[House Report 118-10]
[From the U.S. Government Publishing Office]


118th Congress    }                                        {    Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                        {    118-10

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



 
 WATER QUALITY CERTIFICATION AND ENERGY PROJECT IMPROVEMENT ACT OF 2023

                                _______
                                

 March 17, 2023.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Graves of Missouri, from the Committee on Transportation and 
                Infrastructure, submitted the following

                              R E P O R T

                             together with

                     MINORITY AND ADDITIONAL VIEWS

                        [To accompany H.R. 1152]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 1152) to amend the Federal Water 
Pollution Control Act to make changes with respect to water 
quality certification, and for other purposes, having 
considered the same, reports favorably thereon without 
amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose of Legislation...........................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     4
Legislative History and Consideration............................     4
Committee Votes..................................................     5
Committee Oversight Findings and Recommendations.................     7
New Budget Authority and Tax Expenditures........................     7
Congressional Budget Office Cost Estimate........................     7
Performance Goals and Objectives.................................     8
Duplication of Federal Programs..................................     8
Congressional Earmarks, Limited Tax Benefits, and Limited Tariff 
  Benefits.......................................................     8
Federal Mandates Statement.......................................     8
Preemption Clarification.........................................     8
Advisory Committee Statement.....................................     8
Applicability to Legislative Branch..............................     8
Section-by-Section Analysis of the Legislation...................     9
Changes in Existing Law Made by the Bill, as Reported............     9
Minority Views...................................................    10
Additional Views.................................................    13

                         PURPOSE OF LEGISLATION

    The purpose of H.R. 1152, the ``Water Quality Certification 
and Energy Project Improvement Act'', is to promote the 
development of the Nation's infrastructure by streamlining the 
permitting process under Section 401 of the Clean Water Act 
(CWA) and clarifying Section 401's focus on CWA water quality.

