Text: S.Hrg. 115-344 — HEARING TO EXAMINE IMPLEMENTATION OF CLEAN WATER ACT SECTION 401 AND S. 3303, THE WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF 2018

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[Senate Hearing 115-344]
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                                                        S. Hrg. 115-344
.                                                      
HEARING TO EXAMINE IMPLEMENTATION OF CLEAN WATER ACT SECTION 401 AND S. 
     3303, THE WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF 2018

=======================================================================

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             SECOND SESSION

                               __________

                            AUGUST 16, 2018

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
  
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        Available via the World Wide Web: http://www.govinfo.gov
        
        
                    U.S. GOVERNMENT PUBLISHING OFFICE
                   
 31-623 PDF                 WASHINGTON : 2019      
        
        
        
        
        
               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                     ONE HUNDRED FIFTEENTH CONGRESS
                             SECOND SESSION

                    JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware, 
SHELLEY MOORE CAPITO, West Virginia      Ranking Member
JOHN BOOZMAN, Arkansas               BENJAMIN L. CARDIN, Maryland
ROGER WICKER, Mississippi            BERNARD SANDERS, Vermont
DEB FISCHER, Nebraska                SHELDON WHITEHOUSE, Rhode Island
JERRY MORAN, Kansas                  JEFF MERKLEY, Oregon
MIKE ROUNDS, South Dakota            KIRSTEN GILLIBRAND, New York
JONI ERNST, Iowa                     CORY A. BOOKER, New Jersey
DAN SULLIVAN, Alaska                 EDWARD J. MARKEY, Massachusetts
RICHARD SHELBY, Alabama              TAMMY DUCKWORTH, Illinois
                                     CHRIS VAN HOLLEN, Maryland

              Richard M. Russell, Majority Staff Director
              Mary Frances Repko, Minority Staff Director
              
                            C O N T E N T S

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                                                                   Page

                            AUGUST 16, 2018
                           OPENING STATEMENTS

Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     1
Gillibrand, Hon. John, U.S. Senator from the State of New York...     3
Daines, Hon. Steve, U.S. Senator from the State of Delaware......    18

                               WITNESSES

CJ Stewart, Board Director, National Tribal Energy Association...    20
    Prepared statement...........................................    22
    Responses to additional questions from:
        Senator Carper...........................................    25
        Senator Merkley..........................................    28
Brent Booker, Secretary-Treasurer, North America's Building 
  Trades Unions..................................................    30
    Prepared statement...........................................    32
    Response to an additional question from Senator Carper.......    37
Anthony Willardson, Executive Director, Western States Water 
  Council........................................................    68
    Prepared statement...........................................    70
    Responses to additional questions from:
        Senator Carper...........................................    86
        Senator Markey...........................................    99
        Senator Merkley..........................................   102

                          ADDITIONAL MATERIAL

Report; Environmental and Land Use Hearing Office, Order on 
  Summary Judgment...............................................   377
Letter; International Brotherhood of Electrical Workers..........   401
Report; United States Court of Appeals for the Second Circuit, 
  Petition for Review form the Federal Energy Regulatory 
  Commission.....................................................   423
Statement; Senator Daines: Dained Defends Montana's Right ot 
  Export Coal to Asia............................................   521
Statement; Western Water Council.................................
Statement; Westerm Governors Association.........................   530
Report: Hon. Robert J. Bryan, Opposition to the Millennium Bulk 
  Terminal Port Facility.........................................   533
Report; SEPA Greenhouse Gas Emissions Technical Report...........   579
Letter; International Brotherhood of Electrical Workers..........   700
Letter; New Jersey Conservation Foundation and The Watershed 
  Institute......................................................   703
Testimony; Western States Water Council..........................   709
Article; the New Jersey Spotlight: Move in Congress to Weaken 
  Clean Water Act Could Have Big Impact in New Jersey............   750
Statement; Washington Building Trades: Resolution in Support of 
  the Millennium Bulk Terminals Project..........................   752
Letter; IPAA, Independent Petroleum Association of America.......   754



HEARING TO EXAMINE IMPLEMENTATION OF CLEAN WATER ACT SECTION 401 AND S. 
     3303, THE WATER QUALITY CERTIFICATION IMPROVEMENT ACT OF 2018

                              ----------                              


                       WEDNESDAY, AUGUST 16, 2018

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:03 a.m. in 
room 406, Dirksen Senate Building, Hon. John Barrasso (chairman 
of the committee) presiding.
    Present: Senators Barrasso, Capito, Boozman, Fischer, 
Rounds, Ernst, Cardin, Merkley, Gillibrand, Booker, Markey, and 
Van Hollen.

           OPENING STATEMENT OF HON. JOHN BARRASSO, 
             U.S SENATOR FROM THE STATE OF WYOMING

    Senator Barrasso. Good morning. I call this hearing to 
order.
    Today, the committee will hold a legislative hearing to 
examine S. 3303, the Water Quality Certification Improvement 
Act of 2018. This bill would improve implementation of Section 
401 of the Clean Water Act.
    Section 401 of the Clean Water Act empowers states with an 
important role in protecting water quality within their 
borders. Anyone applying for a Federal license or permit must 
ask the State to certify that resulting discharges into water 
will not degrade water quality. For decades, States have 
reviewed projects and issued water quality decisions.
    Generally, this process works well. States and Washington, 
DC. work together, with clear and defined roles, to solve 
problems at both the regional and the national level. The State 
makes sure discharges will not negatively affect water quality. 
The Federal Government then issues the permit or license with 
the State's blessing.
    This shared authority has been a good example of 
cooperative federalism. The vast majority of States have 
honored this shared responsibility. Recently, a few States have 
hijacked the water quality certification process in order to 
delay important projects.
    The State of Washington has abused their authority to block 
the export of coal mined in Wyoming, Utah, Colorado, and 
Montana. The State of Washington has refused to grant a water 
quality certification for the Millennium Bulk Terminal project. 
The project would enable the export of Western coal to markets 
in Asia.
    Japan, South Korea, and other countries want and need this 
American energy. By preventing this project from moving 
forward, Washington State has hurt the economy of the entire 
region and the Nation.
    The delay of the export terminal does not just affect the 
coal industry. The Millennium Bulk Terminal project creates 
jobs and directly benefits families in Wyoming, Washington, and 
other Western States. That is why local unions and Cowlitz 
County, the county where the terminal would be built, support 
the project.
    Washington State's refusal to issue the permit is not just 
bad for our economy; it is also bad for the environment. 
Wyoming produces the cleanest burning coal in the United States 
in a sustainable and safe manner.
    The Asian market will continue to use coal even if it 
cannot get American coal. By refusing to allow Wyoming to 
export its coal, the State of Washington is pushing these Asian 
markets to use coal from non-American sources, sources that are 
not as clean or safe.
    Washington State hired a consultant to evaluate greenhouse 
gas effects as part of its environmental review process. That 
consultant, hired by the State of Washington, concluded that 
mining and exporting American coal could reduce total global 
greenhouse gas emissions by displacing coal mined elsewhere.
    Washington State's actions infringe on interState and 
international commerce. That is why Wyoming, and other States, 
have joined together to take legal action against Washington 
State.
    The State of Washington's obstruction is about politics. It 
has nothing to do with clean water. The nine reasons that 
Washington used to deny certification had nothing to do with 
water quality. The State of Washington's own environmental 
impact study for the project found there would be no 
significant impacts to water quality.
    The State of New York has taken similar steps to block 
construction of natural gas pipelines. America is the world's 
No. 1 producer of natural gas. Pennsylvania has abundant 
supplies of this resource but New York is blocking gas pipeline 
projects which would supply States in New England.
    In January, power plants and utilities in New England had 
to take the dramatic and drastic step of importing liquefied 
natural gas from Russia to meet their energy demands. It makes 
no sense for America to import liquefied natural gas from our 
adversaries, Russia, when we have that resource right here at 
home.
    Using the Clean Water Act simply to delay important 
projects was clearly not what Congress had in mind when 
Congress passed the law. That is why I, along with Senators 
Capito, Inhofe, Daines, and Enzi, sponsored the Water Quality 
Certification Improvement Act of 2018.
    The bill amends Section 401 of the Clean Water Act to 
clarify the appropriate scope of review for a water quality 
certification. It clarifies that these reviews are limited to 
water quality impacts only. It would also put in place 
procedural guardrails and notice requirements to prevent future 
abuses.
    Under our legislation, States, when evaluating water 
quality, can only consider discharges from the federally 
permitted or licensed activity itself, not from other unrelated 
sources. No longer will a State be able to abuse this authority 
in order to stop a project from moving forward.
    This bill is commonsense legislation to clarify current 
law, ensure a more predictable permitting process, and to 
prevent costly delays. Our legislation defends interState 
commerce and returns the certification process to what it was 
originally designed for, to protect the quality of America's 
water.
    Before I introduce our witnesses for today, I would now 
like to turn to Senator Gillibrand for her remarks.

