
protect from construction stormwater. States couldn't protect
with sedimentation standards, with erosion standards, for
Endangered Species Act standards, couldn't protect tribal
fishing access.
So there are all kinds of water quality protections that
are protected today and have been for the last 50 years that
would be on the chopping block as a result of this rule.
Senator Van Hollen. I appreciate that, and that is exactly
what gave rise to this concern.
Just to the Governors, you heard the concerns expressed.
Would you like to change the regulation so that you could no
longer use your permitting authority for groundwater
protection, sediment issues, and the other issues that were
raised by the other witness?
Mr. Gordon. Mr. Chairman, Senator, I don't believe that is
what is in front of us today. I would read that differently.
I can't speak to the case of Maryland. I am from Wyoming,
but having served in a regulatory capacity for the State prior
to being treasurer and now Governor, and having been a citizen
who has worked on these issues since the 1980s, I have to say I
don't see this as any diminishment of the States' opportunity
to regulate waters within its boundaries.
I do see it as a creep to take in issues like rail safety,
greenhouse gas emissions, noise, that are not pertinent to
water quality issues.
Senator Van Hollen. So you would have no objection then, to
amend the legislation in a way that made crystal clear that
nothing about this changed a State's ability to regulate
discharges? You would support that?
Mr. Gordon. Mr. Chairman, Senator, I believe the Clean
Water Act was about protecting water, and the 401 provision of
that Act allowed States to control the water within their
boundaries.
Senator Van Hollen. So you don't think that this new
proposal or this legislation impacts that in any way? You don't
believe that?
Mr. Gordon. I think it narrows it and recenters it on the
issue of water quality and allows States the opportunity to
regulate those.
Senator Van Hollen. So you disagree with the testimony. But
if clarification was required, then you would support that,
right, to not diminish that State's authority?
Mr. Gordon. I would, clarification, I believe, is in order.
I would hope it doesn't diminish the State's authority.
Senator Van Hollen. I mean, you can understand there's a
little confusion here, because States usually want to have
authority to fully protect their waters and their environment.
Yet this proposal essentially gives the Federal Government
ultimate veto and decisionmaking authority and ability to
second guess Governors, and you are OK with that, I take it?
Mr. Gordon. Mr. Chairman, Senator, I believe States have
authority to regulate waters within their boundaries. That I
stated emphatically over and over again. I also believe that
States have a constitutional right to conduct commerce, and if
other States use that tool, the 401 permit, to impede the
commerce of other States, then I think that is
unconstitutional.
Senator Van Hollen. There's obviously a fundamental
disagreement as to what this regulation and legislation does,
and it seems to me that if there's that much ambiguity, that
before we proceed in either way, we would want to make it very
clear what the impact is. I hope we can all agree on that.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you very much.
Senator Sullivan.
Senator Sullivan. Thank you, Mr. Chairman, and I want to
thank the witnesses for their testimony and being here on an
important issue, certainly an important issue.
In my State, the great State of Alaska, we have
successfully run a Section 401 program for quite some time.
But I want to go into the question, particularly for our
two Governors, who have a lot of experience in this area, where
there seems to be kind of a movement to focus on stopping
projects from moving forward not based on clean water, but
really trying to delay or kill a class of projects. In
particular, something that matters to my State, I think it
matters to your States, are pipelines.
Kind of ironic, because the modern day pipelines--Keystone
for example--created this hysteria when we all know that the
studies show that it is actually much more safe to move energy
products via pipeline than it is via rail. Yet for some reason,
certain States have really focused, not again on clean water
authority, but just a class of projects, pipelines, to kill
them.
Let me just give you examples I am sure you are familiar
with. The Constitution Pipeline in New York--prime example--
where the Governor of New York is impoverishing his own
citizens by delaying any ability to move natural gas across the
State. The U.S. Chamber estimated that the delays to that
project is close to $4 billion in economic output and close to
24,000 jobs. So, that seems, to me, an issue.
Similarly, in Massachusetts, the unwillingness to permit a
pipeline for natural gas has created the ironic situation
where, as opposed to people in New England having gas from
Americans, American gas, by American workers, they are
importing LNG from Russia, our geopolitical foe that trashes
the environment when they produce gas.