                  BACKGROUND AND NEED FOR LEGISLATION

    Section 401 of the CWA requires applicants seeking a 
Federal permit or license for an activity that may result in 
discharge into ``navigable waters'' to obtain a water quality 
certification from the state or tribe with jurisdiction of the 
area of possible discharge.\1\ The certification demonstrates 
that any discharge will comply with enumerated water quality 
standard provisions in the CWA and ``any other appropriate 
requirement'' of state or Tribal laws.\2\ As such, Section 401 
allows certifying authorities to grant, grant with conditions, 
deny, or waive certification of proposed Federal licenses and 
permits based on water quality standards.\3\
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    \1\CWA, Pub. L. No. 92-500, Sec. 401, 86 Stat. 816.
    \2\Id. Sec. Sec. 301-307.
    \3\Id. Sec. 401; see also Laura Gatz & Kate R. Bowers, Cong. Rsch. 
Serv., R46615, Clean Water Act Section 401: Overview and Recent 
Developments (2022), available at https://crsreports.congress.gov/
product/pdf/R/R46615 [hereinafter CWA Section 401: Overview and Recent 
Developments].
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    Water quality certifications, as laid out in Section 401, 
are necessary for ``any activity that (1) requires a federal 
license or permit and (2) may result in a discharge into waters 
of the United States,''\4\ including projects under the 
Sections 402 and 404 of the CWA, the Rivers and Harbors Act, as 
well as from the Federal Energy Regulatory Commission 
(FERC).\5\ Section 402 governs projects falling under the 
National Pollutant Discharge Elimination System (NPDES), and 
Section 404 governs projects for release of dredged or fill 
material.\6\ Common projects requiring Section 401 water 
quality certifications include hydropower facilities, natural 
gas pipelines and export terminals, water resources projects, 
mining projects, and residential and commercial development.\7\
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    \4\CWA Section 401: Overview and Recent Developments, supra note 3, 
at 3.
    \5\Id.
    \6\CWA. Sec. Sec. 401-404.
    \7\CWA Section 401: Overview and Recent Developments, supra note 3.
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    In recent years, some stakeholders have become concerned 
that states have been misusing Section 401 jurisdiction to 
prevent certain important energy projects from obtaining 
certification and halting their progress in construction.\8\ 
Despite Congressional intent and CWA language for Section 401 
to focus on water quality standards, some states have denied 
certification applications by citing non-water quality 
standards, such as noise and greenhouse gas emissions, 
particularly for pipelines and export terminals.\9\
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    \8\See, e.g., Letter from Int'l Union of Operating Engineers to 
Reps. David Rouzer & Garret Graves (Feb. 28, 2023) (on file with the 
Comm.).
    \9\Id.; see also CWA Section 401: Overview and Recent Developments, 
supra note 3, at 12-14.
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    For example, when the state of Washington denied 
certification to a coal export terminal in 2017, it did not 
cite water quality standards as a reason for denial, instead 
claiming adverse impacts on air quality, vehicle 
transportation, noise, community resources, rail 
transportation, rail safety, vessel transportation, and 
cultural and tribal resources.\10\
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    \10\CWA Section 401: Overview and Recent Developments, supra note 
3, at 6.
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    While the CWA puts a one-year maximum on a state 
certification decision, some stakeholders have noted the 
potential for states to toll or otherwise administratively 
extend this deadline.\11\ The statute initiates the one-year 
timeline ``after receipt of such request,''\12\ which has led 
to mixed interpretations. States assert that it is within their 
authority to define the contents of a complete request for 
certification, as well as to request clarifications, 
corrections, or additional information from an applicant 
necessary for comprehensive review of the project by the 
State.\13\ However, these interpretations have led states to 
act beyond the one-year time limit, causing project 
certification applications to drag on beyond the timeframe laid 
out in the CWA.\14\ One stakeholder described a case in New 
York where the state ``repeatedly moved the goalposts on what 
it would deem satisfactory''\15\ on a project application which 
had a de facto effect of extending the review timeline beyond 
one year.\16\ This example also demonstrates the need to ensure 
states have clear and transparent standards for applicants.
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    \11\Comment Letter from Marty Durbin, President, Global Energy 
Institute, U.S. Chamber of Com., Ross Eisenberg, Vice President of 
Energy and Res. Policy, National Ass'n of Mfrs., & Toby Mack, President 
& CEO, Energy Equip. and Infrastructure All. to Andrew Wheeler, 
Administrator, Environmental Protection Agency (Oct. 21, 2019), 
available at https://downloads.regulations.gov/EPA-HQ-OW-2019-0405-
0878/attachment_1.pdf.
    \12\CWA Sec. 401.
    \13\See, e.g., Letter from States of Cal., N.Y., & Wash. to 
Chairman Sam Graves (Feb. 28, 2023) (on file with the Comm.).
    \14\See CWA Section 401: Overview and Recent Developments, supra 
note 3 at 8-11.
    \15\Letter from Competitive Enterprise Institute to Environmental 
Protection Agency (Oct. 21, 2023), available at https://
downloads.regulations.gov/EPA-HQ-OW-2019-0405-0890/attachment_1.pdf.
    \16\Id.
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    In some cases, states are looking far afield from the 
immediate effect of the project. For instance, in its denial of 
certification to a pipeline project in 2019, the State of New 
York stated ``. . . the Project would result in greenhouse gas 
(``GHG'') emissions, which cause climate change and thus 
indirectly impact water and coastal resources, including from 
the construction and operation of the Project, and from 
reasonably foreseeable upstream and downstream GHG 
emissions.''\17\ In 2020, the State of New York submitted a 
subsequent denial of certification for similar reasons.\18\ 
However, FERC's final environmental impact statement found that 
any environmental impacts ``would be temporary and occur during 
construction,''\19\ and that all ``Project effects would be 
reduced to less-than-significant levels''\20\ under the 
project's avoidance, minimization, and mitigation plan.\21\
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    \17\See Notice of Denial of Water Quality Certification Letter from 
Daniel Whitehead, Dir., Div. of Environmental Permits, N.Y. State Dep't 
of Environmental Conservation, to Joseph Dean, Transcon. Gas Pipe Line 
Co., LLC, (May 15, 2019), available at https://www.dec.ny.gov/docs/
administration_pdf/nodtgp.pdf.
    \18\See CWA Section 401: Overview and Recent Developments, supra 
note 3 (referencing Notice of Denial of Water Quality Certification 
Letter from Daniel Whitehead, Div. of Environmental Permits, N.Y. State 
Dep't of Environmental Conservation to Joseph Dean, Transcon. Gas 
Pipeline Co., LLC (May 15, 2020), available at https://www.dec.ny.gov/
docs/permits_ej_
operations_pdf/nesewqcdenial05152020.pdf#page=3).
    \19\FERC, Northeast Supply Enhancement Project: Final Environmental 
Impact Statement (2019), available at FERC, Northeast Supply 
Enhancement Project: Final Environmental Impact Statement (2019), 
available at https://www.ferc.gov/sites/default/files/2020-05/part-
1.pdf./2020-05/part-1.pdf.
    \20\Id.
    \21\Id.
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                                HEARINGS

