This week the House voted on the PERMIT Act (H.R. 3898) and passed the bill by a vote of 221 to 205. The bill was introduced by Rep. Mike Collins (R-GA), who serves on both the Committee on Natural Resources as well as the Transportation and Infrastructure Committee. While the bill passed largely on party lines, six Democrats joined with Republicans to pass the bill (Representatives Bishop (D-GA), Costa (D-CA), Cuellar (D-TX), Davis (D-NC), Gray (D-CA) and Gluesenkamp Perez (D-WA), and one Republican (Rep. Fitzpatrick of PA) voted against passage. The House considered and adopted seven amendments on the floor by voice vote. The bill now may be considered in the Senate, where the Environment and Public Works Committee Chair Shelley Moore Capito (R-WV) is working on her own permitting bill that may make changes to the Clean Water Act as well as a variety of other resource protection laws. 

The PERMIT Act modifies the Clean Water Act (CWA), including provisions that govern state certification of water quality and their enforcement of water quality standards for discharge in neighboring states, as well as the establishment of water quality standards by the Environmental Protection Agency (EPA). The bill also changes the relationship between EPA and the U.S. Army Corps of Engineers (USACE), limiting EPA’s veto powers over USACE actions, and also creates hurdles to standing to file lawsuits and imposes a 60-day time limit for judicial review in order to curb environmental litigation. 

At issue underlying this proposed legislation is the fact that in recent years states have successfully used their authority for state water quality certifications under section 401 to prevent construction of pipelines, liquefied natural gas export facilities, and other fossil fuel projects. Under current law, States set water quality standards and criteria to protect the water body according to its the designated uses, and the CWA provides mechanisms for states to enforce those standards. The CWA provides some degree of latitude to states in issuing State water quality certification, and if a state denies certification for a project the federal agencies cannot approve a CWA permit for it.  

The PERMIT Act would introduce new considerations for state certifications and the types of conditions they could place on certifications. States would have to consider the cost and commercial availability of treatment technologies, which would limit the ability of states such as California, who use their authorities under the CWA to push the market toward new cutting edge technologies that may be higher cost. 

The PERMIT Act also significantly changes the enforcement of states’ water quality standards in several ways. First, it amends the CWA in several instances to replace broad references to states’ “applicable water quality requirements” with references to specific requirements under federal law. In other words, states with water quality laws that are stronger than federal rules wouldn’t be able to use the CWA to enforce those protections, and would have to rely only on weaker federal minimums. The bill also limits state review of pollutants to those that are “directly” discharged from a project. Additionally, the bill prohibits states from imposing their own state level requirements on the discharges of pollutants in other states even if they will have a water quality impact in the downstream state. The bill also allows the EPA Administrator to determine that a discharge would not affect a downstream state and not even notify the state of the pollutant and permit decision. 

For transportation projects, water pollution can result from stormwater runoff (which is a non-point source pollution) as well as during the construction of infrastructure projects, during which time erosion can lead to sediment deposits in waterways. Transportation projects being built in or near water can also require additional permit actions from USACE and the relevant state. 

Beyond the State water quality certification changes, the PERMIT Act makes several broad changes for the use of nationwide permits under the CWA. USACE uses nationwide permits to authorize activities that are “similar in nature, cause only minimal adverse environmental effects when performed separately, and cause only minimal cumulative adverse effects on the aquatic environment.” The PERMIT Act creates a legislative nationwide permit for “linear infrastructure projects that result in a discharge of dredged or fill material into less than 3 acres of navigable waters for each single and complete project.” The 3 acre standard represents a six- to ten-fold increase from the current standard for linear transportation projects under Nationwide Permit 14, which limits the discharge of fill material into less than one-half acre for non-tidal waters of the U.S. and one-third acre for tidal waters.  

Other significant changes to nationwide permits include extending their period of use from 5 to 10 years, and limiting EPA’s veto authority on CWA permit decisions. (Although this authority has been used a mere 14 times since 1972 according to EPA, the authority helps to establish EPA as the final arbiter of the Clean Water Act, so the change is as significant for symbolic reasons as for project-level decisions.) 

The bill also includes broad exemptions for the discharge of PFAS and agricultural run-off in certain situations, which may be part of the rationale for opposition from Rep. Fitzpatrick. While Mr. Fitzpatrick is co-chair of the Problem Solvers Caucus, whose permitting framework endorsed changes to clarify the use of Section 401 of the CWA, he is also Co-Chair of the Congressional PFAS Task Force and has introduced legislation to codify a Biden-era final regulation from EPA setting enforceable maximum contaminant levels for PFAS in drinking water.  

The bill faces a somewhat uncertain future in the Senate, which may be interested in some elements but historically has been less eager to significantly curtail broad state-level authorities. This and other permitting-related bills seem likely to be tweaked, combined and considered as part of a broader permitting bill in the Senate.