WASHINGTON, D.C. — U.S. Senator John Barrasso (R-WY) recently introduced the Water Quality Certification Improvement Act of 2023. The legislation is cosponsored by Senators Cynthia Lummis (R-WY), Kevin Cramer (R-ND), Steve Daines (R-MT), and Pete Ricketts (R-NE).

The bill amends section 401 of the Clean Water Act. The legislation makes several key clarifications to existing law about the appropriate scope of review for a water quality certification. It would also place procedural guardrails and requirements on states as they process requests for certification to prevent future abuses.

“Environmental extremists are hijacking the water quality certification process to delay critical energy projects across the country,” said Sen. Barrasso. “In Washington state, they’re abusing this system to block Wyoming coal exports. East coast states are using this same playbook to block important natural gas pipeline projects. Make no mistake, this is about politics, not water quality. It only weakens our economy and makes America even more dependent on foreign energy. The Water Quality Certification Improvement Act will ensure the water quality certification process is used only to protect America’s water, not advance extreme political agendas.”

“The Section 401 certification process has been plagued with uncertainty and unnecessary delays that has created a system environmental extremists have weaponized to block projects they’re opposed to for purely political reasons,” said Sen. Lummis. “Instead of picking winners and losers in the energy industry off of politics, the Water Quality Certification Improvement Act ensures the certification process is about water quality only. I’m pleased to partner with Senator Barrasso and my colleagues to clarify this regulatory nightmare.”

“Section 401 of the Clean Water Act has been repetitively used by activist states like New York and Washington to block energy infrastructure under the guise of water quality,” said by Sen. Cramer. “By expanding Section 401 beyond direct water quality effects, they have obstructed interstate commerce for energy producing states like North Dakota. The Water Quality Certification Improvement Act places common sense procedural guardrails and requirements on states to prevent abuse without removing any water quality protections.”

The Water Quality Certification Improvement Act of 2023 would:

• Clarify that the scope of a section 401 review is limited to water quality impacts only;
• Clarify that states, when evaluating water quality, can only consider discharges that would result from the federally permitted or licensed activity itself – not from other sources;
• Require states to publish clear requirements for water quality certification requests;
• Require states to make final decisions on whether to grant or deny a request in writing based only on water quality reasons; and
• Require states to inform a project applicant within 90 days whether the states have all of the materials needed to process a certification request.

Read the Water Quality Certification Improvement Act of 2023 here.

Background Information:

On August 16, 2018, the Senate Environment and Public Works Committee held a “Hearing to Examine Implementation of Clean Water Act Section 401 and S. 3303, the Water Quality Certification Improvement Act of 2018.”

On October 4, 2018, Barrasso, Daines, Inhofe, Capito, and Enzi sent a letter to Andrew Wheeler, Environmental Protection Agency then-Acting Administrator, regarding the implementation of Section 401 of the Clean Water Act. In the letter, the senators asked Wheeler to provide implementation direction to federal agencies regarding Section 401, in light of recent abuses by certain states.

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