    For the purposes of rule XIII, clause 3(c)(6)(A) of the 
118th Congress the following hearings were used to develop or 
consider H.R. 1152:
    On Wednesday, February 1, 2023, the Committee on 
Transportation and Infrastructure held a hearing entitled ``The 
State of Transportation Infrastructure and Supply Chain 
Challenges.'' The hearing provided an opportunity for Members 
of the Committee to discuss the current state of our Nation's 
transportation infrastructure, the implementation of the 
Infrastructure Investment and Jobs Act (IIJA, P.L. 117-58), and 
receive updates on North American supply chain challenges. 
Members received testimony from Mr. Chris Spear, President and 
Chief Executive Officer at American Trucking Associations; Mr. 
Ian Jefferies, President and Chief Executive Officer at the 
Association of American Railroads (AAR); Mr. Jeff Firth, 
President of Hamilton Construction on behalf of Associated 
General Contractors of America (AGC); Mr. Roger Guenther, 
Executive Director, Port Houston, and Mr. Greg Regan, President 
of the Transportation Trades Department, AFL-CIO (TTD). The 
witnesses testified about the need to address supply chain 
issues, including varying permitting issues.
    On February 8, 2023, the Subcommittee on Water Resources 
and Environment held a hearing titled, ``Stakeholder 
Perspectives on the Impacts of the Biden Administration's 
Waters of the United States (WOTUS) Rule.'' At the hearing 
Members received testimony from Mr. Garrett Hawkins, President, 
Missouri Farm Bureau, Ms. Alicia Huey, Chairman, National 
Association of Home Builders, Mr. Mark Williams, Environmental 
Manager, Luck Companies, on behalf of National Stone, Sand & 
Gravel Association, Ms. Susan Parker Bodine, Partner, Earth & 
Water Law LLC, and Mr. Dave Owen, Professor of Law and Faculty 
Director of Scholarly Publications, UC College of the Law, San 
Francisco. This hearing examined the rule from the EPA and 
Corps redefining the term ``waters of the United States,'' 
under the CWA, and the regulatory impact of the rule on 
interested stakeholders. During this hearing, witnesses also 
broadly discussed the need for permitting and regulatory reform 
under the CWA.

                 LEGISLATIVE HISTORY AND CONSIDERATION

    H.R. 1152, the ``Water Quality Certification and Energy 
Project Improvement Act,'' was introduced in the United States 
House of Representatives on February 24, 2023, by Mr. Rouzer of 
North Carolina and Mr. Graves of Louisiana and referred to the 
Committee on Transportation and Infrastructure. Within the 
Committee on Transportation and Infrastructure, H.R. 1152 was 
referred to the Subcommittee on Water Resources and 
Environment. The Subcommittee on Water Resources and 
Environment was discharged from further consideration of H.R. 
1152 on February 28, 2023.
    The Committee considered H.R. 1152 on February 28, 2023, 
and ordered the measure to be reported to the House with a 
favorable recommendation, without amendment, by voice vote.
    The following amendments were offered:
    An amendment to H.R. 1152 offered by Mr. Graves of 
Louisiana (#1); was WITHDRAWN.
    Add at the end the following: Sec. 3. Interim Process for 
Expired Federal General Permits.
    An amendment to H.R. 1152 offered by Mrs. Sykes (#2); was 
NOT AGREED TO by a recorded vote of 26 yeas and 34 nays (Roll 
Call Vote 002).
    Page 2, strike lines 2 through 6. Beginning on page 4, 
strike line 21 and all that follows through page 5, line 8, and 
insert the following: (ii) in the second sentence, by striking 
``applicable effluent limitations or other limitations or other 
water quality requirements'' and inserting ``an applicable 
provision of section 301, 302, 303, 306, or 307''; and 
Beginning on page 5, strike line 23 and all that follows 
through page 6, line 6, and insert the following: ``(e) For 
purposes of this section, the applicable provisions of section 
301, 302, 303, 306, and 307 are- ``(1) any effluent limitations 
and other limitations, and monitoring requirements necessary to 
assure that any applicant for a Federal License or permit will 
comply with any applicable effluent limitations and other 
limitations, under section 301 or 302, standard of performance 
under section 306, or prohibition, effluent standard, or 
pretreatment standard under section 307; and ``(2) any other 
appropriate requirement of State law set forth in such 
certification that the State determines necessary to support 
water quality in the State or the designated use or uses of 
navigable waters in the State.''
    An amendment to H.R. 1152 offered by Mr. Stauber (#3); was 
WITHDRAWN.
    Page 3, after line 21, insert the following: (iii) in the 
third sentence, by inserting before the period ``within a 
timeframe agreed upon between such State and the applicant''.
    An amendment to H.R. 1152, offered by Mr. Stauber (#4); was 
WITHDRAWN.
    At the end of the bill, add the following: Sec. __. Veto 
Authority Update. Section 404 (c) of the Clean Water Act (33 
U.S.C. 1344 (c)) is amended in the second sentence by striking 
``Secretary.'' And inserting ``Secretary, Secretary of Defense, 
Secretary of Commerce, and Secretary of the Interior to 
determine whether there are any materials on the Critical 
Minerals list, materials needed for grid security, or materials 
needed for national defense.''
    An amendment to H.R. 1152, offered by Mr. Huffman, (#5); 
was NOT AGREED TO by a recorded vote of 26 yeas and 34 nays 
(Roll Call Vote 003).
    Add at the end the following: Sec. 3. No Effect on Tribal 
Rights. Nothing in this Act, or the amendments made by this 
Act, shall be construed to affect any Tribal rights or 
authorities under the Federal Water Pollution Control Act, 
including any review by a Tribal Government of a discharge or 
activity under a Federal permit in order to protect treaty 
rights, including water rights, fishing rights, and cultural 
resources.