But there you have it, two examples of Section 401 that are
not focused at all, in my view, on protecting the water, but
some kind of fundamental, irrational, in my view, opposition to
a class of projects, in this case, pipelines.
Can you two, both the Governors, expand upon this, or just
give us any insights on how we should look to prevent this kind
of focusing on just projects themselves, a class of projects,
versus the intent, which is to make sure all States have clean
water and clean air?
In my State, we care more about our water and air than
anybody, than anybody in the EPA, anybody. And by the way, we
have some of the cleanest water and cleanest air in the world.
We care about that.
But this movement toward blocking things, it really hurt
the whole country, not just their own States. I think it is
something that Governors in particular can speak to, and I
would welcome your views on that, and how we can look at
Federal law to maybe prevent those kinds of approaches that
really, these Governors are harming their own citizens, but
they are harming the rest of the country as well.
Mr. Stitt. I totally agree with you. I think that was very,
very well said. First point I would like to add to that is that
Oklahoma is--you missed it, you weren't here earlier, but we
talked about we are the pipeline capital of the world. We have
more pipelines running through Oklahoma actually surrounding--
--
Senator Sullivan. And they are safe?
Mr. Stitt. And they are safe. And we have some of the
cleanest water, and I read those stats off earlier. It is the
safest way to transport oil and natural gas.
Senator Sullivan. Why do you think there is this reflexive
approach to stopping pipelines? The Keystone Pipeline that the
Obama administration delayed for 8 years killed countless,
thousands, tens of thousands of jobs. It just makes no sense.
Mr. Stitt. I think Oklahomans, or I think Americans need to
understand what happened with the Russian tanker that was
sitting in the Boston Harbor, trying to bring liquefied natural
gas from Russia, exporting our tax dollars and our jobs over
there. I think Americans need to understand what is happening.
Senator Sullivan. By the way, the Boston Globe did I think
a 3,000 page editorial, Mr. Chairman, I would like to get it
for the record here, which really went into this in a damning
way for the Massachusetts legislature and how irrational the
policy was.
Senator Barrasso. Without objection.
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Senator Sullivan. Governor, continue.
Mr. Stitt. I will read real quick our water quality and
some of our air quality facts in Oklahoma, because if pipelines
were the problem, these facts would not be accurate. We are No.
1 in the Nation in phosphorus load reduction in 2018 in our
water bodies. We are No. 3 in the Nation in nitrogen load
reduction in 2018. We are No. 1 in the Nation for non-point
source success stories with more water bodies delisted from the
impaired list of any other State.
Because of our natural gas generation, we are double the
national average in our reduction of emissions. Double the
national average. So, sulfur dioxide is down 56 percent since
2011, nitrogen oxide is down by 69 percent since 2011, carbon
dioxide is down 37 percent since 2011.
So really, the issue is we are weaponizing, we are talking
about, States are not talking about water quality, they are
talking about their hatred for fossil energy, and that is
really the issue. We need to bring time and scope around this
issue, so assets of some States are not infringed upon by
others.
Senator Sullivan. Governor, do you want to comment real
quick?
I know we are running out of time, and I apologize, Mr.
Chairman.
Mr. Gordon. No, thank you, Mr. Chairman, Senator. No, I
absolutely agree with my colleague from Oklahoma. This Act
really centers it back on water quality. That is the issue that
is at play here.
Your question really went to classes of actions. The
example that I gave before was really about if Wyoming were so
inclined to, say, look, our wildlife is very important, it is
going to affect our migration corridors, you are going to
affect our calving populations on various animals. We believe
that wind farms are an impediment to that, and the stormwater
quality permit that we are going to give is now therefore in
peril because of wildlife associated impacts. That has nothing
to do with water, but it is tantamount to using it to say, we
don't want wind development for our wildlife.
What I think this Act does is to recenter the conversation,
really, on water quality and the opportunity for States to
operate within those parameters in their own boundaries.
Senator Sullivan. Thank you.
Senator Barrasso. Thank you.
