Senators introduce bill to rein in EPA Clean Water Act authority

After three consecutive federal court decisions against the U.S. Environmental Protection Agency, Senators Joe Manchin, D-W.Va., and Pat Toomey, R-Pa., have introduced bipartisan legislation to reinforce efforts to rein in EPA authority under the Clean Water Act. 

Manchin’s office said in a Sept. 20 statement that the Senate legislation is the companion bill to a bipartisan House measure – the Clean Water Cooperative Federalism Act (H.R. 2018) – sponsored by Rep. Nick Rahall, D-W.Va., and John Mica, R-Fla. Their bill, which passed the House 239-184, was supported by a coalition of groups, including the National Association of Manufacturers, the National Mining Association and the American Farm Bureau Federation

The bills would restore and guarantee the proper balance between states and the federal government in a way that protects water quality while also supporting economic growth and job creation, said the Manchin statement. The measure would clarify that Congress intended states to have the primary responsibility in overseeing their land and water resources, not the EPA. 

“I’ve fought against the overreach of the EPA for my entire career, and I’ll continue to make sure that states take the lead when it comes to making sure they have a balance between their environment and their economy,” Manchin said. “The fact is, federal courts agree with us: the EPA has overstepped its bounds. They’re now 0-3 in federal court cases involving their proper role in administering the Clean Water Act. With that being said, I know the fight isn’t over until Congress makes it crystal clear that the EPA needs to operate within its proper boundaries, and that’s why we’re introducing this legislation.” 

“From delaying much-needed coal permits to overregulating our farmers, I constantly hear from my constituents about the obstacles the EPA has put in place that prevent Pennsylvanians from hiring and expanding their businesses,” Toomey added. “This legislation would rein in an overzealous agency, help create jobs, and return water quality regulatory powers to the states, where they belong. I appreciate the bipartisan support from Sen. Manchin and Reps. Mica and Rahall for this important legislation.”   

“Having crafted the House version of this pro jobs bill and gotten it passed last year, I am pleased that Senator Manchin is leading the charge in the Senate with this companion measure,” Rahall said. “Under the guise of ensuring clean water the EPA has circumvented Congress, strong armed our states, and threatened coal mining jobs. Our legislation ends this unconstitutional and indefensible practice by restoring the traditional balance between states and the federal government in the Clean Water Act permitting process.”

The Senate bill would:

  • prevent the EPA from issuing new or revised water quality standards for any state when the state already has an approved water quality standard in place, unless the state agrees;
  • block the EPA from taking any action that supersedes a state certification that a discharge complies with state water quality standards;
  • bar the EPA from vetoing a permit unless the state in which the discharge originates agrees; and
  • mandate that agencies, including the EPA, must comment on a permit application no later than 30 days – or 60 days if extra time is requested – after a permit application is received.

EPA lost big Clean Water Act ruling in March

The Manchin statement didn’t detail the three court cases mentioned. Apparently one of them is a major but only incremental victory for the coal industry when a federal judge on March 23 reversed EPA’s January 2011 ruling that revoked a permit held by a unit of Arch Coal (NYSE: ACI). The vetoed Section 404 Clean Water Act permit, held by Mingo Logan Coal, covered the Spruce No. 1 strip mine in Logan County, W.Va.

Ruling in favor of Mingo Logan on March 23, U.S. District Judge Amy Berman Jackson concluded that the EPA did not have the authority to invalidate an existing permit, and that the EPA had exceeded its authority under the Clean Water Act.

The permit was issued by the U.S. Army Corps of Engineers in 2007 after the company worked 10 years to address environmental concerns in part expressed by the EPA. The Spruce No. 1 project, at that point the largest surface coal mine ever permitted by the West Virginia Department of Environmental Protection at over 3,113 acres, had been the target of a late 1990s federal lawsuit filed by environmental groups. Subsequent re-permitting to reduce environmental impacts brought it down to a current 2,278 acres.

The EPA currently has Jackson’s ruling under appeal at the U.S. Court of Appeals for the D.C. Circuit.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.