American Whitewater Opposes Legislation to Undermine Clean Water Act

On September 21, Sen. Manchin (D-WV) released the Energy Independence and Security Act of 2022, long-anticipated legislation seeking to speed up environmental review and approval of energy projects under the National Environmental Policy Act and Clean Water Act. The new permitting legislation is the result of a narrow and closed-door deal with Senator Manchin to secure his vote in support for the Inflation Reduction Act that was enacted in August.

The permitting bill has sparked strong opposition from scores of Members of Congress because it attempts to fast track carbon-emitting energy sources, shorten the time and scope of environmental reviews, limit public participation and redress for environmental impacts under National Environmental Policy Act, and limit the ability of states to assure that federally-permitted activities meet state water quality standards under Section 401 of the Clean Water Act. As river advocates with 40 years of experience working to minimize the impact of hydropower dams on river ecosystems, American Whitewater is deeply concerned that the proposed legislation will perpetuate the environmental degradation of rivers by hydropower dams.

Hydropower is unlike other renewables in that it necessarily generates energy at the expense of environmental values with detrimental ecological impacts on flowing rivers and environmental justice impacts on communities that depend on healthy rivers. Dams block rivers resulting in the degradation of water quality, alter natural flows, dewater river reaches, reduce and degrade aquatic habitat, diminish recreation opportunities, and fragment river ecosystems. The Energy Independence and Security Act of 2022 is likely to exacerbate and perpetuate these impacts.

At many hydropower dams, the value of generation to the power grid is outweighed by its environmental and social justice impact. The effects of climate change and crumbling infrastructure raise serious questions about hydropower’s reliability as an energy source in the 21st Century. The proposed legislation does nothing to address these concerns and is unlikely to result in even a single new megawatt of hydropower on the power grid. Instead the legislation seeks only to minimize standards for environmental compliance and overburden communities most directly impacted by hydropower development by limiting the ability of states to protect our nation’s rivers.

Through the Clean Water Act, Congress delegated to the states primary responsibility for protecting rivers from the harmful impacts of federally-permitted energy projects such as hydropower dams. The proposed legislation would allow federal agencies to dictate the process whereby the states determine that a project meets state water quality standards by limiting the information available to the states, their time for review, and the scope of states’ authority to assure that these projects comply with state requirements.

Under Section 401 of the Clean Water Act, an applicant  for a federal permit resulting in a discharge into navigable waters must first obtain certification from the state where the project is located that the activity will meet state water quality standards including the protection of designated and existing uses of the river. Under the Clean Water Act, states have one year to act on an application for certification, and states may condition certification on compliance with certain conditions that become a part of their federal license. States have used their Section 401 authority to require changes to project operations to protect aquatic species, fish passage, and recreational uses.

Specifically, the proposed legislation would weaken Section 401 of the Clean Water Act in the following ways:

• Limits basis for state certifying agencies to deny or condition certification likely resulting in greater confusion, delay, and litigation;
• Narrows the scope of conditions that states may require under state law to “water quality” requirements without definition, potentially excluding other project impacts on designated and existing uses, air pollution, cultural values. environmental justice, and other indirect effects of the generation activity;
• Provides federal permitting agency with a veto over state determination of reasonable period of time to act on and application for certification;
• Encourages states to deny certification applications by requiring states to take final action based on incomplete information by applicants;
• Limits the information that applicants are required to provide to state certifying agencies to “water quality requirements” rather than project impacts on other resources;
• Intrudes on state administration of Section 401 by requiring states to promulgate regulations;
• Fails to resolve ambiguity over effect of an applicant’s withdrawal of certification application;
• Continues to disproportionately impose the impacts of energy development, including hydropower, on Environmental Justice Communities

We urge Members of Congress to oppose the Energy Independence and Security Act of 2022 and reject efforts to weaken the Clean Water Act and National Environmental Policy Act through this proposed legislation.

By Bob Nasdor