Before turning to Senator Carper, I would like to also
introduce for the record an editorial similar to the one that
you talked about, about the Boston Harbor. This was in
yesterday's Wall Street Journal, and it is called Cuomo's
Carbon Casualties, where they say the pipeline he vetoed,
Governor Cuomo vetoed, below New York Harbor, could reduce
annual CO2 emissions by the equivalent of 500,000
cars on the road. His gas embargo is raising State emissions.
Without objection I will introduce this into the record.
[The referenced information follows:]
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Senator Barrasso. Senator Carper.
Senator Carper. I want to again, welcome, it was very nice
meeting each of you. One of you, I have met previously, the
Governor of Wyoming.
But to Ms. Watson, Governor Gordon, and Governor Stitt,
thank you all for joining us today.
When I was privileged to be Governor of Delaware for 8
years, I used to love to testify before Congress. Delaware was
close by; it is an easy train ride. So I was an easy mark. The
Governors Association, nobody wanted to come in from Wyoming or
some other place, they would say, well, send Carper. I was
always happy to go. I hope it is a good experience for you, and
we welcome you.
I think and speak a lot as a recovering Governor. I
appreciate the opportunity here, especially from the three of
you, and then from States regarding how they feel about
proposals to alter State authorities under Section 401 of the
Clean Water Act.
I just want to thank our Governors for taking the time out
of your schedules to share your views with us on what is an
important topic, obviously, to your States, and I think to ours
as well.
I have a longer statement that I want to submit for the
record. But I would like to take a minute, if I could, to
reflect on the relationship between the Federal and State
governments when it comes to clean water. To be honest with
you, if I were a sitting Governor, instead of a recovering
Governor, I would be uneasy about the prospects of changing
that Federal-State relationship.
On the one hand, the current Administration, my colleagues,
on the other hand, on the other side of the dais, have great
confidence in States' abilities to protect waters in their
States, and want them to do more of it by making them
responsible for managing additional bodies of water, as the
proposed changes to the definitions of waters of the U.S. on
the Clean Water Act would require them to do.
However, when it comes to managing and maintaining the
quality of water, some suggest that the rights reserved to
States to protect water under the Clean Water Act should be
changed. I think this distorted interpretation of cooperative
federalism is not just ironic, it is actually pretty unpopular
with the majority of States.
I wonder if we are going to be able to reconcile that
fundamentally contradicting approach to States' rights. We will
see. But I am hopeful that today's hearing can shed some light
on that subject.
Next, I would just like to read, if I could, claims I think
made by our friends on the other side of the aisle, and I am
tempted to call them false claims, but I'll just say
questionable claims, and I will pull my punch. But the State of
Washington's action is about politics--this is a claim--that
the State of Washington's actions about politics has nothing to
do with clean water. The State of Washington's own
environmental impact study for the project found that there
would be no significant impacts to water quality. That is the
claim.
And here is a rebuttal. In its 401 submission, the
Millennium Bulk Project failed to show that it would adequately
mitigate for its water quality impacts. The environmental
impact study did not conclude that there would be no impacts to
water quality. Rather, the environmental impact study concluded
that if the company demonstrated that it could meet all water
quality requirements, then there would be no significant impact
to water. But the company failed to make that demonstration.
Mr. Chairman, I would ask unanimous consent to submit for
the record the actual 401 determination which makes absolutely
no reference to climate change and other impacts, just water
quality effects. I make that unanimous consent request.
Senator Barrasso. Without objection.
[The referenced information was not received at time of
print.]
Senator Carper. Thank you.
Here is another claim that I would characterize as
misleading. ``And the State of Washington has abused its
authority to block the export of coal mined in Wyoming, Utah,
Colorado, and Montana.''
The rebuttal to that from the State of Washington is the
following: ``The State of Washington denied the water quality
certification to the coal export terminal because it failed to
demonstrate reasonable assurance that water quality
requirements would be met.''
The project's proponent has appealed Washington's decision.
Every tribunal that has reviewed it has upheld Washington's
decision.
Mr. Chairman, I would ask unanimous consent to offer for
the record a letter sent to you and to Ranking Member, me,
Carper, on August 15th, 2018, from Maia Bellon, Director at
Washington Department of Ecology, which states, ``The facts of
this denial of the Millennium Coal Export Terminal are simple.
