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WASHINGTON – U.S. Senator and Senate Environment and Public Works (EPW) Committee member Kevin Cramer (R-ND) questioned Wyoming Governor Mark Gordon and Oklahoma Governor Kevin Stitt today about states weaponizing Section 401 of the Clean Water Act. 

“This is a critical issue for landlocked states like North Dakota. We are the second largest oil producer in the nation and a leader in agriculture production,” said Senator Cramer. “States like Washington and New York have abused the 401 process, denying projects for reasons outside its scope. Regulatory certainty is imperative to right-size the role of activist-driven states, which is why I am a cosponsor of the legislation before us today.”

This exchange took place during an EPW hearing on legislation Senator Cramer helped introduced in April, which makes several key clarifications to existing law about the appropriate scope of review for a water quality certification. In 2017, the state of Washington’s own Environmental Impact Statement for the Millennium Bulk Terminal stated, “There would be no unavoidable and significant adverse environmental impacts on water quality,” yet Washington proceeded to deny the permit.

This legislation – the Water Quality Certification Improvement Act of 2019 – also places procedural guardrails and requirements on states as they process requests for certification in order to prevent future abuses. Specifically, this bill:

  • Clarifies the scope of a Section 401 review is limited to water quality impacts only;
  • Clarifies states – when evaluating water quality – can only consider discharges which result from the federally permitted or licensed activity itself, not other sources;
  • Requires states to publish clear requirements for water quality certification requests;
  • Requires states to make final decisions on whether to grant or deny a request in writing based only on water quality reasons; and
  • Requires states to inform a project applicant within 90 days whether the states have all necessary materials to process a certification request.

In June, Senator Cramer praised the EPA for proposing updated guidance for Section 401, saying the current system has been abused by states for their own political gain.

Click Here to Watch the Full Exchange

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