       OPENING STATEMENT OF HON. KIRSTEN E. GILLIBRAND, 
             U.S SENATOR FROM THE STATE OF NEW YORK

    Senator Gillibrand. Thank you, Mr. Chairman.
    I join you in welcoming our witnesses here today and our 
colleague, Steve Daines.
    When it comes to protecting the environment, we have a 
solemn responsibility to do everything we can to protect clean 
water. Unfortunately, the bill we are hearing testimony on 
today, the Water Quality Certification Improvement Act of 2018, 
would fundamentally alter the role States have in permitting 
projects that cross rivers, streams and wetlands.
    The bill substantially robs States of the rights they 
exercise under the Clean Water Act and abandons the cooperative 
federalism approach that has been a centerpiece of Federal 
environmental law.
    Do not just take my word for it. The Western Governors 
Association and nine other organizations representing State 
governments wrote a letter last week raising concerns with the 
legislative approach.
    They wrote ``We urge Congress to reject any legislative or 
administrative effort that would diminish, impair or 
subordinate States' ability to manage or protect water quality 
within their own boundaries.'' The bill we are discussing today 
would do just that.
    I ask unanimous consent to submit their letter for the 
record.
    Senator Barrasso. Without objection.
    [The referenced information follows:]
    
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    Senator Gillibrand. Thank you.
    I also ask to submit for the record a letter from the New 
York State Department of Environmental Conservation and the 
State Attorney General's Office. Those offices State that this 
bill would ``curtail and limit the authority of New York and 
other States to protect their own water quality resources and 
the health, safety and welfare of their residents.
    ``Put another way, the Improvement Act undermines the 
balanced cooperative federalism intended by Congress in the 
Clean Water Act.''
    I ask unanimous consent.
    Senator Barrasso. Without objection.
    [The referenced information follows:]
    
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    Senator Gillibrand. Thank you.
    InterState pipeline projects often traverse hundreds or 
even thousands of miles, cross hundreds more streams and impact 
wetlands in ways to have a cumulative impact on the ability of 
the State to meet its water quality standards.
    Some critics have pointed to a handful of high profile 
examples where States denied Section 401 certification for 
major interState projects. They argue that the States are 
abusing their role by issuing denials and therefore, the 
State's role should be restricted.
    Those assertions ignore the fact that New York State has 
denied Section 401 certification only in those instances where 
the project failed to demonstrate compliance with water quality 
standards or failed to provide sufficient information to 
demonstrate compliance.
    In 2017, New York State issued approximately 99.9 percent 
of all requested water quality certifications. Congress 
intended for States to have significant authority to protect 
their water quality under the Clean Water Act by setting 
standards more stringent than those set by the Federal 
Government. States have a responsibility to make sure those 
standards are enforced by setting conditions on federally 
permitted activities to protect State water quality.
    I am concerned that the changes to the Section 401 
certification process envisioned in the bill would create a 
situation where applicants are given Federal permits to violate 
State water quality standards. That should not happen.
    I am also concerned that this bill would set an arbitrary 
and unrealistic 90-day timeline for States to determine whether 
an application is complete. This is inconsistent with State and 
Federal practices and ignores the fact that these projects 
often change during the course of the review requiring new or 
different information.
    Additionally, the bill would prevent States from denying 
water quality certifications if an applicant fails to provide 
adequate information to the State. This is a heavy-handed 
approach designed to force States into approving potentially 
risky projects.
    It punishes States for making decisions that some of my 
colleagues do not like undermining the State's role in trying 
the Clean Water Act and repeatedly upheld by the courts. This 
is not cooperative federalism. We should be listening to our 
States and working with them not against them.
    Mr. Chairman, before I finish, I would like to ask 
unanimous consent to submit Ranking Member Carper's statement 
for the record.
    Senator Barrasso. Without objection.
    [The prepared statement of Senator Carper follows:]
    
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    Senator Gillibrand. I yield back.
    Thank you.
    Senator Barrasso. Thank you very much, Senator Gillibrand.
    Also along the same lines, Senator Inhofe is unable to be 
here today. I want to thank him for his support of S. 3303. I 
ask unanimous consent to enter his statement for today's 
hearing into the record.
    Without objection, it will be entered.
    [The prepared statement of Senator Inhofe follows:]
    
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    Senator Barrasso. Additionally, there was reference to the 
Western Governors Association and their comments. We did visit 
with Todd Parfitt who is the Director of the Wyoming Department 
of Environmental Quality regarding this piece of legislation. 
He said he ``recognizes the State's role in protecting water 
quality under the principles of cooperative federalism,'' which 
is what the Western Governors Association has said.
    He goes on to say ``This bill does not erode States' 
ability to protect water quality under Section 401.''
    With that, I would like to welcome my friend, Senator 
Daines, to the committee. Senator Daines, we are very grateful 
that you joined us. Thank you for your partnership in 
introducing the Water Quality Certification Improvement Act.
    We welcome you to discuss the bill and introduce Mr. CJ 
Stewart who hails from Montana.

            OPENING STATEMENT OF HON. STEVE DAINES, 
             U.S SENATOR FROM THE STATE OF MONTANA

    Senator Daines. Chairman Barrasso and Senator Gillibrand, 
thank you for inviting me here today to introduce a very 
special guest from Montana.
    CJ Stewart joins us today from the Crow Tribe in Montana. 
He is also Senator CJ Stewart. I knew CJ when he was a Senator 
who served 8 years as a Senator for the Crow Nation legislative 
branch.
    He is an active and strong voice in his community and 
currently leads the National Tribal Energy Association. Mr. 
Stewart brings a very unique voice from Indian Country to the 
table during these discussions.
    For perspective, on the Crow Reservation, the unemployment 
rate there is around 70 percent. When you engage with the 
people of the Crow Nation, they are pleading with us here in 
Washington to allow them to develop their natural resources and 
to provide opportunities and jobs for their people.
    These jobs related to coal are critical. The unemployment 
rate has gone up because they have lost some of these critical 
coal mining jobs.
    For those who are skeptics about what happens when we mine 
coal in Montana, I would invite you to come out sometime and 
see what reclamation looks like, how literally they restore the 
grounds with the original topography and grasslands. We are now 
seeing elk moving into these reclaimed areas, as well as mule 
deer, sage grouse and other native species.
    As a member of the Crow Tribe, Mr. Stewart has firsthand 
experience in how Section 401 of the Clean Water Act has been 
abused and has hurt our communities throughout Montana.
    Speaking of clean water, literally a week ago today at this 
very moment, I had a fly rod in my hand with my wife, Cindy, 
and our two dogs far in the Beartooth Absaroka wilderness of 
Montana. We hiked in about 12 miles.
    There was not a boot print or a trail where we were, 
fishing for Yellowstone Cutthroat Trout with a little elk hair 
cactus.
    I point that out because it is called the Baretooth 
Absaroka Wilderness. Absaroka is actually a word that ties back 
to the Crow Tribe. They are called the Apsaalooke people. We 
derive Absaroka from that. Today, if you look on a map, you 
will see the Baretooth Absaroka Wilderness. These were the 
original grounds of the Apsaalooke people.
    I discussed this with CJ earlier, this beautiful, pristine, 
clean water related to the Absaroka or the Absaalooke. They are 
called people of the large beak bird or the Crow Tribe, when 
you do a little translation. They know all about clean water, 
they cherish it.
    Mr. Stewart has firsthand experience of how Section 401 of 
the Clean Water Act has been abused and hurt communities. The 
Crow Tribe is home to and surrounded by large coal deposits and 
the community has fought hard to bring high-paying energy jobs 
to their members.
    This coal can be responsibly mined and can be responsibly 
exported to our Allies in the Asian Pacific. As the Chairman 
mentioned, Powder River Basin coal is Montana coal.
    By the way, Montana has more recoverable coal than any 
State in the United States. You do not think about Montana as 
being a coal State. For those who do not understand our State, 
we are No. 1 in coal reserves in the Nation.
    The reason our coal makes sense is because as we see what 
is going on in Asia, they are going to burn the coal but 
Montana coal, Wyoming coal, Powder River Basin coal is more 
environmentally sound and has a lower sulfur content. It is the 
right thing to do as relates to global stewardship of the 
environment versus Indonesian coal and Australian coal.
    Japan wants our coal. Montana and the Crow Tribe can 
produce that coal. Unfortunately, while we are blessed with 
mountains and prairies, Montana does not have a coastline. We, 
therefore, depend on other States to get our resources to 
market.
    That is why it is so important that we are having this 
hearing here today on legislation that Chairman Barrasso, other 
members of this committee, and I introduced. The Water Quality 
Certification Improvement Act simply clarifies that Section 401 
certification should be based on clean water standards.
    As part of the Clean Water Act, Section 401 should apply to 
clean water, not rail traffic or other unrelated issues, and, 
more importantly, should not be used for political reasons. I 
believe this is an important bill that will continue to give 
States a voice while also making sure certificates are based on 
the best available science.
    I look forward to hearing more from this committee and my 
friend and Montana Native. Let me say there are Montana natives 
and then there are Montana Natives. That is my friend, CJ 
Stewart.
    Again, thank you, Chairman Barrasso, for allowing me to be 
here today. Thank you for bringing Mr. Stewart to Washington, 
DC. to discuss the important impacts to our State and, 
importantly, our tribal communities.
    Senator Barrasso. Thank you, so much, Senator Daines. You 
are welcome to join us for as long as you are able. I know you 
have additional obligations on your schedule but we appreciate 
you being here with us today.
    I would now invite all of the witnesses to please join us 
at the witness table. First, we have Mr. CJ Stewart, Board 
Director of the National Tribal Energy Association. We also 
have Mr. Brent Booker, Secretary-Treasurer of the North 
America's Building Trades Unions and Mr. Anthony Willardson, 
Executive Director of the Western States Water Council.
    We want to welcome all the witnesses and remind you that 
your full written testimony will be made a part of the 
original, official hearing record today. We would ask that you 
please keep your statements to 5 minutes so that we have time 
for questions. We have quite a number of Senators here 
interested in hearing what you have to say and asking 
questions.
    I look forward to hearing your testimony beginning with Mr. 
Stewart. Mr. Stewart, please proceed.

