Rep. Rahall said, "Under the guise of ensuring clean water, the EPA's regulatory pendulum has swung wildly to one side, knocking aside the long-standing cooperative relationships with the states and leaving affected coal miners teetering on the brink of unemployment. This bill would bring the federal water quality permitting process back to center and help to ensure a more stable, clear, and equitable national clean water program."
Rahall indicated in the release that the bill would provide common sense protections for states' EPA-approved water quality standards and permitting authority under the Clean Water Act. Under practices by the current EPA, the permits for surface mines throughout the Appalachian States have been bottled up for months. The bill would help to speed up the permitting process and rein in EPA, which has imposed new criteria for permits that have stymied the process. The bill would place limits on EPA's ability to veto dredge and fill permits previously issued by the Army Corps of Engineers, as EPA did with the Spruce Mine permit in Logan County in January.
Rahall said, "Not only is the EPA reaching into the Clean Water Act authorities under the jurisdiction of the Army Corps of Engineers, it is also reaching into the States and attempting to control their water protection programs. Certainly, it would be preferable that agencies work with each other, with the States, and within the confines of their statutory authority so we did not have to craft this kind of legislation. But when they abuse their powers, the Congress has the Constitutional responsibility to serve as a check on them. This is clearly such a time."
According to a summary of the bill release by Rep. Rahall, the bill would:
- State Water Quality Standards: Restricts EPA's ability to issue a revised or new water quality standard for a pollutant whenever a state has adopted and EPA has already approved a standard, unless the state concurs.
- State Section 401 Water Quality Certification: Prohibits EPA from superseding a water quality certification (that a discharge will comply with applicable water quality requirements) granted by a state under CWA section 401.
- Approval of State NPDES Permit Program Authority: Prohibits EPA from withdrawing approval of a state water quality permitting program under CWA section 402 (National Pollutant Discharge Elimination System, or NPDES), or from limiting federal financial assistance for the state program, on the basis that EPA disagrees with the state regarding a (i) water quality standard that a state has adopted and EPA has approved, or (ii) the implementation of any federal guidance that directs a re-interpretation of the state's approved water quality standards.
- EPA Veto Authority over State NPDES Permitting Decisions: Prohibits EPA from objecting to a state's issuance of an NPDES permit on the basis of (i) EPA's differing interpretation of an approved state water quality standard, or (ii) the implementation of any federal guidance that directs a re-interpretation of the state's approved water quality standards.
- EPA Veto Authority over Corps Section 404 (Discharges of Dredged or Fill Material) Permitting Decisions: Restricts EPA's ability to veto a Corps 404 permitting decision unless the state concurs with the veto. In an unprecedented action, EPA recently revoked a section 404 permit it had previously approved, even though the permittee had not violated any permit conditions.
- State Permit Program for the Discharge of Dredged or Fill Material: Allows a state to assume and administer only parts of the 404 permit program; under current law, states are required to assume the entire program or none of it.
- Deadlines for Fish and Wildlife Service Comments on Proposed Section 404 Permits: The deadline for the Fish and Wildlife Service to submit comments to the Corps on a proposed section 404 permit is shortened from 90 days to 30 days or 60 days if additional time is requested.
- Deadlines for EPA Comments on Proposed Section 404 Permits: The deadline for the EPA to submit comments to the Corps on a proposed section 404 permit shall be 30 days or 60 days if additional time is requested. (This is consistent with an existing Memorandum of Understanding between the two agencies).