Move in Congress to Weaken Clean Water Act Could Have Big Impact in New Jersey

Opponents of PennEast pipeline say if law is revamped, it would make it ‘extremely difficult’ to fight such projects

There is a move underway in Congress to revamp a key section of the federal Clean Water Act, a step that could undermine the ability of states to block energy and big infrastructure projects.

The legislation, to be taken up by the Senate Environment and Public Works Committee today, would weaken Section 401 of the CWA, a provision that allows states to determine if such projects comply with water-quality standards.

The tool has been used by states, including New York, which denied a permit to the 120-mile interstate Constitution pipeline over water-quality concerns. Many opponents of the PennEast pipeline in New Jersey are hoping the state Department of Environmental Protection will take similar action here.

But Senate Republicans and industry lobbyists have argued the states are using the 401 process to delay or stall projects, including natural-gas pipelines.

Barrasso: Some states abusing law to delay projects

“The water quality certification process is being abused by a few states in order to delay important projects,’’ said Sen. John Barrasso, a Republican who drafted the bill to revamp that section of the law. “This kind of obstruction is about politics, not water quality,’’ he said in a press release announcing the bill. Barrasso, of Wyoming, is the chairman of the Senate committee.

The legislation would clarify several aspects of the state certification process, including specifying that the scope of the review is limited to water-quality impacts only and affording states only 90 days after they receive an initial application to request more information.

The proposal is already on the radar screen of environmental organizations, including those which have spent years opposing the PennEast pipeline.

The $1 billion project would begin in Luzerne County, Pa. and cross under the Delaware River before ending in Mercer County. The 118-mile pipeline would cross more than 200 waterways in the state as well as through 56 acres of wetlands.

It’s ‘probably the most effective tool we have’

“If this bill happens, it will make it extremely difficult to fight these dangerous projects,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “It (the Section 401 review) is probably the most effective tool we have to fight these projects.

PennEast originally filed for the necessary water-quality permit with the DEP in April 2017, but the agency refused to review the application, saying it was lacking detailed information about environmental impacts. PennEast could not provide the data because property owners along the route refused to allow the company access to their land.

Tom Gilbert, campaign director for ReThink Energy NJ, said the legislation is clearly an effort to trample states’ rights. “We’re very concerned it is an attempt to curtail longstanding state authority to protect their waters,’’ he said.

But critics say states hostile to fossil fuels use the certification process to block projects they don’t like.

“Some states have chosen to exercise their authority under Section 401 in ways that exceed the bounds of the statue,’’ according to a letter submitted by a couple dozen trade organizations to the committee. They include the American Petroleum Institute, the Edison Electric Institute, the Natural Gas Association, and others.

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