                            COMMITTEE VOTES

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires each committee report to include the 
total number of votes cast for and against on each record vote 
on a motion to report and on any amendment offered to the 
measure or matter, and the names of those members voting for 
and against.

Committee on Transportation and Infrastructure Roll Call Vote No. 002

    On: Agreeing to amendment #2 offered by Mrs. Sykes.
    Not Agreed to: 26 yeas and 34 nays.

----------------------------------------------------------------------------------------------------------------
                     Member                           Vote                    Member                    Vote
----------------------------------------------------------------------------------------------------------------
Mr. Graves of MO................................          Nay   Mr. Larsen of WA..................          Yea
Mr. Crawford....................................          Nay   Ms. Norton........................          Yea
Mr. Webster of FL...............................          Nay   Mrs. Napolitano...................          Yea
Mr. Massie......................................          Nay   Mr. Cohen.........................          Yea
Mr. Perry.......................................          Nay   Mr. Garamendi.....................          Yea
Mr. Babin.......................................          Nay   Mr. Johnson of GA.................          Yea
Mr. Graves of LA................................          Nay   Mr. Carson........................          Yea
Mr. Rouzer......................................          Nay   Ms. Titus.........................          Yea
Mr. Bost........................................          Nay   Mr. Huffman.......................          Yea
Mr. LaMalfa.....................................          Nay   Ms. Brownley......................          Yea
Mr. Westerman...................................          Nay   Ms. Wilson of FL..................  ............
Mr. Mast........................................  ............  Mr. Payne.........................          Yea
Mrs. Gonzalez-Colon.............................          Nay   Mr. DeSaulnier....................          Yea
Mr. Stauber.....................................          Nay   Mr. Carbajal......................          Yea
Mr. Burchett....................................          Nay   Mr. Stanton.......................          Yea
Mr. Johnson of SD...............................          Nay   Mr. Allred........................          Yea
Mr. Van Drew....................................          Nay   Ms. Davids of KS..................          Yea
Mr. Nehls.......................................          Nay   Mr. Garcia of IL..................  ............
Mr. Gooden of TX................................          Nay   Mr. Pappas........................          Yea
Mr. Mann........................................          Nay   Mr. Moulton.......................  ............
Mr. Owens.......................................          Nay   Mr. Auchincloss...................          Yea
Mr. Yakym.......................................          Nay   Ms. Strickland....................          Yea
Mrs. Chavez-DeRemer.............................          Nay   Mr. Carter of LA..................  ............
Mr. Edwards.....................................          Nay   Mr. Ryan..........................          Yea
Mr. Kean of NJ..................................          Nay   Mrs. Peltola......................          Yea
Mr. D'Esposito..................................          Nay   Mr. Menendez......................          Yea
Mr. Burlison....................................          Nay   Ms. Hoyle of OR...................          Yea
 Mr. James......................................          Nay   Mrs. Sykes........................          Yea
Mr. Van Orden...................................          Nay   Ms. Scholten......................          Yea
Mr. Williams of NY..............................          Nay   Mrs. Foushee......................          Yea
Mr. Molinaro....................................          Nay
Mr. Collins.....................................          Nay
Mr. Ezell.......................................          Nay
Mr. Duarte......................................          Nay
Mr. Bean of FL..................................          Nay
----------------------------------------------------------------------------------------------------------------

Committee on Transportation and Infrastructure Roll Call Vote No. 003

    On: Agreeing to amendment #5 offered by Mr. Huffman.
    Not Agreed to: 26 yeas and 34 nays.