STATEMENT OF CJ STEWART, BOARD DIRECTOR, NATIONAL TRIBAL ENERGY 
                          ASSOCIATION

    Mr. Stewart. Thank you, Chairman Barrasso, Ranking Member 
Carper, and members of the Environment and Public Works 
Committee.
    I appreciate the invitation and the opportunity to testify 
before this committee on examining implementation of Clean 
Water Act, Section 401 and your accompanying legislation.
    My name is CJ Stewart. I am a Crow Tribal member, a board 
member and co-founder of the National Tribal Energy 
Association, NTEA. NTEA advocates for both tribes and industry 
to promote healthy and sustainable energy economies on Native 
American lands.
    I am also currently in private practice as an energy 
consultant for Indian energy development and infrastructure. I 
previously served two terms as a Senator for the Crow 
legislative branch and as Chairman of the Crow Natural Resource 
& Infrastructure Development Committees from 2007 through 2015.
    In 2016, at the request of Chairman Darrin Old Coyote, 21st 
Chairman of the Crow Nation, I held the position of Crow Nation 
Energy Advisor and Legislative Liaison. During this time, I was 
also appointed as Vice Chairman of Congressman Ryan Zinke's 
Natural Resource Advisory Committee.
    Last, I worked for 10 years as a union coal miner hauling 
Crow coal and was the first Native American to be appointed to 
serve on the Montana Coal Board, where I was voted Vice 
Chairman.
    Tribal economies face many obstacles to success, and 
currently the economy of the Crow Tribe is facing a critical 
crisis. While we are blessed with untold mineral wealth in oil, 
coal, and gas on the Crow reservation, regulatory roadblocks 
and political crises force us to languish in poverty.
    The tribe currently has an unemployment rate of 70 percent 
or more and hopelessness is beginning to cast a shadow where 
there was once hope for a vibrant and prosperous future. 
Imagine having a trillion dollars in mineral wealth under your 
feet and yet your people are starving and destitute before you. 
It is a cruel nightmare that could be avoided if not for the 
Clean Water Act being weaponized against the Crow Tribal 
resource economy and the Crow people and culture.
    Clean Water Act Section 401 was intended to provide States 
with a way to apply clean water quality protections to 
federally permitted activities. However, certain States have 
misused the process to block Crow economic projects for 
political reasons that have nothing to do with water quality.
    These States have hijacked the 401 certification process 
and used it as a means to interfere with tribal and 
international trade policy in violation of the Commerce Clause 
of the U.S. Constitution, including and specifically the Indian 
Commerce Clause.
    The economic prosperity of tribal communities throughout 
the Country is dependent on the flow of goods to port 
facilities that is unencumbered by physical, commercial, or 
political roadblocks. Surely the founding fathers saw the 
necessity of the Indian Commerce Clause for tribal Nations 
against hostile and racist actors, be they private or public, 
who bore animosity against Native peoples.
    Importantly, these laws were put in place to protect 
sovereign tribal economic activity, but recent and ongoing 
activity on the part of certain coastal States severely 
infringes on the rights of States and tribes without direct 
access to export facilities to engage in interState commerce.
    The Crow Nation is deeply respectful of the need for States 
and tribes to be able to protect their own waters from projects 
that would degrade water quality and infringe upon water use. 
We are also needful of the same respect in terms of our 
commercial endeavors including our sovereign resource 
development and commercialization.
    Unlike these aforementioned hostile actors who are so 
detrimental to the quality of life for the Crow people, we seek 
no power over or ill will toward them. We instead seek a 
legislative remedy that maintains equal and fair application of 
the law.
    The Water Quality Certification Improvement Act of 2018 is 
such a legislative remedy and does not inhibit the ability of 
States and tribes to enforce their water quality laws. Rather, 
it provides necessary transparency and clarity to the 401 
process, while preserving the central role of tribes and States 
in protecting local waterways.
    The U.S. holds more of the world's coal reserves than any 
other Country, and the coal mined by the Crow Nation is 
preferred by high efficiency, low emission power plants that 
are in operation and being built around the world. However, 
even though our coal resources provide a critical component of 
U.S. export trade, our ability to get our coal to fast-growing 
Asian markets is being hindered by States on the West Coast who 
continue to refuse to grant needed approvals to build state-of-
the-art export facilities for political, not water quality, 
reasons.
    The Water Quality Certification Improvement Act of 2018 
ensures that water quality certifications focus on their 
intended environmental purpose, the protection of local water 
bodies potentially impacted by federally licensed activities. 
It will therefore protect the health of local communities while 
simultaneously promoting the ability of tribes and land-locked 
States to exercise their right to engage in interState commerce 
and grow the economy.
    [The prepared statement of Mr. Stewart follows:]
    
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    Senator Barrasso. Mr. Stewart, thanks so much for being 
with us today. Thank you very much for sharing your testimony. 
After we hear from Mr. Booker, we will come back with some 
additional questions.
    Next, Mr. Booker, thank you very much for being with us 
today. We appreciate that you are here to testify.

