Section 401 was intended as a way to enlist states in protecting water quality standards within their borders. Under current regulation, however, Section 401 is vulnerable to misuse for other purposes, such as the consideration of factors Congress did not intend states to consider in granting water quality certifications and discrimination against interstate commerce.
In recent years states have misused the Section 401 certification authority for purposes that have nothing to do with the Clean Water Act and which contravene important national policy priorities—such as a stable interstate market for accessible and affordable natural gas—as well as the federal structure of our Constitution, which was designed to establish a system of interstate regulatory competition with free movement of labor, capital, and goods.
The proposed rule strikes a better balance between state prerogatives and federal authority under the Clean Water Act and properly ensures that state water quality certifications will be determined on the basis of water quality standards, as provided by the law and in keeping with congressional intent. The proposed rule will help preserve and expand the historic gains that the United States has made over the last decade in achieving energy security and becoming the world’s dominant energy producer.
To ensure that no region of the country is left behind, and that all Americans are able to enjoy the full economic, strategic, and environmental benefits of the energy revolution, it is vital for Section 401 to work in harmony with other federal environmental policies, rather than in conflict with them, as has too often been the case in recent years.
CEI was joined by several individuals and organizations. Individual signatories are Becky Norton Dunlop, former Virginia Secretary of Natural Resources for Virginia, and E. Calvin Beisner, Ph.D.
Leading free-market organization signers are the American Conservative Union, Institute for Energy Research, Americans for Prosperity, and the Energy & Environment Legal Institute.
Read the full letter here.