Millennium failed to meet existing water quality standards, and
further failed to provide any mitigation plan for the areas the
project would devastate, especially along the Columbia River.
To approve this permit under the circumstances would not only
have been irresponsible, it would have posed serious health
risks to impacted communities and the surrounding
environment.''
Senator Barrasso. Without objection.
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Senator Carper. Thank you, sir.
And finally, a question. This would be a question for our
Governors, Governor Gordon and Governor Stitt.
One of the most controversial pieces of the EPA's proposal
is that Federal agencies would be able to veto or override
State imposed water quality conditions. For the sake of
argument, let's say that a State is reviewing an application
for a hydroelectric dam, which could have serious impacts on
ecologically and economically important fish and species.
As a condition for the dam's 401 certification, the State
environment department could require the project to implement
fish passage measures to allow spawning fish to swim upstream.
Under this new rule, the Federal agency permitting or licensing
this project could decide this measure is too costly and veto
this condition.
And I would just ask a question of both of you, if I could,
as Governors of States whose recreational fishing industries
support, literally thousands--maybe tens of thousands--of jobs,
and provides billions of dollars to States' economies, would
you support such a Federal agency override of your efforts to
protect recreational fishing?
Governor Gordon. Want to take a shot at that?
Mr. Gordon. Thank you, Mr. Chairman, Senator Carper. I
would not support a Federal override. We are--and I am on the
record stating that I do not believe a Federal override is a
correct method.
Senator Carper. Thank you.
Governor Stitt.
Mr. Stitt. I would agree with that. We want certainty. I
think businesses want certainty, so we are looking at a time
and scope around this proposed rule change, which we agree on.
Senator Carper. All right.
Thank you both, thank you, all three of you.
[The prepared statement of Senator Carper follows:]
Statement of Hon. Thomas R. Carper,
U.S. Senator from the State of Delaware
Mr. Chairman, we are here today to examine legislation that would
restrict State authorities under Section 401 of the Clean Water Act.
As a former and now ``recovering'' Governor, I understand the
reasons a State would want to maximize the strength of its most
important industries. And so, I understand the motivations behind the
legislation you have authored, Mr. Chairman, as well as the statements
of the two Governors sitting before us today.
My hope is that all of us on both sides of the dais will similarly
consider the concerns raised about both this legislation and EPA's
proposed rule by the Governors, attorneys general, and environmental
agencies of many other States, including both red and blue States.
As I consider these reforms, some questions come to mind that are
partly a legacy of my experience as a Governor:
In addressing the needs of the industries in one State, what
effect would the proposed cure have on neighboring States?
Do other States perceive the same problems the Governors here
today have articulated?
How do the 45 tribes authorized to review permit applications on
their lands feel about the proposed solutions?
I ask these questions because in my State of Delaware, decisions
made in the best interest of industries and States elsewhere have had
dramatic effects on the environment, public health, and our quality of
life.
As I have described many times in this Committee, Delaware sits at
the end of America's tailpipe. More than 90 percent of our State's air
pollution flows from power plants upwind of our State.
Despite many appeals from Delaware and other downwind States,
unfortunately, neither the responsible States nor EPA have chosen to
control those emissions.
While I understand the economic motivations of those States,
Delawareans are forced to endure poorer health and higher costs while
upwind polluters enjoy economic benefit. That is not right.
I would just ask my colleagues and our witnesses to imagine how
they would feel if someone wanted to locate a power plant in the
headwaters of that State's iconic cold water trout stream? Or perhaps a
dam that would harm water quality, and as a consequence, critical
wildlife and fisheries habitats? Would you want your State to have a
say in whether and how that activity is conducted in your State?
How would you feel about a Federal agency in Washington, DC,
overruling the judgment of your own State officials regarding local
impacts? Would you care if a Federal agency dismissed your concerns,
told you that you had functionally waived your right to assess a
project, and stormed ahead with a project that local citizens opposed
because of local adverse impacts?
These questions may seem hypothetical, but actually, they are the
very real questions that Governors will face if EPA's proposed
revisions to the 401 certification process become the law of the land.
