June 22, 2011

House Committee Passes Rahall Bill to Rein in EPA

Washington, D.C.– The House Transportation and Infrastructure Committee today approved bipartisan legislation introduced by U.S. Representative Nick J. Rahall (D-WV), top Democrat on the Committee, and U.S. Representative John Mica (R-FL), Chairman of the Committee, aimed at reining in EPA’s overreach in the Clean Water Act permitting process that is threatening the future of coal mining jobs and communities throughout Appalachia.

“For far too many years now, my State and others throughout the Appalachian Region that produce coal to power our Nation have been struggling under the weight of an uncertain Federal permitting process,” said Rahall.  “That uncertainty has left coal miners and mining communities living in an untenable limbo.  The result has been the creation of an atmosphere of worry, of distrust, and of bitterness.  But I wager to say that the situation has gotten even worse in recent months.”

The “Clean Water Cooperative Federalism Act of 2011” (H.R. 2018) would provide common sense protections for states’ EPA-approved water quality standards and permitting authority under the Clean Water Act.  Under practices by the current EPA, the permits for surface mines throughout the Appalachian States have been bottled up for months.  The bill would help to speed up the permitting process and rein in EPA, which has imposed new criteria for permits that have stymied the process.

“I had hoped that, under this Administration, we would find a way to reach some common ground.  Unfortunately, that has not been the case,” said Rahall.  “Rather than paving the way toward balance, the EPA’s actions in recent months have enabled the tension of divided opinion over surface coal mining to fracture what should be a cooperative relationship among the Federal and State agencies with permitting responsibility.”

The bill would place limits on EPA’s ability to veto dredge and fill permits previously issued by the Army Corps of Engineers, as EPA did with the Spruce Mine permit in Logan County in January. 

“The EPA may claim that it is following the law and only ‘assisting’ the States, but the reality is that the agency is strong-arming the States, just as it is muscling in on the jurisdiction of other Federal agencies,” said Rahall.  “By creating wholly new criteria and new timelines for Clean Water Act permits and stubbornly insisting, from on high, that the State’s adhere to them, the EPA is imposing its own will and its own interpretations of water quality standards on the States.  It has drawn a line in the sand is daring the States to cross over.”

The bill would also establish reasonable time limits for agency comments and help reduce redundant bureaucratic delays in the section 404 permitting process.

“The most logical solution would be for all sides to come together.  I think we would all prefer that we would not have to craft this kind of legislation.  Certainly, it would be preferable that agencies work with each other, with the States, and within the confines of their statutory authority,” said Rahall.  “It would be better if they followed the rules and did not try to change the law through guidance and Memos of Understanding.  But when they do, when they abuse their powers, the Congress has the Constitutional responsibility to serve as a check on them.  This is clearly such a time.”

Summary of the “Clean Water Cooperative Federalism Act of 2011”

State Water Quality Standards

State Water Quality Standards: Restricts EPA’s ability to issue a revised or new water quality standard for a pollutant whenever a state has adopted – and EPA has already approved – a standard, unless the state concurs.

State Section 401 Water Quality Certification: Prohibits EPA from superseding a water quality certification (that a discharge will comply with applicable water quality requirements) granted by a state under CWA section 401.

Approval of State NPDES Permit Program Authority: Prohibits EPA from withdrawing approval of a state water quality permitting program under CWA section 402 (National Pollutant Discharge Elimination System, or NPDES), or from limiting federal financial assistance for the state program, on the basis that EPA disagrees with the state regarding a (i) water quality standard that a state has adopted and EPA has approved, or (ii) the implementation of any federal guidance that directs a re-interpretation of the state’s approved water quality standards.

EPA Veto Authority over State NPDES Permitting Decisions: Prohibits EPA from objecting to a state’s issuance of an NPDES permit on the basis of (i) EPA’s differing interpretation of an approved state water quality standard, or (ii) the implementation of any federal guidance that directs a re-interpretation of the state’s approved water quality standards.

Permits for Dredged or Fill Material

EPA Veto Authority over Corps Section 404 (Discharges of Dredged or Fill Material) Permitting Decisions: Restricts EPA’s ability to veto a Corps 404 permitting decision unless the state concurs with the veto. In an unprecedented action, EPA recently revoked a section 404 permit it had previously approved, even though the permittee had not violated any permit conditions.

State Permit Program for the Discharge of Dredged or Fill Material: Allows a state to assume and administer only parts of the 404 permit program; under current law, states are required to assume the entire program or none of it.

Deadlines for Agency Comments

Deadlines for Fish and Wildlife Service Comments on Proposed Section 404 Permits: The deadline for the Fish and Wildlife Service to submit comments to the Corps on a proposed section 404 permit is shortened from 90 days to 30 days – or 60 days if additional time is requested.

Deadlines for EPA Comments on Proposed Section 404 Permits: The deadline for the EPA to submit comments to the Corps on a proposed section 404 permit shall be 30 days – or 60 days if additional time is requested.  (This is consistent with an existing Memorandum of Understanding between the two agencies).