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]
[From the U.S. Government Publishing Office]
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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.
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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.]
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