Indeed, they are the questions that Governors, attorneys general, State
environmental directors, and a host of other concerned citizens are
already facing now as they consider the proposed regulation.
As a recovering Governor, I wonder what other States and tribes
feel about the proposed changes. Apparently, President Trump was also
interested in State and tribal input.
In his April 16, 2019, Executive Order on Promoting Energy
Infrastructure and Economic Growth, the President specifically called
on EPA to, ``consult with States, tribes, and relevant executive
departments and agencies in reviewing section 401 of the Clean Water
Act and EPA's regulations and guidance.''
As it turns out, however, States and tribes were either not
effectively consulted or they were blatantly ignored. And from our
analysis of the comments received on EPA's proposed 401 certification
rule, States and tribes across the board really do not like it.
More specifically, as this chart shows, 29 State environmental
agencies and the District of Columbia expressed significant concerns
with the proposed change to their authorities. These are not just
Washington, New York, and others you might consider the usual suspects.
As you can see here, Utah, South Dakota, Idaho, Arkansas, and others
expressed substantial and heartfelt concern about the regulation.
As you can see in this other chart, tribes are nearly unanimously
opposed to what the Administration has proposed.
While I can't do justice to all the concerns the States and tribes
expressed, a comment from the State of South Dakota Department of
Environment and Natural Resources struck me:
``Simply put, these proposed changes supplant the cooperative
federalism to protect water quality that has existed since
Congress passed the Federal Clean Water Act. These changes are
a poorly disguised effort by the Federal Government to severely
limit the States' and tribes' efforts to enforce their water
quality standards and to impose appropriate conditions on
federally issued permits.''
Mr. Chairman, I understand the desire and mandate we have as
elected officials to take care of our people and economies in our
States.
What I do not understand is why, in the process, we have to
undermine other States' abilities to take care of themselves, their own
citizens' welfare, their own natural environments, and their own local
economic interests. That is what is proposed here. Not only is it
wrong, it's also not our only option to address whatever real concerns
these players have.
In reality, denials of certifications by States are exceedingly
rare. If one digs deeply enough into most of those denials, many of
them occurred because the applicant did not give State officials the
information necessary to determine whether the project would compromise
the State's water quality and comply with State laws.
As many States suggested in their comments on the proposed EPA
rule, early engagement with State agencies and an honest portrayal of
projects and their impacts makes it possible to resolve problems and
secure certification. This is the way it works in virtually every one
of the thousands of certifications that States provide each year.
Granted, there are major projects that are so large, so disruptive,
and so complex that they may never be appropriate for the environment
for which they are proposed. A good example was a proposed deep water
coal port in my State of Delaware that would have displaced some of the
most beautiful and ecologically productive coastal marshes you will
find anywhere. For very good reasons, our State determined that this
location was not the right place for that kind of activity.
Any and every State should have the right to make that
determination for itself, accountable to its own citizens. That was the
motivation of Congress when it gave States the important tool of 401
certifications in the Clean Water Act--an authority that breathes life
into the Act's promise of cooperative federalism. That, provided
minimum Federal standards are met, States are in the best position to
determine how to take care of their environments--much less their
economies.
As much as I know you, the majority witnesses, and some of my
colleagues around this dais believe your legislation and EPA's proposed
401 certification regulation are a good thing, I--and a majority of
States in this union--disagree.
We are debating a huge and dangerous solution to a very narrow
problem affecting a very minute part of our society.
This bill and that regulation are not the answer.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Carper.
Before turning to Senator Gillibrand, I would first like to
submit for the record a unanimous consent request to enter into
the record a brief filed by the Crow Nation and the National
Tribal Energy Association, and a number of associations,
opposing the State of Washington's denial of the Millennium
Bulk Terminal Project.
I would also like to enter into the record the Millennium
Bulk's response to the State of Washington's 2018 letter to the
Committee, which we have just introduced into the record.
Without objection, that will also be submitted.
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Senator Barrasso. Senator Gillibrand.
Senator Gillibrand. Thank you, Mr. Chairman, and Mr.
Ranking Member.
