Rollbacks Proposed for State Review of Stream Crossings

The United States Environmental Protection Agency has proposed a new rule that would restrict the role of states in approving projects under the federal Clean Water Act.

            Under the federal and state Clean Water Acts, anybody who wants to undertake a wide variety of activities which have an impact upon water must have a permit.  These include discharging water into a stream, filling a stream, or crossing a stream or a wetland.  Most recently this requirement has meant that both the Atlantic Coast Pipeline and the Mountain Valley Pipeline have been required to have a permit for pipeline construction.

            Many of these permits are issued by federal agencies.  Under current law, even when federal agencies issue permit decisions, states still have a role.  Under Section 401 of the federal Clean Water Act, federal agencies cannot authorize projects in a state unless that state certifies (called a 401 Certification) that the project will not violate state water quality standards.  

With the Mountain Valley Pipeline, the Atlantic Coast Pipeline, or any other project where federal agencies issue permits, West Virginia could have stopped the project by refusing the 401 Certification.  If it did not want to refuse the 401 Certification outright, it could have conditioned its approval on the pipeline developers taking certain steps to protect water quality.  Because of this power, the 401 Certification process is an excellent tool for imposing whatever conditions were necessary to protect West Virginia water.

            The reason for this requirement of state certification were explained during the original debates on the federal Clean Water Act.  Senator Muskie explained on the floor when what is now §401 was first proposed: “No polluter will be able to hide behind a Federal license or permit as an excuse for a violation of water quality standard[s]. No polluter will be able to make major investments in facilities under a Federal license or permit without providing assurance that the facility will comply with water quality standards. No State water pollution control agency will be confronted with a fait accompli by an industry that has built a plant without consideration of water quality requirements.”

            Now the Environmental Protection Agency wants to take this right of the states away, or at least limit it.  It has proposed a rule that would significantly erode state authority under the Clean Water Act by: (1) preventing states from denying projects that will, as a whole, directly and negatively impact the state’s water quality; (2) preventing states from placing conditions on projects that relate to the overall water quality impacts of a project, rather than just the specific “discharge” from the project; (3) restricting the time available to states and tribes to review and make decisions about major projects impacting their local waterways; and, (4) providing an outsized role for federal agencies in the Water Quality Certification process, in the name of economic development. The proposal would grant substantial discretion to the federal government to force multi-state projects through, without state or local buy-in. If finalized as is, the proposal would represent a major shift in how Section 401 under the Clean Water Act is implemented and enforced by states and tribes.

            The West Virginia Highlands Conservancy has joined in a letter opposing the proposed change.

Does West Virginia really care?

            The power to approve, deny, or condition certification of a proposed project gives states, including West Virginia, a powerful tool to control or limit damage to water quality.  If recent experience is any guide, it makes no difference whether the West Virginia Department of Environmental Protection has this tool or not.  

            Both the Atlantic Coast Pipeline and the Mountain Valley Pipeline had to have permits to cross streams and wetlands in West Virginia.  Through the 401 Certification process, West Virginia could have prevented the Federal Energy Regulatory Commission from finally approving the pipeline as well as the United States Army Corps of Engineers from approving the stream crossings, etc. that the pipeline will entail until we had assurance that West Virginia’s water would not be damaged.  West Virginia had the opportunity to either stop the project entirely or, more likely, place conditions upon it that would make it less damaging to West Virginia waters.

            Instead of reviewing the projects and either rejecting them or placing conditions upon them, West Virginia waived its right to do so.  For the details, see the stories in the December, 2017, and January, 2018, issues of The Highlands Voice.

            Thus, the proposed rule change would severely limit the rights of states to restrict projects which need approval under the Clean Water Act.  If recent experience is any guide, this would make little difference in West Virginia.  The current West Virginia Department of Natural Resources has no interest in using the right which the Clean Water Act grants it anyway.