STATEMENT OF BRENT BOOKER, SECRETARY-TREASURER, NORTH AMERICA'S 
                     BUILDING TRADES UNIONS

    Mr. Booker. Thank you, Mr. Chairman, Senator Carper and 
Senator Merkley for your leadership and continued efforts to 
address permitting reform.
    As Secretary Treasurer of North America's Building Trades 
Unions, and on behalf of the three million skilled construction 
workers I represent, thank you for allowing me to share with 
you the impacts of project delays on the hard-working men and 
women who build and maintain America's energy, water, and 
transportation infrastructure.
    NABTU is dedicated to creating economic security and 
employment opportunities for North American construction 
workers by safeguarding wage and benefits standards, promoting 
responsible private capital investments, investing in renown 
apprenticeship and training, and creating pathways to the 
middle class for women, communities of color and military 
veterans in the construction industry.
    Because of these efforts, and others, collectively amongst 
all 14 NABTU affiliates, more than $1 billion dollars is spent 
annually on apprenticeship training at 1,600 domestic training 
centers. We now boast 135 apprenticeship programs to ready 
students for the academic and real-world challenges of being a 
union apprentice.
    North America's Building Trades Unions support responsible 
regulations that protect the environment, public health and 
worker safety. We believe they are critical to responsible 
infrastructure development that lasts for decades and allows 
for future generations to use these invaluable assets.
    What is concerning, however, is the tactic of project 
opponents using a constant stream of endless lawsuits to delay 
a project because they cannot defeat a project on the merits of 
the project itself. When projects are tied up or delayed 
because of court proceedings, not only are critical American 
infrastructure projects stalled, but also our members are not 
working, they are not putting food on the table, they are not 
providing for their families and they are not participating and 
contributing to the local economy.
    In the Northeast region, this is the reality. Union 
construction workers stand ready to build necessary pipeline 
infrastructure to deliver Marcellus Shale natural gas to 
utilities, industry, critical infrastructure like our schools 
and hospitals, and most importantly, to our consumers. The 
region's notoriously high energy prices have met a perfect 
storm in the form of inadequate natural gas infrastructure 
being coupled with the delay of the Constitution and Northern 
Access Pipeline projects.
    ISO New England recently highlighted that four gigawatts of 
natural gas-fired generation capacity, 24 percent of the 
region's gas-fired net winter capacity, was at risk of not 
being able to get fuel when needed. A safe, modern, and 
affordable solution, the Constitution pipeline, was delayed 
from being built after already receiving FERC approval. This 
permit denial is still delaying about 2,400 direct and indirect 
jobs from the pipeline construction generating $130 million in 
labor income and economic activity for the region.
    The decision continues to cost local governments 
approximately $13 million in annual property tax revenue. 
Unfortunately, the Clean Water Act Section 401 permitting 
process has resulted in needless uncertainty. This can stymie 
approval for years, or worse, halt a half-completed 
construction project in its tracks.
    By some estimates, a 6-year delay in starting construction 
on public works, including the effects of unnecessary pollution 
and prolonged inefficiencies, costs the Nation over $3.7 
trillion. Let me be clear. When lawsuits aimed squarely at 
killing projects are brought forth for politically motivated 
reasons, it hinders our ability to create jobs and prepare the 
next generation of construction workers for tomorrow.
    These unnecessary delays thwart needed infrastructure 
progress, and impede NABTU members from working and earning a 
paycheck. We must have regulatory certainty and predictability.
    North America's Building Trades Unions strongly supported 
the FAST-41 reforms because they lead us toward a path of 
standardization and finality in the permitting process. We have 
supported the thoughtful steps taken to reform the system while 
maintaining the underlying regulations that protect the health 
and safety of our members on the jobsite and the environmental 
and human impacts of projects on communities across the 
Country.
    We will continue to be engaged with Congress and Federal 
agencies as sensible regulatory reforms are identified and 
implemented. Case in point, the reforms made by S. 3303 
requiring States to tell an applicant whether they have all the 
materials needed to process a certification is commonsense.
    The clarification that the scope of a Section 401 review is 
limited to only water quality impacts needs no explanation. We 
support reforms that reign in the legal challenges while 
thoughtfully protecting the environment, the public, and worker 
safety on the job.
    On behalf of NABTU, our affiliates, and our 3 million 
members, thank you for the opportunity to testify. I look 
forward to any questions you may have.
    [The prepared statement of Mr. Booker follows:]
    
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    Senator Barrasso. Thank you very much, Mr. Booker, as well 
as Mr. Stewart. We appreciate you being here. We will see if 
Mr. Willardson is able to arrive.
    If I could, I will start with some questions for Mr. 
Stewart. In your testimony, you talked about some of the real 
world impacts from not being able to use the tremendous natural 
resources that we have in America, specifically in Indian 
Country. The Seattle Times newspaper reported that the 
Millennium Bulk Terminal project would bring $680 million in 
investments to Cowlitz County alone, the Washington county 
where the terminal project would be located.
    What has the delay of this bulk terminal project done to 
the hardworking people in Indian Country and in States outside 
of Washington State such as your own?
    Mr. Stewart. First of all, Mr. Chairman, I appreciate the 
question.
    The delay of the permitting of the Millennium Bulk Terminal 
has cost loss of Federal, State and tribal mineral taxes, 
caused the loss of countless high-paying and highly skilled 
jobs which pay income and sales taxes in Montana, Wyoming, 
Colorado, Utah and other western States.
    It has caused the loss of new equipment services for the 
ongoing management and expansion of mines which in turn have 
caused more losses in taxes at all levels. It has had a direct 
impact on the Crow Nation which has lost the opportunity to 
mine, sell and tax millions of dollars of coal over the years 
which has negatively impacted tribal education, housing, health 
and other services, but more importantly, jobs. Mr. Chairman, 
it is jobs.
    Senator Barrasso. Thank you very much, Mr. Stewart.
    Mr. Booker, during the cold snap last winter when 
Massachusetts imported liquefied natural gas from Russia to 
meet its energy needs, Massachusetts took a dramatic step 
because like other New England States, it has insufficient 
pipeline capacity to import gas from nearby States like 
Pennsylvania or trying to move it there. They just do not have 
the pipeline capacity to do it.
    The Boston Globe wrote, ``The environmental toll this year 
was eye-popping. Greenhouse gas pollution exploded during this 
winter's cold snap, leaving generators to burn 2 million 
barrels of oil.'' Because they could not get natural gas 
through the pipeline, they went to oil.
    The lack of pipeline capacity is causing real harm to the 
environment as well as to energy security, as well as to the 
economy. Could you talk a bit about how Section 401 has delayed 
gas pipeline projects such as the Constitution Pipeline in New 
York from moving forward? Are you concerned about the negative 
environmental impacts?
    Mr. Booker. Yes, thank you for the question, Mr. Chairman.
    For us, what you just described is what we are trying to 
prevent, importing natural gas from Russia or from other places 
outside of this Country to keep our houses warm and keep our 
businesses open and running.
    When you have impacts and people using Section 401 not for 
what it is intended for, delaying these critical 
infrastructures and pipelines, the immediate impact, as Mr. 
Stewart mentioned, is the jobs and for me, the people I 
represent to go to work.
    The further consequence is the environmental impact of 
burning heating oil rather than burning clean, natural gas 
which is a domestic resource which we are burying the market 
not only in this Country but globally through LNG exports.
    By having these delays and not having the needed 
infrastructure we have or that we need in the Northeast, we are 
further damaging the environment while we are not creating jobs 
that are absolutely needed in the Northeast and all over the 
Country.
    Senator Barrasso. Mr. Stewart, when the State of Washington 
denied the water quality certification for the Millennium Bulk 
Project, it claimed there would be environmental harm, but the 
State of Washington's own consultant concluded there would be a 
net environmental benefit in terms of emissions.
    The consultant found that the mining and export of coal in 
America for use in Asia through the terminal would reduce 
greenhouse gas emissions globally over time. I would like to 
introduce a report into the record of today's hearing. It is a 
substantive report. Without objection, it will be submitted.
    [The referenced information follows:]
    
    
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    Senator Barrasso. Can you talk a bit about how the export 
of American energy can actually improve, not reduce, 
environmental protection?
    Mr. Stewart. In general, when you talk about how it will 
improve the economy, look at Native America. We are the most 
regulated ethnic body on the face of God's green earth. We live 
in our areas for all perpetuity and we are going to continue to 
live there. We are not going to allow pollution to be something 
that will ruin our land, water and air.
    When we are developing our resources, we make sure that our 
resources are developed in a responsible manner. I would rather 
have a better regulated product here in the United States than 
have to import unregulated product coming from someplace else.
    With all due respect, Mr. Chairman, when you are closing 
the door on our ability to send out our product, what doors are 
the NGO's and States leaving open?
    Senator Barrasso. Thank you, Mr. Stewart.
    I would like to welcome Mr. Anthony Willardson who has 
joined us. We are delighted to have you. He is Executive 
Director of the Western States Water Council. If it is 
appropriate, at this time, I would like to hear your testimony.

