May 17, 2018
U.S. Sen. Jim Inhofe (R-Okla.), senior member of the Senate Committee on Environment and Public Works, questioned The Honorable R.D. James, Assistant Secretary of the Army Civil Works, about America’s Water Infrastructure Act of 2018 in an EPW hearing today.
Inhofe: We've gone through several of the WRDA bills and other legislation and one of the problems we've had is the over-abundance of redundancy. You have an application out there, then you go through and you have all the different bureaucracies to work with. The president has said that, in talking about infrastructure plans, he's highlighted several areas that can help get our projects constructed faster. He's talking about such as you don't really need a 404 and a 408, you can do that with one application in areas where you have a federal decision, one bureaucracy to work with. Is there anything that you could share with us that you have shared with the president that is going to try take away the burdensome overregulations.
James: I'll do my best sir. You mentioned the 404 and the 408. Those processes have both been moved down to the district level. They're somewhat different. The 404 basically deals with the wetlands. The 408 deals with protecting structures from encroachment or adverse effects from close by infrastructure. But we have put those together hopefully to speed up the process. The other thing that I had begun to notice in the permitting process of the corps, it was becoming punitive rather than just a permit that you come to seek to do a project. Now, that's not in all cases, at all, but I have seen it.
Inhofe: I have seen it too and I'm glad you mentioned that because that gets to my other question that I am very much concerned about and that is that over the past year we've talked about the abuses of the Clean Water Act, it's 401 state certification process. Now, under the law, the 401 process gives states the option to evaluate with a maximum of one year, but they are supposed to be evaluating on the--as to the compliance with the Clean Air Act. And so, if there's a state who just doesn't like something that is, an application has been made, they can stall it for the year and then they hold the applicant over a barrel by saying we'll either deny it or you withdraw it. Well, and what's happened is, for a lot of them--just to give you an example--on the pipelines, trying to reach in the eastern part of the United States, there have been unable to do it because of this bureaucracy that is out there and the efforts to stop that type of legislation from going through and so they hold up a permit under 401 and as a result of that, the people are always the ones who are being punished. A good example is in Boston their natural gas form Russia. Now, we're producing more here than Russia is and we could be doing that here. And why is that? It's because they can't get it just because of the pipeline situation and the obstruction that's out there. Now, there'd be a good legislative fix to that and I would think that hopefully you've had some time to look at that and it could be that we could define that so that they can't use the 401 as a stall tactic unless it is something that actually does violate the Clean Water Act or in some way is consistent. So, it can't just be used for an obstacle. Have you ever thought about that?
James: Yes sir, I'm personally aware of the 401 water quality certification of states. I've seen exactly what you said happen in the past. I think it could be addressed legislatively without stepping on the priorities and the needs of a state simply by saying that if it's not addressed within a year, that the federal government would assume they have nothing to say about it.
Inhofe: I like your idea better.
James: In doing that, I've seen it--you said it hurt those people with the gas line. Where I've seen it is in flood control projects. Back then we'd go through the recon, the feasibility, re-engineering and design, EIS and get ready to go to build a project and couldn't go to build water quality certification from the state, so that not only cost the local people money because it was all cost shared, it cost the federal government money and ultimately on some of those projects it actually killed those projects. So that money that was spent was just down the rabbit hole.
Inhofe: Yeah, I think you and I both have great examples of that. Thank you, Mr. Chairman.