----------------------------------------------------------------------------------------------------------------
                     Member                           Vote                    Member                    Vote
----------------------------------------------------------------------------------------------------------------
Mr. Graves of MO................................          Nay   Mr. Larsen of WA..................          Yea
Mr. Crawford....................................          Nay   Ms. Norton........................          Yea
Mr. Webster of FL...............................          Nay   Mrs. Napolitano...................          Yea
Mr. Massie......................................          Nay   Mr. Cohen.........................          Yea
Mr. Perry.......................................          Nay   Mr. Garamendi.....................          Yea
Mr. Babin.......................................          Nay   Mr. Johnson of GA.................          Yea
Mr. Graves of LA................................  ............  Mr. Carson........................          Yea
Mr. Rouzer......................................          Nay   Ms. Titus.........................          Yea
Mr. Bost........................................          Nay   Mr. Huffman.......................          Yea
Mr. LaMalfa.....................................          Nay   Ms. Brownley......................          Yea
Mr. Westerman...................................          Nay   Ms. Wilson of FL..................  ............
Mr. Mast........................................          Nay   Mr. Payne.........................          Yea
Mrs. Gonzalez-Colon.............................          Nay   Mr. DeSaulnier....................          Yea
Mr. Stauber.....................................          Nay   Mr. Carbajal......................          Yea
Mr. Burchett....................................          Nay   Mr. Stanton.......................          Yea
Mr. Johnson of SD...............................          Nay   Mr. Allred........................          Yea
Mr. Van Drew....................................          Nay   Ms. Davids of KS..................          Yea
Mr. Nehls.......................................          Nay   Mr. Garcia of IL..................  ............
Mr. Gooden of TX................................          Nay   Mr. Pappas........................          Yea
Mr. Mann........................................          Nay   Mr. Moulton.......................  ............
Mr. Owens.......................................          Nay   Mr. Auchincloss...................          Yea
Mr. Yakym.......................................          Nay   Ms. Strickland....................          Yea
Mrs. Chavez-DeRemer.............................          Nay   Mr. Carter of LA..................  ............
Mr. Edwards.....................................          Nay   Mr. Ryan..........................          Yea
Mr. Kean of NJ..................................          Nay   Mrs. Peltola......................          Yea
Mr. D'Esposito..................................          Nay   Mr. Menendez......................          Yea
Mr. Burlison....................................          Nay   Ms. Hoyle of OR...................          Yea
Mr. James.......................................          Nay   Mrs. Sykes........................          Yea
Mr. Van Orden...................................          Nay   Ms. Scholten......................          Yea
Mr. Williams of NY..............................          Nay   Mrs. Foushee......................          Yea
Mr. Molinaro....................................          Nay
Mr. Collins.....................................          Nay
Mr. Ezell.......................................          Nay
Mr. Duarte......................................          Nay
Mr. Bean of FL..................................          Nay
----------------------------------------------------------------------------------------------------------------

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    With respect to the requirements of clause 3(c)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee's oversight findings and recommendations are 
reflected in this report.

               NEW BUDGET AUTHORITY AND TAX EXPENDITURES

    With respect to the requirements of clause 3(c)(2) of rule 
XIII of the Rules of the House of Representatives and section 
308(a) of the Congressional Budget Act of 1974 and with respect 
to requirements of clause (3)(c)(3) of rule XIII of the Rules 
of the House of Representatives and section 402 of the 
Congressional Budget Act of 1974, the Committee has requested 
but has not received a cost estimate for this bill from the 
Director of Congressional Budget Office. Further, the Committee 
has requested but not received from the Director of the 
Congressional Budget Office a statement as to whether this bill 
contains any new budget authority, spending authority, credit 
authority, or an increase or decrease in revenues or tax 
expenditures. The Committee additionally requested and received 
from the Congressional Budget Office a preliminary estimate of 
the budgetary effects for this bill. The Congressional Budget 
Office estimated on a preliminary basis that enactment of H.R. 
1152 would not affect direct spending or revenues.

               CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives, a cost 
estimate provided by the Congressional Budget Office pursuant 
to section 402 of the Congressional Budget Act of 1974 was not 
made available to the Committee in time for the filing of this 
report. Pursuant to clause 3(d)(1) of House rule XIII, in the 
absence of an estimate from the Director of the Congressional 
Budget Office, the Committee adopts its own cost estimate based 
on the preliminary findings of the Congressional Budget Office. 
The Congressional Budget Office estimated on a preliminary 
basis that enactment of H.R. 1152 would not affect direct 
spending or revenues.

                    PERFORMANCE GOALS AND OBJECTIVES

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
performance goal and objective of this legislation is to 
provide promotion of the development of the Nation's 
infrastructure by streamlining the permitting process under 
Section 401 of the Clean Water Act (CWA) and clarifying Section 
401's focus on CWA water quality.