 STATEMENT OF ANTHONY WILLARDSON, EXECUTIVE DIRECTOR, WESTERN 
                      STATES WATER COUNCIL

    Mr. Willardson. Thank you, Senator. I apologize for being 
tardy. I had a misunderstanding of the beginning of the 
hearing.
    We want to thank you, Mr. Chairman, Senator Carper and also 
the other members of the committee for this opportunity to 
testify on the importance of the Clean Water Act Section 401 
Certification Authority to the States.
    We also appreciate your leadership on issues of water and 
public works as well as balancing environmental and economic 
interests, as well as balancing two Federal policies and 
programs and the role of our States in our Federalist system.
    Federal agencies need to work together with the States. I 
would like to mention that we have a Western Federal Agencies 
Support Team with 12 agencies that work with the council on 
water policy issues. Our current, new Federal liaison will be 
John D'Antonio with the Army Corps of Engineers.
    I would also like to mention that Congress has, in the 
past, recognized and deferred to the primary authority of the 
States to allocate their water resources as well as to 
appropriate, develop, conserve and protect those resources, 
both surface and in-groundwater, as well as water quality 
instream flows and protect aquatic species.
    Section 8 of the Reclamation Act, Section 10 of the Federal 
Power Act, Section 101(g) and Section 101(b) as well as Section 
401 all speak to State authorities.
    The council supports the appropriate streamlining of 
permitting and processes, as well as the coordination of 
environmental and regulatory reviews to eliminate duplication 
where we can and reduce costs as well as reducing the cost of 
compliance, construction and ensure timely permitting 
processes.
    The West enjoys a diverse and abundant stock of natural, 
renewable and non-renewable energy resources but water is often 
scarce. The Council has specifically supported Federal 
legislative and administrative actions to authorize and 
implement reasonable hydropower projects. That is the area 
where we have the most experience with Section 401 consistent 
with State law and regulatory authorities.
    The Federal Power Act, Section 27, declares that ``Nothing 
herein contained shall be construed as affecting or intending 
to affect or in any way interfere with the laws of the 
respective States related to the control, appropriation, use or 
distribution of water.'' In California v. FERC, the State 
claimed authority to supplement minimum stream flows required 
by FERC. As I am sure you are aware, 49 States signed an amicus 
brief before the Supreme Court. We lost 9 to 0 in that case.
    It was only 5 years later that in a case in the State of 
Washington over 401 that the Supreme Court restored authority 
to the States to mandate minimum bypass flows. That has been 
particularly important to the States since then.
    At the time, the Supreme Court mentioned that Congress 
could change what they had done. We have supported legislation 
to assure that all applicants for hydropower licenses comply 
with States' substantive and procedural law, and that this was 
the original intent of Congress.
    As Congress again considered legislation, the Supreme Court 
made changes to the way Section 401 has been applied. Again, in 
2006, the Court recognized that 401 certification authority 
applied to more than just discharges under the Clean Water Act.
    As I am sure you know, Section 101(g) was sponsored by 
Senator Malcolm Wallop of Wyoming who was a champion of 
regulatory efficiency and State water rights. In 2004, the 
council conducted a survey looking at the processes our States 
use for issuing 401 certifications and what, if anything, may 
amount to delays. The consensus of those States was that 
certification alone is not an obstacle to timely Federal 
permitting and, in most cases the majority of requests were 
processed within 40 to 90 days.
    The delays were typically due to the submission of an 
incomplete application, not responding to the State's request 
for more information, incomplete study requirements or failing 
to comment on proposed project conditions. Substantive changes 
can happen.
    We appreciate the opportunity to be here to testify on this 
issue and look forward to working with you, Senator, as Chair, 
and other members of the committee. Improvements can be made. 
We are willing to work with you on that.
    I would suggest one first step is to consult with the 
States early and often. I think some of those entities have 
already expressed their opinion here as far as the Coalition of 
Western Governors, attorney generals, legislators and other 
State and wetland agencies.
    Thank you.
    [The prepared statement of Mr. Willardson follows:]
    
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    Senator Barrasso. Thank you very much, Mr. Willardson. We 
are grateful you had the opportunity to testify today. We 
appreciate your words.
    I have one question. Washington State cited reasons 
unrelated to water when it denied the water quality 
certification for the Millennium Bulk Terminal project. Do you 
agree Section 401 is about water quality, not about air 
emissions, noise or other non-water related impacts?
    Mr. Willardson. Section 401 is about water quality and not 
the other impacts. My understanding of that decision is that 
there were a number of other considerations included that came 
from the environmental impact statement.
    It was denied with prejudice given they thought the impacts 
on water quality were clear and could not be mitigated.
    Senator Barrasso. Thank you, Mr. Willardson.
    Senator Merkley.
    Senator Merkley. Thank you, Mr. Chairman. Thank you all for 
your testimony.
    On behalf of Ranking Member Carper, who is not here, I ask 
unanimous consent to submit letters and other materials for the 
record, including opposition letters from the following: the 
State of Maryland, Office of the Attorney General; the 
Environmental Council of the States; the Association of Clean 
Water Administrators; the Association of State Wetland 
Managers; a 139-member Coalition of Environmental River Keeper 
Groups; and the State of Washington Department of Ecology.
    Senator Barrasso. Without objection.
    [The referenced information follows:]
    
