Bill Introduced to Restrict EPA Interference with State Water Programs

Thanks to Jason Bostic and the WV Coal Association for information (and the summary below) regarding new federal legislation that has been  introduced in the U.S. House of Representatives by Nick Rahall (D-WV) and John Mica (R-FL) regarding the federal Environmental Protection Agency’s (EPA) role and authority with respect to state delegated Clean Water Act (CWA) Section 402 programs, state-issued CWA Section 401 water quality certifications and CWA Section 404 permits issued by the U.S. Army Corps of Engineers (Corps). 

The legislation addresses concerns raised by EPA's interference in the state administered programs and the Corps’ permitting process by limiting EPA’s ability to advocate for the imposition of ad-hoc water quality standards through NPDES comment and objection letters and Section 404 comments. 

Specific to West Virginia and coal mining, the legislation addresses virtually every point of contention between EPA and the State of West Virginia regarding the appropriate interpretation and implementation of the narrative water quality standard and the federal agency’s attempts to hijack that standard by virtue of the April 1, 2010 (conductivity) Guidance Document and objections to individual, mine-specific NPDES permits. 

The bill also focuses on EPA’s abuses of the CWA Section 404 permitting program by limiting EPA’s ability to nullify a state-issued CWA 401 water quality certification, installing statutory time frames for EPA comments on pending CWA Section 404 permits and prohibiting EPA from vetoing a Corps-issued permit unless the state water quality regulatory authority agrees with EPA’s determinations. 

The primary sections of the bill include:

Water Quality Standards

1.  Provisions barring EPA from promulgating a new / revised water quality standard for a given pollutant where a state has promulgated and received EPA approval for an existing standard for that pollutant unless the state agrees with EPA’s determination that such a revised standard is necessary to satisfy the CWA.

NPDES / CWA Section 402 Permitting

1.     Provisions prohibiting EPA from objecting to the issuance of a NPDES permit by a state based on:

a.     EPA’s interpretation of a state promulgated and EPA approved water quality standard.

b.    The implementation of any guidance document by EPA that attempts to interpret state promulgated water quality standards.

NPDES / CWA Section 402 State Permit Programs

1.     Provisions restricting EPA from withdrawing approval or limiting federal grant assistance for state-implemented CWA Section 402 permitting programs based on:

a.     Disagreement between the state and EPA regarding the appropriate interpretation and implementation of a state promulgated and EPA approved water quality standard.

b.    Disagreement between the state and EPA regarding the interpretation and implementation of any guidance document by EPA that attempts to interpret state promulgated water quality standards.

Corps CWA Section 404 Permitting Programs

1.     Prohibits EPA from vetoing existing/pending CWA Section 404 permits unless the state in which the project is / will be located agrees with EPA’s conclusions regarding unacceptable adverse effects.

2.     Allows states to assume partial delegation of authority to administer the CWA Section 404 permitting program (states could assume Section 404 permitting responsibility for certain activities and not others--- coal mining operations but not nuclear waste facilities).

3.     Provides statutory deadlines for federal agency comments to be submitted to the Corps on pending Section 404 permit applications—(30 days with additional extension to 60 days).

4.     Prohibits EPA from taking any actions to supersede, disapprove or nullify a state’s finding that a Corps’ authorized Section 404 project will not cause or contribute to violations of state water quality standards per CWA Section 401 (state water quality certification).