                    DUPLICATION OF FEDERAL PROGRAMS

    Pursuant to clause 3(c)(5) of rule XIII of the Rules of the 
House of Representatives, the Committee finds that no provision 
of H.R. 1152 establishes or reauthorizes a program of the 
Federal government known to be duplicative of another Federal 
program, a program that was included in any report from the 
Government Accountability Office to Congress pursuant to 
section 21 of Public Law 111-139, or a program related to a 
program identified in the most recent Catalog of Federal 
Domestic Assistance.

   CONGRESSIONAL EARMARKS, LIMITED TAX BENEFITS, AND LIMITED TARIFF 
                                BENEFITS

    In compliance with clause 9 of rule XXI of the Rules of the 
House of Representatives, this bill, as reported, contains no 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of the rule 
XXI.

                       FEDERAL MANDATES STATEMENT

    An estimate of Federal mandates prepared by the Director of 
the Congressional Budget Office pursuant to section 423 of the 
Unfunded Mandates Reform Act was not made available to the 
Committee in time for the filing of this report. The Chairman 
of the Committee shall cause such estimate to be printed in the 
Congressional Record upon its receipt by the Committee.

                        PREEMPTION CLARIFICATION

    Section 423 of the Congressional Budget Act of 1974 
requires the report of any Committee on a bill or joint 
resolution to include a statement on the extent to which the 
bill or joint resolution is intended to preempt state, local, 
or tribal law. The Committee finds that H.R. 1152 does not 
preempt any state, local, or tribal law.

                      ADVISORY COMMITTEE STATEMENT

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act were created by this 
legislation.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Public Law 
104-1).

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title

    This section provides that this bill may be cited as the 
``Water Quality Certification and Energy Project Improvement 
Act of 2023''.

Section 2. Certification

    This section clarifies that activities under review 
pursuant to this section shall be limited to CWA-related water 
quality standards and to the effects of specific discharges. It 
also clarifies that state review requirements must be clear and 
available to applicants and that within 90 days applicants must 
be made aware of any additional information a state requires to 
process its review of the permit.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    With respect to the requirement of clause 3(e) of rule XIII 
of the Rules of the House of Representatives, changes in 
existing law made by the bill, as reported, this section was 
not made available to the Committee in time for the filing of 
this report. The Chair of the Committee shall have this printed 
upon its receipt by the Committee.

