Press Releases

WASHINGTON, D.C. —U.S. Representative David B. McKinley P.E. (R-W.Va.) issued the following statement after the U.S. Environmental Protection Agency (EPA) announced its new rule on water permits of the Clean Water Act:

“Building and modernizing energy infrastructure is vital for our economy and energy security,” said Rep. McKinley. “States like New York and Washington are abusing the permitting process to hold needed infrastructure projects hostage. This much-needed rule clarification will provide clear timelines and stop the misuse of this law. I thank the Administration and the EPA for this decisive action.”

Background:

• In April 2019, President Trump issued an executive order that directed EPA to ensure states comply with the plain language and intent of our nation’s environmental laws, and specifically Section 401, which gives states a say in federally approved projects that may impact certain water resources within a state.

• This final rule puts in place clear guidelines that finally give these projects a path forward, and prevents states from using the Clean Water Act in ways that hold hostage the permitting and construction of our nation’s energy infrastructure.

• In promulgating a final rule, EPA conducted the first comprehensive analysis of the text, structure and legislative history of Section 401. As a result, the final rule:

o   Specifies statutory and regulatory timelines for review and action on a Section 401 certification—requiring final action to be taken within one year of receiving a certification request.

o   Clarifies the scope of Section 401, including establishing that 401 certification is only triggered based on the potential for a project to result in a discharge from a point source into a water of the United States. When states look at issues other than the impact on water quality, they go beyond the scope of the Clean Water Act.

o   Explains EPA’s roles under Section 401.

o   Reaffirms the agency’s statutory responsibility to provide technical assistance to any party involved in a Section 401 water quality certification process.

o   Promotes early engagement and coordination among project proponents, certifying authorities and federal licensing and permitting agencies.

o   Properly implemented, Section 401 is an important tool that can be used to help protect water quality while allowing the federal permitting and licensing process to go forward in a timely manner.

• Prior to issuing this proposed rule, EPA consulted with state, local and tribal partners and engaged with federal partners on this rulemaking effort. The agency received more than 120,000 public comments on the rulemaking and carefully reviewed all comments received in completing this final rule.

In April 2019, Rep. McKinley introduced the Water Quality Certification Act Improvement Act with language similar to the announced rule of Section 401 of the Clean Water Act. 

To read the bill text, click here.

To read the executive order, click here.

For an overview of Section 401 of the Clean Water Act, click here.