Rahall Says EPA Legislation Restores Federal-State Partnership, Protects Coal Mining Future

From a Rep. Nick Rahall Release

Washington, D.C. – The U.S. House of Representatives today passed 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 the Environmental Protection Agency’s (EPA) overreach in the Clean Water Act permitting process that is threatening the future of coal mining jobs and communities throughout Appalachia.

“Under the guise of ensuring clean water, the EPA’s regulatory pendulum has swung wildly to one side, knocking aside the long-standing cooperative relationships with the states and leaving affected coal miners teetering on the brink of unemployment,” said Rahall.  “This bill would bring the federal water quality permitting process back to center and help to ensure a more stable, clear, and equitable national clean water program.”

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.

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.

“Not only is the EPA reaching into the Clean Water Act authorities under the jurisdiction of the Army Corps of Engineers, it is also reaching into the States and attempting to control their water protection programs,” said Rahall.  “Certainly, it would be preferable that agencies work with each other, with the States, and within the confines of their statutory authority so we did not have to craft this kind of legislation.  But when they abuse their powers, the Congress has the Constitutional responsibility to serve as a check on them.  This is clearly such a time.”

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,” said Rahall.  “That was the vision of the Clean Water Act and that is the goal of the Clean Water Cooperative Federalism Act of 2011.”

EDITOR'S NOTE: In May Shelley Moore-Capito introduced a jobs protection provision to the aforementioned act.

The “Employment Protection Act” to ensure the EPA considers how their actions impact jobs and the economy.  Capito has fought hard to limit the EPA’s assault on Appalachian job-creators, specifically pushing back against the EPA’s intent to use broadly interpreted regulatory authority to overstep the bounds of its traditional role in the permitting process.

“The energy industry provides thousands of good-paying jobs, and coal alone provides over half of our nation’s electricity and over 95 percent of the power in West Virginia,” stated Capito. “I am proud to work with Senator Toomey to ensure that the EPA cannot continue to push rules and regulations without considering what it is doing to local economies and families.”

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).

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