We hear a lot about States' rights, particularly from the
current Administration. We are told that we should be leaving
environmental regulations to the States, that they are in the
best position to determine how to protect their environment and
natural resources.
We are also told that States--not the Federal Government--
should have the primary jurisdiction over regulating the
majority of our water bodies, and that the Clean Water Act
should be restricted to just traditionally navigable waters.
But not surprisingly, when States use the authority legally
delegated to them under the Clean Water Act to protect water
quality, we hear from those same people that those States have
somehow abused their power and must be reined in. That is
absurd, and it undermines the foundation principle of
cooperative federalism enshrined in the Clean Water Act.
It seems that some policymakers are willing to throw the
baby out with the bathwater and restrict the rights of all
States under the Clean Water Act, simply because they disagree
with the lawful decision of some States--including my own--to
deny a very small number of permits.
The Trump administration and Administrator Wheeler have
explicitly said that they are proposing changes to the Section
401 process because of New York's gas blockade. The
Administration has cited three high profile denials by the
State of water quality permits for interstate natural gas
pipelines as an example of unnecessary delays.
However, in each of those instances, the State's denial was
based on relevant water quality standards and subject to
judicial review. Additionally, New York State annually receives
more than 4,000 applications for Section 401 water quality
certifications, and on average, denies approximately 8. That
means the State is approving more than 99 percent of the
applications it receives every year on time. Hardly the picture
of obstruction or an out of control State regulator.
So what then is this really about? It is about removing a
procedural block to establishing a more industry friendly
regulatory process that gets meddlesome State regulators out of
the way so that special interests can build what they want,
where they want, even if it means harming water quality and
running roughshod over principles of federalism they claim to
support. This is bad policy, it is short sighted, and could
have very damaging impacts in our States.
With that, Ms. Watson, I have a couple questions for you.
Under the Section 401 process, States can apply conditions on
Federal permits and licenses to ensure that projects meet
applicable State water quality requirements. However, the Trump
administration's proposed rule would restrict the types of
conditions that States can set and give Federal permitting
agencies the authority to veto them.
Could you describe the types of conditions that States
might impose on a project that would not otherwise be included
on a Federal permit? What impact will this have on wetlands,
streams, and other water bodies impacted by the construction or
operation of a project?
Ms. Watson. So there are a lot of examples of conditions
that States might include in 401 certifications to protect
water quality that wouldn't otherwise be covered by the Federal
permit example. So that would be protection of groundwater,
sedimentation standards, erosion standards, best management
practices for stormwater, protections for endangered species.
These are things that get added through the 401 certification
process that have routinely been included in Federal permits
for the last 50 years without a problem.
These are State based water quality requirements, and what
is being proposed through the bill and through EPA's rule would
upend that 50 year State control of water pollution in their
States.
Senator Gillibrand. What are the practical implications of
reducing the amount of time that States have to make Section
401 decisions? Will this result in more project approvals or
improve water quality protection?
Ms. Watson. It will not result in more water quality
approvals. It will actually have the unintended consequence of
resulting in more denials because States will not have
sufficient time to make decisions.
But on top of that, EPA is limiting the amount of
information that States can consider. So States won't have the
tools and the information necessary to be able to, in fact,
protect water quality within their States.
Senator Gillibrand. Thank you.
I just wanted to respond to something our other witnesses
said. Governor Gordon, I recognize that you want to be able to
have the best economy for Wyoming. But the truth is, if you try
to remove New York's regulatory authority, you will affect our
economy, because our economy is based on clean air and clean
water. We have agriculture all across New York that relies on
clean air and clean water. We have a tourism industry that is
very valuable.
We have New York City, which is 8 million people, that gets
clean water from a watershed, unfiltered water. If we had to
filter that water, it would cost us tens of billions of
dollars.
So I just want to be clear. We know how to protect our
State and our economy, and I would just suggest that you would
give deference to our Governor in the way that our Governor
would give deference to you in understanding what is best for
your economy.
And then Governor Stitt, I just was offended by your
statements that you know how to have good water in Oklahoma. I
would just like unanimous consent to submit four articles for
the record of how challenged your water quality actually is in
Oklahoma, which I am sure you are aware. I am grateful that you
have made progress in eliminating some contaminants, and that
is a good thing, but it may be because you are starting from a
worse off place.