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    Senator Merkley. Thank you.
    Mr. Willardson, I understand that projects are often denied 
certification due to the lack of communication with key 
stakeholders. You mentioned incomplete applications being 
submitted or incomplete responses to requests for information. 
Were you using that as the primary reason there are delays in 
the process?
    Mr. Willardson. Only one of the reasons. From a State 
perspective, there are challenges related to staffing and 
staffing turnover. States have made adjustments. I know of at 
least one State that now assigns two people to work on any 
particular FERC licensing or relicensing given the length of 
time and the potential for turnover.
    Senator Merkley. At least a significant share? I thought 
perhaps from your testimony that the majority of the 401 
certification delays were the result of incomplete applications 
being submitted? Is that correct or incorrect?
    Mr. Willardson. That is correct. Where States have not been 
able to act in a timely manner, it is largely because the 
information has been received or not received.
    Senator Merkley. That is something that certainly can be 
addressed within the existing law?
    Mr. Willardson. Yes. I think another area of interest 
obviously is the definition of one certification is requested. 
In the past, States were disappointed that the Federal Energy 
Regulatory Commission, on a hydropower issue, unilaterally 
tolled the time for the State to act in over 200 projects.
    Since then, States have either denied up front a project 
that came in with an incomplete application as opposed to 
waiting until the end of the 1-year tolling period currently 
available under the law.
    Senator Merkley. To expedite the process. You mentioned 
hydropower and that is a big deal in my State. We have a lot of 
dams. We have dams coming out that no longer serve existing 
purposes; that enhance fish passage; dams going in or 
hydropower going in on existing dams; electric generation; 
fisheries; recreation, many things that affect the local 
economy that people care a great deal about.
    Are you aware of any hydropower projects in Oregon that 
have had significant problems with their 401 certifications?
    Mr. Willardson. I am not.
    Senator Merkley. The types of things that Oregon has 
addressed to complement the Federal regulation have been things 
like protections for wetlands, shoreline regulation, water 
temperature, acidity, turbidity, levels of instream flow which 
can be essential downstream both to temperature, fish passage 
and water being drawn for drinking water, sediment excavation 
deposit, bacteria levels, dissolved oxygen and dissolved 
nitrogen, algae growth, chemical and waste management, data 
collection, public reporting transparency which is very 
important to the stakeholders in our State so we really know 
what is going on, and instream water construction procedures 
that affect all of the above.
    Are those appropriate types of things for the public to be 
concerned about in terms of recreation activities, the health 
of the streams, fish passage and so forth?
    Mr. Willardson. Yes, there are many components related to 
water quality and protecting water quality more than just 
discharges under Section 402. Many of the States deal with 
those under not only the Federal law, but, as the law currently 
allows, under applicable State law. Oregon is one of the States 
that has its own Federal hydropower licensing process.
    Senator Merkley. When we talk about discharge, is it clear 
that, as rewritten, discharge would encompass the impact on 
discharge during the process of construction as well as upon 
completion of the project?
    Mr. Willardson. I think in addition to just discharge, it 
does take many forms, the alteration of the bed and banks 
obviously are included, but the bypass flows themselves. As I 
said, most of our experience has been with bypass flows and the 
Federal Energy Regulatory Commission.
    Maintaining those flows is important to water quality 
standards, total maximum daily loads and other components of 
the Act. Yes, there are many components.
    Senator Merkley. Many components that might not be directly 
covered by just the word ``discharge'' or at least there would 
be a huge amount of lawsuits and adjudication to try to 
determine what discharge and how broad that is?
    Mr. Willardson. It would not be covered, in my opinion, by 
discharge.
    Senator Merkley. Thank you.
    Senator Barrasso. Senator Capito.
    Senator Capito. Thank you, Mr. Chairman. I want to thank 
the Chairman for his willingness to work with me in developing 
this legislation.
    I thank the witnesses for being here today.
    Mr. Stewart, I come from West Virginia, a proud, coal-
mining State. I want to thank you for your years of coal 
mining. I know it is a tough job. I appreciate you coming today 
to give us your perspective.
    I notice you are a member of the union, the MWA, I would 
suppose?
    Mr. Stewart. It was Local 400 in Montana.
    Senator Capito. They are good friends of mine.
    Mr. Stewart. IUOE.
    Senator Capito. Yes, thank you.
    I would like to talk a little bit about some of the 
testimony we have already had today. Mr. Booker, you mentioned 
more than once in your testimony the importance of certainty 
around the regulatory process.
    In West Virginia, this has been a challenge for us. We have 
three pipelines that have been permitted that are now on hold, 
not through the 401 process, but with FERC. You might have been 
following that.
    I am going to start with that question. What does that 
uncertainty do to your members and membership? It also has to 
have some sort of residual impact as to your apprenticeships 
and who wants to get into the business of building and 
constructing when you don't know if you are going to be coming 
or going with the uncertainty of permitting and the regulatory.
    Encompassing the 401 uncertainty, how are you seeing this 
play out in terms of these pipelines we are seeing put on hold 
right now?
    Mr. Booker. The simple answer is people are not going to 
work. They are not earning a paycheck, are not able to provide 
for their families, and not able to support the local economy 
and participate in the local economy.
    Specific to your question on training, we pride ourselves 
in our training. We invest a billion dollars a year in 
training. We have training centers in every State of this 
Country, multiples in every State of this Country.
    We also have apprenticeship readiness programs where we try 
to appeal to under-served communities, whether it is veterans 
through our Helmets to Hard Hats Programs, women, people of 
color, to bring them into the construction industry. It is not 
an easy career. You have the ebbs and flows.
    When you take away the predictability of the permitting 
process, it adds more unpredictability or more uncertainty to 
that. That means people are not going to work every day. Our 
training is based on working through the week, and taking 
classes at night as you graduate your levels of apprenticeship.
    If you are not working, you are not getting enough hours to 
graduate your apprenticeship, gain the skills you need to be a 
journeyman or whatever craft you come from. It has a 
devastating effect on the growth of the future work force for 
us and to be able to keep our training centers operating.
    Senator Capito. Absolutely.
    Mr. Stewart, I feel this daily living in a State like ours 
that has quite a bit of coal mining, we live there, we breathe 
the air, we drink the water, we fish, we recreate in our areas, 
as you mentioned in your testimony, where you live. In my view, 
if there are any people more environmentally sensitive to their 
area, it is the people who live there. Striking that balance 
between working, the economy and the environment where you 
live, breathe and raise your family and your children go to 
school, I think is difficult.
    If you could speak a little bit to the frustration, as you 
did in your opening statement, you feel that you cannot get out 
your message to say how impactful this is to you all and also, 
how deeply you feel about the environment you live in and are 
surrounded by.
    Mr. Stewart. I appreciate the question, Senator Capito.
    Coal mining is a brotherhood. It takes a special breed to 
be in the middle of the night sitting on a piece of equipment 
in the middle of nowhere on the mine site eating out of a box 
at lunchtime or in the middle of the day, when it is ice cold 
outside or else in burning heat.
    You are sitting there running a shift whether on a dozer, 
truck or a piece of equipment, a dragline, whatever the case, 
but you are alone. You have a lot to think about. I also ran 
the reclamation dozer so I do a lot of the reclamation.
    Senator Capito. Which is the environmental restoration of 
mining.
    Mr. Stewart. Doing the reclamation side of areas of the 
mine. Coming from my previous life as an equipment operator 
when I was first taken out there and asked to do an interview 
to apply for the position, I did not know where it started or 
where it ended. The reclamation was so great, it was beautiful.
    I say it is almost kind of like a zoo because you see the 
best looking out there, you see the best looking deer. I don't 
care what anybody says, there are deer right there on the rail 
spur eating the grass right next to the rail.
    I lived by the railroad tracks, maybe half a mile from the 
railroad next to I-90, for 44 years, all my life. It is a 
brotherhood. First and foremost, we help each other so we can 
come home safe so we are able to provide for our families and 
we take care of each other.
    Senator Capito. Thank you.
    Senator Barrasso. Thank you, Senator Capito.
    Senator Van Hollen.
    Senator Van Hollen. Thank you, Mr. Chairman.
    Welcome to all the witnesses.
    A few weeks ago we had a hearing on legislation dealing 
with the Endangered Species Act. That legislation proposed to 
give the States more authority on the grounds that the States 
were in a better position to understand some of the local 
concerns. Now we have a piece of legislation that wants to take 
away authority from States when it comes to making some of 
these decisions.
    There has been a lot of focus on the pipeline issue. Also, 
this legislation will have a negative impact in many other 
scenarios. For example, with respect to the Chesapeake Bay and 
protecting the waters that flow into the Chesapeake Bay, there 
is a dam on the Susquehanna River called the Conowingo Dam 
which is run by Exelon.
    As I read this legislation, it would prohibit the State of 
Maryland from doing something we have done for a very long time 
which is, as part of that permitting process for the dam under 
401 authority, required Exelon to provide, for example, fish 
passage because the dam interrupts fish migration up the river.
    That has never been an issue. However, this legislation 
would take away the authority of the State of Maryland or other 
States to make that a condition. I would like to have all of 
your views on this starting with Mr. Willardson.
    Mr. Willardson. I think it would definitely reduce the 
State's authority to require minimum bypass flows or require 
releases from the dam to protect downstream water quality as 
well as aquatic species.
    As far as the fish passage, that would be more related to 
the Interior and those authorities where they can mandate, 
under the Federal Power Act, fish passage facilities. It would 
definitely reduce State authorities.
    Senator Van Hollen. With respect to sediment flow, another 
issue is when you put up a dam; it can have an impact on 
sediment which obviously can have an effect on waters as they 
go into the Chesapeake Bay.
    Sometimes it captures and traps sediment, but when you have 
major storms, it has this overflow impact. As I read this, it 
would also take away the authority of a State to tie permitting 
for a dam project, for example, to the impact on sediment 
flows. Is that how you read it?
    Mr. Willardson. It obviously would limit it to discharges 
and however that might be defined in the future. There are many 
components besides discharges that impact water quality. We 
have been very strong proponents of the States' authority to 
regulate their water, both quantity and quality to meet their 
goals.
    Senator Van Hollen. To the other gentlemen, you focused 
your comments on pipelines and I understand that testimony. It 
is not your intention, is it, to deprive States of the 
authority to require, for example, fish passage mechanisms as 
part of permitting for hydroelectric projects like a dam, is 
it?
    Mr. Booker. No, that is correct. We support regulation but 
I think the current way the system has been, my testimony 
speaking specifically to the pipelines and Mr. Stewart's with 
the coal export, is that has been abused and misused to go 
beyond that which has caused these delays.
    Senator Van Hollen. We can have an argument on the merits 
of what both you gentlemen talked about, but my concern is, as 
I read it, Mr. Chairman, that this is much broader in scope and 
impact and would deprive States of tools they have been using 
for a very long time or may reasonably want to use when it 
comes to things like sediment flows and things like that around 
the Conowingo Dam.
    I look forward to continuing the conversation with all of 
you and the Chairman on that. Thank you.
    Senator Barrasso. Thank you very much, Senator Van Hollen.
    My view on this is that the permitting process now has been 
weaponized to pick winners and losers. The State of Washington 
is acting in this case like the Secretary of State, the 
Secretary of Commerce, and the U.S. Trade Rep in trying to 
decide single-handedly what our Country is permitted to export.
    As a result that there are six Attorney Generals from 
Wyoming, Kansas, Montana, Nebraska, South Dakota, Utah who are 
supporting the Millennium Bulk Project in litigation against 
the State of Washington. The State is preventing important 
interState commerce, violation of the Constitution.
    I ask unanimous consent to enter their brief into the 
record.
    [The referenced information follows:]
    