                             MINORITY VIEWS

    We oppose H.R. 1152. This bill significantly curtails the 
authority of states and Tribes to protect their water 
resources. The changes in H.R. 1152 defy the overarching intent 
of the Clean Water Act (CWA, or the Act) and gut the explicit 
authority under section 401 of the Act for states and Tribal 
governments to ensure that projects and activities carried out 
within their jurisdictions are consistent with their water 
quality standards and other relevant state and Tribal laws. 
This partisan bill weakens CWA protections while allowing 
special interests to override state and Tribal concerns over 
potential development within their own borders.
    The bill narrows section 401 authority, in place since the 
enactment of the CWA, to the point of obsoletion.
    First, it limits the scope of state and Tribal review to 
only specific, direct discharges associated with the proposed 
project or activity. Congress created section 401 to allow a 
state or Tribe to consider the impact of an ``activity as a 
whole'' on its waterbodies and associated water resources. By 
limiting the review to direct discharges, a state or Tribe will 
be barred from considering the water quality impacts of the 
project or activity generally, such as discharges after 
construction, discharges by entities other than the applicant, 
or other impacts that result from the project or activity 
changing the natural environment.
    Additionally, the bill restricts the conditions a state or 
Tribe may impose on a project or activity to only those 
directly related to specified provisions within the Act related 
to effluent limitations, water quality standards, treatment 
standards, and toxic and pretreatment requirements. By 
narrowing the conditions a state or Tribe may impose on the 
project or activity, the bill repeals existing authority for 
states and Tribes to consider the potential impacts of a 
project or activity in the context of state pollution control 
programs, fish recovery programs, temperature control 
mechanisms, and minimum flow requirements.
    Finally, H.R. 1152 imposes strict and nearly impossible 
time limits to review applications for proposed projects or 
activities, regardless of whether these applications are 
complete or contain information sufficient for a thorough state 
and Tribal review.
    Proponents of this legislation point to these changes as a 
way to curb state overreach and to accelerate permitting review 
times. However, in a letter to the Committee dated February 28, 
2023, the states of California, Washington, and New York 
expressed serious concern with the changes proposed in this 
legislation, stating that ``[revising] the statutory language 
to contradict longstanding interpretations would induce 
confusion and invite arguments about the nexus between the 
discharge and the impact.''\22\ In addition, state 
organizations, such as the Western States Water Council, have 
expressed concern that placing arbitrary and strict limits on 
section 401 application review times and processes will require 
states ``to issue an increased number of denials, due to 
inflexible deadlines that do not accommodate state public 
engagement laws or allow sufficient time to gather adequate 
information on project impacts.''\23\ In practice, enactment of 
H.R. 1152 may increase project delays, as a state may be forced 
to deny a certification for a project or activity rather than 
grant it blindly and cede its authority over protecting its 
water.
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    \22\See Letter from the California State Water Resources Control 
Board, the New York State Department of Environmental Conservation, and 
the Washington State Department of Ecology to Chairman Sam Graves, 
dated February 28, 2023, submitted to the record of the Full Committee 
Markup of February 28, 2023.
    \23\Resolution of the Western States Water Council in Support of 
State CWA Section 401 Certification Authority, Position #471, September 
16, 2021.
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    Changing the timing and process for EPA review shifts 
additional burden, but less control, to the states and Tribes. 
Under the bill, responsibility for EPA notification shifts from 
the applicant to a state or Tribe. The bill also requires 
concurrent review by EPA and the state or Tribe, which removes 
the ability of EPA to understand the local views on a project 
(which is the purpose of section 401) before EPA conducts its 
assessment.
    During consideration of H.R. 1152, Committee Democrats 
sought to lessen its negative impacts. For example, 
Representative Emilia Sykes (OH-13) offered an amendment to 
preserve existing authority to review and prevent potential 
adverse consequences of projects or activities, including ``the 
potential for a pipeline to leak dangerous chemicals into 
groundwater; any toxic runoff from an approved factory; or 
pollution in our waterways that results from a train 
derailment.'' The devastating impacts of the Norfolk Southern 
derailment in East Palestine, Ohio are a stark reminder of the 
importance of section 401 reviews and why Congress should 
retain authority for states to address the potential impacts of 
projects and activities within their borders.
    Similarly, Representative Jared Huffman (CA-02) offered an 
amendment to maintain the current rights of Tribes under the 
section 401 process and ensure that H.R. 1152 does not hinder 
their sovereignty. This amendment sought to protect the current 
authority of Tribes to be treated as separate and co-equal 
entities in approving, denying, or conditioning projects or 
activities that could impact jurisdictional waters.
    Section 401 has been an effective tool for states--a 
successful example of cooperative federalism at work and 
partnership between states and the EPA. States across the 
country process hundreds of CWA certifications annually, and 
instances where they reject or place conditions on a permit are 
limited. Yet, H.R. 1152 would significantly curtail state and 
Tribal authority based on nebulous concern that a handful of 
projects were denied state certification.
    In our view, this legislation is unnecessary and 
unwarranted.
                                   Rick Larsen,
                                             Ranking Member.
                                   Grace F. Napolitano,
                                             Ranking Member, 
                                               Subcommittee on Water 
                                               Resources and 
                                               Environment.
                                   Eleanor Holmes Norton.
                                   Steve Cohen.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Andre Carson.
                                   Dina Titus.
                                   Jared Huffman.
                                   Julia Brownley.
                                   Frederica S. Wilson.
                                   Donald M. Payne, Jr.
                                   Mark DeSaulnier.
                                   Colin Z. Allred.
                                   Jesus ``Chuy'' Garcia.
                                   Seth Moulton.
                                   Jake Auchincloss.
                                   Marilyn Strickland.
                                   Troy A. Carter.
                                   Rob Menendez.
                                   Val Hoyle.
                                   Emilia Sykes.
                                   Valerie P. Foushee.

                            ADDITIONAL VIEWS

    I file these additional views because I strongly disagree 
with the Majority's implication in this Committee report that 
states and Tribes have misused their authority under section 
401 of the Clean Water Act to deny the certification of 
projects affecting state or Tribal waters solely for impacts 
unrelated to water quality. There are multiple letters, witness 
statements, and evidence to the contrary.
    First, during the Committee markup of H.R. 1152, I included 
in the record a letter from the Water Resources Control Board 
of my state of California, who, along with the New York State 
Department of Environmental Conservation and the Washington 
State Department of Ecology, expressed opposition to H.R. 1152. 
In this letter, the states highlight how this legislation will 
``undermine states' ability to protect water quality within 
their states and erode five decades of successful, cooperative 
federalism.''
    A copy of that letter is included with these views.
    Second, the Majority continues to inaccurately imply that 
states are wrongfully denying section 401 certifications solely 
based on reasons outside of state water quality concerns.
    For example, in the Committee report, the Majority 
references the section 401 certification denial by the State of 
Washington in 2017 of the Millennium Bulk Materials coal export 
terminal. In this report, the Majority claims that the State of 
Washington ``did not cite water quality standards as a reason 
for denial.'' However, in 2019, the former-Director of the 
Washington State Department of Ecology, Maia Bellon, testified 
before the Subcommittee on Water Resources and Environment on 
this issue, where she noted that:

