Graves & Rouzer Joint Statement on EPA’s Final Rule that Reinforces Weaponization of Clean Water Act to Block Infrastructure Projects
Joint statement of Transportation and Infrastructure Committee Chairman Sam Graves (R-MO) and Water Resources and Environment Subcommittee Chairman David Rouzer (R-NC) on the Environmental Protection Agency’s (EPA’s) final rule that will allow Clean Water Act Section 401 to continue being used to block key infrastructure and energy projects for reasons that have nothing to do with the Clean Water Act (CWA):
“The Clean Water Act Section 401 final rule is unfortunately just another example of the Biden Administration’s hostility towards completing infrastructure projects. This new rule still allows for states to singlehandedly torpedo crucial development of interstate energy and infrastructure projects for reasons unrelated to the Clean Water Act. If you want a solution to this problem, look no further than the House-passed H.R. 1, which contains a provision from our committee to ensure that Clean Water Act water quality standards are the focus of Section 401 reviews, and that bureaucratic activism isn’t allowed to block infrastructure projects. Disappointingly, this rule does not properly address either.”
On February 28, 2023, the Transportation and Infrastructure Committee approved H.R. 1152, the Water Quality Certification and Energy Projects Improvement Act of 2023, introduced by Reps. Rouzer and Garret Graves (R-LA). The legislation promotes the development of the Nation’s energy infrastructure by streamlining the permitting process under Section 401 of the Clean Water Act and clarifying Section 401’s focus on water quality. This legislation was also incorporated into H.R. 1, the Lower Energy Costs Act, which passed the House on March 30, 2023.
In recent years, states such as Washington, Oregon, and New York have weaponized Section 401 to deny certification to projects, including a coal export terminal, a natural gas pipeline, and liquefied natural gas export facility, for reasons outside the scope of Section 401.
The language included in H.R. 1152 and H.R. 1 clarifies that the scope of Section 401 review is restricted to CWA water quality impacts and states may only issue final decisions based on water quality. In 2020, the Trump Administration issued the “Clean Water Act Section 401 Certification Rule,” which included many of these clarifications. However, the Biden Administration initiated the rulemaking process to repeal and replace this 2020 rule, and today’s final rule is the result of that process.