Thank you, Mr. Chairman.
Senator Barrasso. Thank you, Senator Gillibrand.
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Senator Barrasso. Would any of you like to respond to the
comments? And then we will just give each of you a chance to
make a final statement as we wrap up the hearings.
Mr. Gordon. Mr. Chairman, thank you for that opportunity.
With apologies, Ranking Member, I think I have forgotten to
recognize you the last couple of times. My apologies for that.
Senator Gillibrand, thank you very much for your comments.
I think we live in a Nation, that, going back to our
Constitution, always has recognized the importance of the
Federalist principles. If memory serves, one of the big
arguments in the original documentation was whether New York
would actually expand west beyond its normal boundaries that we
perceive today.
So I very much appreciate it. I have a daughter who
actually is a beneficiary of that great, clean water.
Wyoming has the largest amount of class one water in the
country--excuse me, class one air in the country, and yet we
are affected continually by pollution from Seattle, from
Portland, from San Francisco, et cetera. I think we have to
recognize these principles, and I think my point here is that
together, focusing on water quality and our ability to regulate
within the State, that is critical.
When that is used as an impediment to commerce, that is a
constitutional issue, and I think this particular Act that is
contemplated actually recenters that conversation on what the
original intent of the 1972 law was, which was to protect water
quality.
Thank you very much.
Senator Barrasso. Governor Stitt, and then Ms. Watson.
Mr. Stitt. Thank you, Chairman.
I think, Senator, if the American people, if you think that
the American people don't know really what is happening when
your Governor denies permits based on 401 water quality on
Earth Day, on pipeline development, I think American people see
right through that.
I think this is about a hatred of the fossil fuel industry.
It has nothing to do with water quality.
Senator Barrasso. Ms. Watson, any final comment?
Thank you.
Well, I thank all of you. We had 16 Senators show up for
this hearing today, 11 had a chance to ask questions, 5 due to
other commitments had to leave before it was their turn, so
this has quite a bit of interest. Some of the other members may
submit written questions for part of the record.
I am very grateful for all of you being here.
The hearing record will remain open for an additional 2
weeks, but I want to thank all of our witnesses for their
testimony today on this very important topic, and the hearing
is adjourned.
Senator Carper. Mr. Chairman, before we adjourn, could I
just make several unanimous consent requests, please? I want to
submit for the record a letter dated November 18th from the
Council of State Governments.
Senator Barrasso. Without objection.
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print.]
Senator Carper. Another from the State of Washington, dated
September 26th, 2017.
Senator Barrasso. Without objection.
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Senator Carper. A third from the American Rivers Connect
the U.S. to the letter dated November 18th, 2019.
Senator Barrasso. Without objection.
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Senator Carper. A fourth from the Appalachian Trail
Conservancy dated November 19th this year.
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Senator Carper. And the last thing I want to say is, I
think all of us are guided by the Golden Rule, whether we think
about it or not. We should treat one another the same. I always
try to put myself in the shoes of other people and say, how
would I want to be treated if I were in their case, right?
I know how important the economy of my State is to me, and
I am sure the same is true for our Chairman.
I live in a little State, we are the 49th largest State, so
we are a small State.
My State is sinking, and the seas around us are rising. It
is, as you might imagine, a huge concern for us.
There's widespread belief that one of the reasons why it
has happening--I am a native of West Virginia; my dad was a
coal miner for a while. My neighbors were coal miners, so we
have to understand what it has like to be in the fossil fuel
industry, if you will.
But I would just ask that we try to put ourselves in your
shoes as you attempt to govern your States, but I want you to
put yourself in our shoes. When I was Governor of Delaware, I
could shut down my State's economy, literally get every car or
vehicle off the road, shut down every business, we would still
have been out of compliance for clean air.
So just keep that in mind as we go forward, and again,
thank you all for being here.
Senator Barrasso. Thank you, Senator Carper, and with that,
thank you again for being here; the hearing is adjourned.
[Whereupon, at 11:49 a.m., the hearing was concluded.]
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