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    Senator Barrasso. Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    Mr. Stewart, thank you for your testimony this morning. I 
appreciate you appearing before our committee and sharing your 
experience about the challenges facing our States and 
constituents as a result of that cumbersome red tape and the 
needless delays we see under Section 401 and that process. It 
is due to reasons unrelated to water quality concerns.
    Nebraska is the only triple land-locked State in the 
Nation. With an ag economy of $21.5 billion annually and a 
population of 1.9 million people, you can see how important it 
is for my State to export our high quality agriculture products 
around the globe.
    To do so, Nebraska producers depend on ports. We depend on 
those ports located along our Nation's coastlines. However, 
when States with antigrowth agendas can unilaterally determine 
what commodities get to be exported as the result of project 
delays that are unrelated to water quality issues that raises 
concerns. Today, it is coal. Tomorrow, it could be corn or soy 
beans.
    Mr. Stewart, what are the potential economic implications 
States, communities and families could face as a result of 
important export terminal project delays?
    Mr. Stewart. Thank you, Senator Fischer.
    First of all, when you bring it out like that, I thought he 
was going to give me a chance to answer him but I want to 
answer you as well.
    First of all, I would be very alarmed. I would be very 
alarmed that first of all, they are coming after coal. Yes, 
tomorrow, it might be fish. Tomorrow it might be a different 
kind of fish. Tomorrow it might be GMOs, or might be non-
electric cars. Whatever may be the case, whatever is the flavor 
of the month, someone is going to try to go after that.
    When you talk about States' rights, I have no problem. I am 
not trying to interfere with States' rights. I am not trying to 
interfere with those areas, but you have to recognize that 
under States' rights, under the United States Constitution, 
there is something called the Indian Commerce Clause. There is 
something called equal trade, free trade, all these terms we 
freely throw around when it works to our benefit.
    Like the Chairman said, we cannot pick winners and losers. 
We should not pick winners and losers. We should allow people 
and groups to work with each other to try to establish this 
economy.
    In the U.S. Constitution and as a United States citizen, 
but first and foremost as a citizen of the Crow Nation, we have 
a phrase in the United States Constitution that says ``pursuit 
of happiness.'' In Indian Country, that is called self-
determination. That is a Federal act.
    When we are being stymied or impeded, our ability to move 
our product through the ports or even to the domestic markets 
because as a Nation within a Nation, the Crow Nation has always 
been exporting. Now they are going to try to tell us we cannot 
send our product out of our Nation or cannot provide. I am 
going to bring it up again. If you are going to close the door, 
what doors are they leaving open?
    I am not trying to blame anyone, I am not trying to point 
fingers but this is America. As a first American, I would be 
very alarmed. Right now, we have 70 percent unemployment. Do 
they care? Yes, we care about endangered species but there are 
only 14,000 Crows left. I believe we are endangered as well.
    When you talk about 3 percent of the population in the 
United States and 60 percent of this Nation's good resources 
lie in Indian Country and only 88 percent of those resources 
have been tapped, only 12 percent of Native Americans has been 
able to tap their resources, there is something wrong with that 
picture. There are impediments in our way. There are 49 steps 
that stand in our way and four primary agencies. When we talk 
about coal, there is a fifth with OSM.
    When we talk about these impediments and the 49 steps that 
we, as Native Americans have to go through as first Americans, 
we should be the first ones out of the gate. We have the most 
resources but we are the last ones at the dinner table.
    With that much in resources we should be sitting at the 
table. We should have a place at the table. We should have our 
name at the table. We should not be giving the right to the 
States to break the law, to impede other nations from trying to 
feed their people. That is wrong. Not only is it breaking the 
law, but it is morally wrong. We need the ability to establish 
our jobs and have jobs, 70 percent.
    To the good Senator, I appreciate your question.
    Senator Fischer. Thank you for a very wonderful answer to 
why we must have free commerce in this Country. I think you 
expressed it beautifully.
    Thank you.
    Senator Barrasso. Thank you, Senator Fischer.
    Senator Ernst.
    Senator Ernst. Thank you, Mr. Chairman.
    Mr. Stewart, thank you for being here. I am going to echo 
the Senator from Nebraska's thoughts as well. The fact that you 
have 14,000 members of your Nation and are endangered as well 
is a very powerful statement. That is extremely powerful.
    So many of the questions I had have already been asked. I 
would like you to take this opportunity to visit with us a bit 
more. Understanding your presence here today really does 
suggest there are some important State and tribal interests 
being hurt when the Section 401 authority is abused. We 
appreciate you taking the time to join us today.
    In a broad statement, do you think other States and tribes, 
those without coastlines, have reason to be concerned about 
what is happening in your particular situation as well? Do you 
think other tribes or States have a reason to be concerned, 
witnessing what has happened with your Nation?
    Mr. Stewart. Yes. In fact, we have friends, brothers and 
sisters, friends and families from other tribes. If they are 
not watching this, they should be. In fact, I know the tribes 
that are watching these areas, for some reason the Crows always 
are at the forefront of a lot of these situations.
    That is because, as I stated, the U.S. Constitution says 
the ``pursuit of happiness.'' We are just trying to determine 
ourselves, trying to extract our resources. When you own 10 
percent of the Nation's coal reserves and 3 percent of the 
world's, only averaging 3 million tons of coal a year, roughly 
125 workers out of 14,000 Crows, that is pretty tough, 
especially when we are not trying to break the obligations of 
our treaties because we are getting nothing for free. We 
prepaid in the giving and ceding of our lands ahead of time 
with our treaties.
    When we have a general fund that is funded at 66 percent 
from our own resources, that our own people have mined and sent 
out to domestic markets, wanting to now send them out to export 
markets, talking with other countries, our allies, and wanting 
to expound on our opportunities in those areas and being told 
there is another step you are going to have to cross, another 
bridge you are going to have to cross, why is that?
    In Indian Country, when they tell us to abide by a 
regulation or policy, we have to. We do not have the ability or 
luxury to move the goalpost because, guess what, that is 
breaking the law. When you establish 401 as a platform for 
other reasons and political agendas, not realizing you are 
messing with people's lives, I have to say something.
    Senator Ernst. Yes, and I am glad you have.
    Mr. Stewart. I have come out of my own pocket to be here. I 
am sitting right here speaking from the heart.
    Senator Ernst. We are very glad for that.
    You have done a very good job explaining the difficulties 
your Nation is facing right now. If we were to be forward 
looking and if Section 401 had been approved and you were 
moving forward with exporting your coal and your resources not 
only to the domestic market but to foreign markets as well, 
could you describe what the situation would be like then for 
your Nation?
    Mr. Stewart. At the time when I was on the council, I 
participated in a decision where we reached out to Harvard for 
the Indian coal production tax credits but at that time. 
Harvard did the study we asked them to do and paid them to do. 
Right or wrong, we said, put together a study and let us look 
at the economic ripple that we provide for the region.
    We had that study done and looked at it. There were the 
direct benefits and indirect benefits and as it ripples 
throughout the region, at a good year, we were averaging 5.5 
million tons at our coal mine and about $21 million to our 
tribal coffers, roughly 66 percent of our general fund budget.
    When we did that study, it showed in the hundreds of 
billions just from that one coal mine how it affected the 
region. To answer your question, Senator Ernst, if we get the 
ability, under the Indian commerce clause, the only ones that 
can regulate commerce between tribes is Congress. States cannot 
impede upon that.
    When we talk about these issues trying to move forward in 
this arena and be a participant in the economy, it will not 
only be benefiting the Crow people or their jobs, it will be 
benefiting the region and the area. That is a lot of new money 
to the States and a lot of new jobs to the States.
    To answer your question in detail, I didn't want to go into 
that too much but I had to say all that to get to this point to 
clarify that the jobs that could be created by the companies 
that are out there, or lack thereof right now, and your 
entrepreneurs that could be created, the jobs that could be 
created, it is not a shift of wealth within the States. It is 
new money. It is new taxes. It is new opportunities. There is 
no telling what it is going to do like new roads, new bridges, 
new whatever, new opportunity.
    It is about opportunity. Without that opportunity, like the 
Good Book says, ``Faith is the substance of things hoped for, 
the evidence of things not seen.'' Without that hope, without 
that opportunity, a lot of people would lose faith.
    Thank you.
    Senator Ernst. God bless you, Mr. Stewart. Thank you for 
being here.
    Thank you, Mr. Chairman.
    Senator Barrasso. Thank you, Senator Ernst.
    Senator Boozman.
    Senator Boozman. Thank you, Mr. Chairman. Thank you for 
holding the hearing.
    We appreciate you all being here and testifying about this 
very, very important subject.
    Mr. Booker, investment in energy infrastructure, including 
pipelines, provides good-paying jobs for American workers. I 
think we all very much agree with that.
    I understand a recent study by the Institute for 
Construction Economic Research found pipeline construction 
supports more than 41,700 jobs for union workers, each year 
generating over $2.3 billion in wages.
    Can you elaborate on the job opportunities in pipeline 
construction for your members?
    Mr. Booker. Absolutely. Thank you for the question, 
Senator.
    The pipeline industry, with discovery of the Marcellus 
Shale, the Utica Shale and the availability and technology that 
has allowed us to gain that natural resource, has been a 
tremendous benefit for all workers, union and non-union in the 
Northeast region from Ohio, Pennsylvania, West Virginia and on 
to the Northeast.
    The discovery of that has allowed us to put a lot of people 
to work. If you look back at 2008 and 2009 when the economy 
crashed, the sector of the economy that kept going was in the 
pipeline industry and the discovery of the natural gas. It kept 
communities together, families together and people working.
    The pipeline infrastructure, the lack of pipeline 
infrastructure is critically important. We need to modernize 
the pipeline infrastructure and build new pipeline 
infrastructure which is going to create the jobs for all 
Americans.
    Senator Boozman. When you have obstruction and delays for 
obstruction and delay's sake, what does that do to things 
regarding, as you say, union and non-union workers, tribes, and 
non-tribes?
