June 06, 2018
Legislation would prevent costly, overreaching dredge-and-fill permitting practices
U.S. Senators Jim Inhofe (R-Okla.), Shelley Moore Capito (R-W.Va.), John Barrasso (R-Wyo.) and John Boozman (R-Ark.) today introduced the Regulatory Certainty Act of 2018, legislation to make clear the period of time in which the Environmental Protection Agency (EPA) may prohibit the issuance of or terminate existing dredge-and-fill permits, also known as 404 permits. The bill, meant to prevent regulatory overreach and confusion, would limit that period to 30 consecutive days between the time the U.S. Army Corps of Engineers notifies EPA it is reviewing a 404 permit application and the time the Army Corps issues the permit.
“The Obama-era EPA abused the regulatory process, using bureaucratic overreach to delay or block previously approved projects,” Senator Inhofe said. “This legislation clarifies existing law to promote timely and thorough consideration of 404 permits and eliminate unfair and confusing permitting actions in order to support our domestic energy production.”
“Current law is meant to ensure a fair and responsible permitting process when it comes to projects that could affect our nation’s water. However, because of overreach by the previous administration, the system has been manipulated to unfairly and arbitrarily block certain projects or even stop them in their tracks after they’ve already been given the greenlight,” Senator Capito said. “We saw the consequences of those tactics for the coal industry in West Virginia, but this regulatory practice also has the potential to affect so many other industries that are critical to our economy and domestic energy production. This legislation will provide the regulatory certainty necessary to prevent unfair, confusing, and costly permitting practices; and it will ensure those in the energy, construction, and timber industries are able to move forward with projects that will help us create jobs and pursue an all-of-the-above energy strategy.”
“Our bill provides businesses, including energy companies, with the certainty they deserve to secure permits under the Clean Water Act,” said Senator Barrasso, chairman of the Environment and Public Works Committee. “Companies who want to do the right thing and secure environmental permits have received mixed messages from the Environmental Protection Agency. In the past, EPA unfairly used the permitting process to try to stop projects from moving forward. I am committed to ending that practice and improving Washington’s broken permitting process.”
“Clarifying the EPA’s veto authority will rein in the agency’s overreach that has created uncertainty for businesses seeking permit approval from the Army Corps of Engineers for dredging and filling. I’m pleased to support this bill to prevent a recurrence of abuse by the EPA,” Senator Boozman said.
The legislation introduced today is supported by organizations representing various energy industries—including the American Petroleum Institute (API), the National Mining Association (NMA), and the West Virginia Coal Association.
“Promoting our nation’s energy infrastructure is a $1 trillion proposition that could support 1 million jobs annually through 2035. This important legislation will help give the regulatory certainty companies need to advance infrastructure projects around the country,” said Robin Rorick, group director of Midstream and Industry Operations at the American Petroleum Institute (API). “These projects are critical to delivering the energy that consumers demand every day to fuel our economy and power our homes, schools hospitals, and businesses. We hope that Congress acts swiftly to approve this legislation so that American workers, consumers, and the environment can continue to benefit from our nation’s abundant energy resources.”
“Companies looking to invest in the U.S. need business certainty, yet EPA’s haphazard use of 404(c) leapfrogs accountability and transparency, stifling job creation and chilling investment,” said Hal Quinn, president and CEO of the National Mining Association (NMA). “Permitting must follow a rational process. This bill provides the clarity required to support both responsible development of our natural resources and America’s commitment to environmental protection.”
“The U.S. coal industry desperately needs the certainty and stability this legislation will provide after eight years of EPA’s abuse of its authority under the Obama Administration,” West Virginia Coal Association President Bill Raney said. “The bill clarifies the lines of authority with regards to permitting by the Corps and will ensure that political ideology does not infect the permitting process created by Congress years ago in the CWA.”
Similar legislation was introduced in the U.S. House of Representatives last June by Representatives Bob Gibbs (R-Ohio) and David McKinley (R-W.Va.), among others.
Legislative text is available here.
Section 404 of the Clean Water Act requires a permit from the U.S. Army Corps of Engineers for any dredge or fill activity that impacts federal waters—such as infrastructure development, water resource, and mining projects. The law also specifies circumstances in which the EPA can prohibit such activity. However, through executive overreach, the Obama administration gave the EPA the ability to unilaterally, proactively, and retroactively veto 404 permits, despite statutory language saying permitting decisions should be led by the Army Corps with the EPA providing a collaborative consulting role. While the courts ultimately found this practice to be an overstep of EPA’s authority, significant economic damage had already been done, and a legislative fix is necessary to provide greater certainty in the regulatory process.
The Regulatory Certainty Act of 2018 would prevent a reoccurrence of the Obama EPA’s abuse of its 404 authority to preemptively block a permit or retroactively deny previously issued permits, a tactic that can create costly consequences of certain industries and stifle key energy infrastructure investments.