          For two years we have been falsely accused of 
        ``abusing our 401 authority'' and denying the 
        [Millennium] project based on our so-called 
        philosophical opposition to coal. This is frankly 
        nonsense. The fact is that our decision was based on 
        the project's failure to meet water quality standards, 
        and its further failure to meet our state's 
        environmental standards. The project proponent failed 
        to provide any mitigation for the areas the project 
        would devastate, especially along the Columbia River. 
        The environmental analysis demonstrated that this 
        project would have destroyed 24 acres of wetlands and 
        26 acres of forested habitat, as well as dredged 41 
        acres of riverbed. It would have contaminated 
        stormwater from stockpiling 1.5 million tons of 
        material onsite near the river--picture, if you will, 
        an 85-foot-high pile of coal running the length of the 
        National Mall, from the steps of the Capitol to the 
        foot of the Lincoln Memorial.\24\
---------------------------------------------------------------------------
    \24\See https://democrats-transportation.house.gov/download/bellon-
testimony; see also, Section 401 Water Quality Certification Denial 
(Order No. 15417) for Corps Public Notice No. 2010-1225 Millennium Bulk 
Terminals-Longview, LLC Coal Export Terminal from Maia D. Bellon, 
Director, State of Washington Department of Ecology to Millennium Bulk 
Terminals-Longview, LLC, available at https://ecology.wa.gov/DOE/files/
83/8349469b-a94f-492b-acca-d8277e1ad237.pdf.

    Similarly, the Majority's Committee report references the 
denial by the State of New York of the Northeast Supply 
Enhancement Project proposed by the Transcontinental Gas Pipe 
Line Company (Transco) in 2019. Again, the Majority 
inaccurately suggests that the State of New York based its 
section 401 certification denial solely on the project's likely 
increase of greenhouse gas emissions and associated impacts on 
climate change. However, in the 2019 letter to the project 
applicant, the State highlights that the ``Department does not 
have reasonable assurances that construction and operation of 
the [Northeast Supply Enhancement] Project would meet all 
applicable water quality standards.''\25\ Specifically, the 
State explains that:
---------------------------------------------------------------------------
    \25\See Notice of Denial of Water Quality Certification from Daniel 
Whitehead, Director, Division of Environmental Permits, NY State Dep't 
of Environmental Conservation, to Joseph Dean, Transcontinental Gas 
Pipe Line Company, LLC, (May 15, 2019), available at https://
www.dec.ny.gov/docs/administration_pdf/nodtgp.pdf.

          Most notably, according to Transco's own submissions 
        and as acknowledged by FERC, water quality standards 
        for both mercury and copper are projected to be 
        exceeded in certain areas in New York State waters. In 
        addition, at this time, due in part to the Department's 
        ongoing consideration of public comments received on 
        the WQC Application and of the Project's water quality 
        impacts, Transco and the Department have not finalized 
        appropriate requirements to mitigate for impacts to 
        water quality, shellfish beds, other benthic resources, 
        and other relevant environmental impacts.\26\
---------------------------------------------------------------------------
    \26\Id.

    Similarly, in its 2020 denial of the same project, the 
---------------------------------------------------------------------------
State further notes that:

          Transco has not demonstrated that construction and 
        operation of the Project would comply with applicable 
        water quality standards. Because the Department lacks 
        reasonable assurances that the Project would comply 
        with applicable water quality standards, particularly 
        without the use of a default 500-foot mixing zone for 
        mercury and copper, the Department hereby denies the 
        2019 WQC Application.\27\
---------------------------------------------------------------------------
    \27\See Notice of Denial of Water Quality Certification from Daniel 
Whitehead, Director, Division of Environmental Permits, NY State Dep't 
of Environmental Conservation, to Joseph Dean, Transcontinental Gas 
Pipe Line Company, LLC, (May 15, 2020), available at https://
www.dec.ny.gov/docs/permits_ej_operations_pdf/
nesewqcdenial05152020.pdf.

    I continue to oppose H.R. 1152, but believe it is also 
important that the Committee report accurately and completely 
reflect the evidence presented to the Committee members for 
consideration.
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                                   Grace F. Napolitano, 
                                           Ranking Democrat, 
                                               Subcommittee on Water 
                                               Resources and 
                                               Environment. 



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