    Mr. Booker. We look for predictability just like the owner 
of the pipeline does and the end user. When you go home at 
night, you want to turn on the light, turn on your air 
conditioner and make sure it works.
    For us, when unnecessary delays happen, when we have 
planned and done the training for the work force to build that 
necessary infrastructure, to then have them be ready to go to 
work in that community and then they are back in the 
unemployment line. Their wages dramatically decrease and they 
are not able to contribute to the local economy.
    It affects our training and our capacity to train 
tomorrow's workers as well.
    Senator Boozman. I think you make a great point. You can 
play with good rules and you can play with bad rules. If you do 
not know what the rules are, it makes it very, very difficult 
to go forward. We appreciate that.
    Mr. Stewart, I really do not have a question for you. I 
think you have answered all the questions in a very good way. I 
am glad you paid your way here to contribute. I want to go on 
record as agreeing with you that certainly States and tribes 
should have the ability to regulate water infrastructure. We 
need to work hard and I think this type of legislation 
reaffirms the importance of that.
    Again, thank you very much for being here.
    Mr. Stewart. Thank you.
    Senator Boozman. Mr. Booker, it is clear that the 
implementation of Section 401 has created confusion resulting 
in delays of important infrastructure projects and we discussed 
the uncertainty.
    Do you believe the Water Quality Certification Improvement 
Act helps restore predictability and certainty while balancing 
State and Federal authorities?
    Mr. Booker. I do. In my testimony, we believe in the 
States' rights. We believe there should be regulation. It has 
to be predictable though. You cannot change the rules of the 
game halfway through the game.
    I think this is a necessary change that puts everyone in a 
predictable and certain way as to here are the rules, here is 
what you have to follow. If you can check every box, you will 
be able to build your project. If you cannot, then you are not. 
We support that.
    Senator Boozman. Do you want to comment on that, Mr. 
Stewart? I know the tribes certainly are kind of the classic as 
far as uncertainty, rules changing and this and that?
    Mr. Stewart. Oh, yes. Since I only have a little bit of 
time, we can sit down later and talk about this.
    To answer your question, when we are trying to be good 
actors, provide for our families, and try to do the things that 
need to get done, as a man and soon to be grandfather, I have 
to think about the generations before me, those that are 
coming.
    We do not want to continue to move this goalpost. Water 
quality certification should mean certification of water 
quality, not what the Sierra Club wants or what this club or 
that club wants. It should mean what it says it is supposed to 
mean.
    As a man, I was always taught that what you say is very 
precious. You cannot take it back. That falls in line with the 
integrity of a person and the integrity of the law. When we 
allow different entities, folks or States to break the 
integrity of that law, then we are violating the intent.
    Those ramifications are very detrimental to not only the 
present generation but generations to come. It is something we 
just cannot play with. We have to be true to our word. Water 
quality certification should say what it says plain and simple.
    Senator Boozman. We appreciate that. Certainly those are 
simple truths. As a fairly recent grandfather, you are going to 
enjoy that. That will be a very, very positive thing in your 
life.
    Thank you, Mr. Chairman.
    Senator Barrasso. Thank you, Senator Boozman.
    Before turning to Senator Cardin, I would submit to the 
record something Mr. Willardson referenced, which was the 
environmental impact statement for the Millennium Bulk 
Terminal. In that document, the State of Washington itself 
concluded that there would be no significant impacts to water 
quality, wetlands, surface waters or flood plains.
    The State of Washington denied the project for political 
reasons. The State itself found these impacts were not 
problematic in its own environmental impact statement.
    I am going to submit that for the record. Without 
objection, so ordered.
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    Senator Barrasso. Senator Cardin.
    Senator Cardin. Mr. Chairman, thank you very much.
    I thank all the witnesses for being here today.
    I would ask consent, if I might, to put into the record, a 
letter from the Attorney General of Maryland, Brian Frosh, 
raising concern with regard to S. 3303; a letter from the 
Association of Clean Water Administrators also expressing 
concern with regard to this legislation; and related documents.
    Senator Barrasso. Without objection.
    [The referenced information was not submitted at time of 
print:]
    Senator Cardin. Thank you, Mr. Chairman.
    Mr. Willardson, I want to ask a practical question. I have 
significant concerns about the changes being suggested with 
regard to the 401 waiver from the States. I want to ask about 
the practical problem of shortening the period to 90 days.
    There is an issue whether there is adequate time for a 
State to make that assessment within a 90-day period. There are 
documents that have to be received and so forth. One of the 
unintended consequences could be that because there is 
insufficient time and information, a States rejects the waiver, 
therefore counterproductive to the intent of the bill, to 
expedite the process.
    I would like to get your assessment as to whether this is a 
real concern or not. I have heard from people in Maryland about 
this particular issue. I would like to get your assessment as 
to how realistic it is for States to have adequate information 
and make an adequate review within a 90-day period?
    Mr. Willardson. As I noted, most of the decisions are 
currently made within 90 days. Obviously, with a very complex 
project, such as the Millennium Pipeline, it can take more 
time. The FERC licensing process for hydropower and relicensing 
generally takes about 5 years. FERC has an alternative 
licensing process which applicants can now opt in to begin 
early consultation with the States.
    Generally, the 401 question is brought in about 2 years 
before the license would be issued again. Currently, States 
have 1 year to make those determinations. Ninety days would be 
very difficult on complex projects. Obviously, many of these 
are complex projects.
    As I said, we have not dealt with the pipelines to that 
degree but I would point out in the State of Washington, their 
determination is already under review by the Water Quality 
Commission which will make a determination as to whether or not 
the director's decision was appropriate.
    We are very cognizant of the energy needs of this Country, 
the infrastructure needs, and permitting those in a timely 
manner. I would point to the Western Governors Association's 
energy policy which is in all of the above.
    I would also point out from a council perspective that we 
have worked very hard with our tribal members and with the Crow 
as well on Indian water rights settlements. Under the Clean 
Water Act, tribes are treated as States. They have 401 water 
quality permitting authority where they have been granted 
treatment as tribes.
    These are very complex projects. Most of them could be 
completed within the 90 days. Some, I think, it would be very 
difficult to get the information to make a sound decision.
    Senator Cardin. You may not be familiar with the Conowingo 
Dam which is a very important energy source for the East Coast 
of the United States, the second largest electrical energy 
generating dam on the East Coast of the United States. It is a 
very, very important source of energy.
    Exelon is the operator of that particular facility. It is 
in the relicensing stage and review is currently underway. The 
expectation is that ultimately the waiver will be granted but 
it will be based upon certain conditions. That will take well 
beyond any 90-day period for that process.
    It is a pretty complicated process on the Susquehanna and 
is extremely controversial in regard to water quality in the 
Bay. Particularly with recent storms, the amount of surge of 
materials that are released is a major concern. A project like 
that, it is not realistic to look at a 90-day period.
    Mr. Willardson. It would be very difficult to make that 
determination in 90 days, with the exception of the timing of 
the request for the certification. If that request comes 
following the completion of the environmental impact statement 
so those questions are coordinated, then the State could act, 
given that information, promptly.
    Obviously, it would be counterproductive if the time is not 
sufficient for the State to act because they would simply, as 
they do now, deny the permit generally without prejudice so it 
could be resubmitted when there was sufficient information or a 
complete application.
    Senator Cardin. That is how I expect you would see some of 
these actions by the State in order to get more time if there 
was a hard time period they could not meet. My own assessment 
in a project like the Conowingo Dam is there are so many 
stakeholders. It is such a complicated process. I think it is 
already 40 years that this process goes forward.
    The opportunity only presents itself once in a generation. 
It is the speed bump for a lot of consideration of different 
issues and a lot of stakeholders. It is a complicated process.
    Mr. Willardson. Those permits are generally for 40 or 50 
years for the operation of the dams. I was a resident of 
Philadelphia for a couple of years so I am familiar with the 
Susquehanna.
    Senator Cardin. A lot of good things have happened during 
the certification process. Again, I do not think anyone is 
questioning the continuation of the dam; it is critically 
important for energy. It is also important for water quality 
that we get it right.
    Thank you, Mr. Chairman.
    Senator Barrasso. Thank you, Senator Cardin.
    This bill does have the strong support of the American 
workers across the Country. I would like to enter into the 
record letters of support of the bill from representatives of 
the International Brotherhood of Electrical Workers in 
Massachusetts, Connecticut, Rhode Island, New Hampshire, 
Vermont and Maine, as well as the Rhode Island Building and 
Construction Trades Council.
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    Senator Barrasso. I want to thank all the witnesses for 
being here. Thank you for your testimony and for your timely 
response.
    The record will stay open for an additional 2 weeks. 
Members may submit written questions.
    Kind of in response to Mr. Stewart's last answer where he 
talked about an organization or group, I think you mentioned 
the Sierra Club should not be able to stop projects because it 
is their agenda. There is a publication in the New Jersey 
Spotlight today, August 16, where it is very clear that Section 
401 is viewed by environmental groups and some States as a tool 
to block energy projects, not a tool to keep water clean.
    You talked specifically, Mr. Stewart, about the legislation 
and laws about clean water ought to apply to keeping water 
clean. The director of the New Jersey Sierra Club stated in 
this article in today's New Jersey Spotlight, which I am 
submitting to the record, ``Section 401 review is probably the 
most effective tool we have to fight pipeline projects,'' not 
to keep water clean but to fight projects.
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    Senator Barrasso. With that, I thank the witnesses. We 
appreciate you all being here.
    This hearing is adjourned.
    [Whereupon, at 11:28 a.m., the committee was adjourned.]
    [Additional material submitted for the record follows:]
    
    
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