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Manchin eyes changes to Clean Water Act in permitting bill

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Manchin eyes changes to Clean Water Act in permitting bill

Little-noticed language in a controversial permitting bill from Sen. Joe Manchin III (D-W.Va.) would change the way states issue Clean Water Act permits, drawing concerns from environmentalists about altering a bedrock environmental law, even as the practical effect of the provision remains unclear.

The details: Manchin's legislation, dubbed the Energy Independence and Security Act of 2022, seeks to speed up the permitting process for new energy projects, including the Mountain Valley Pipeline, which would carry natural gas more than 300 miles from West Virginia to Virginia.

Many politicians and journalists have focused on language in the bill that directs federal agencies to “take all necessary actions” to issue new permits for the pipeline, which has been delayed by legal setbacks.

But the bill also includes a provision that would modify Section 401 of the Clean Water Act, which gives states and tribes the authority to grant, deny or waive certification of permits to fill or dredge federally protected waters such as rivers and wetlands.

When crafting this provision, Manchin's staff consulted with Equitrans Midstream, which has a 48.1 percent ownership interest in Mountain Valley and will operate the pipeline, according to a person close to the negotiations, who spoke on the condition of anonymity because they were not authorized to comment publicly.

Equitrans voiced support for changing the word “discharge” to “activity" in this section of the bill, the person said, arguing the change could clear up legal ambiguity over what constitutes a discharge into federally protected waters in the three states the pipeline crosses: West Virginia, Virginia and Pennsylvania. It could not be learned if the idea for making the change to the Clean Water Act was originally proposed by Equitrans or another company involved in the negotiations.

Sam Runyon, a spokeswoman for Manchin, did not respond to a request for comment. Natalie Cox, a spokeswoman for Equitrans, declined to comment on the negotiations over the permitting bill.

“The proposed permitting reform legislation will ensure that our country is able to effectively and efficiently continue building safe, reliable energy infrastructure that will contribute to a lower carbon future; however, we will not speculate as to how the legislation was drafted, or, more specifically, as to the specific intent of the section referenced,” Cox said in an email.

Moneen Nasmith, a senior attorney with the environmental law firm Earthjustice, said it's unclear how the language would affect states and tribes' certification processes. But she criticized the apparent influence of one company over an issue that affects projects across the country.

“It's frustrating that it sounds like the interests of one gas company are being allowed to dictate the outcome of a statutory provision that applies to thousands of projects of all different types,” Nasmith said.

Other changes

Related language in the permitting bill would codify some of former President Donald Trump's changes to Section 401 of the Clean Water Act. The Biden administration is crafting a new regulation to replace the Trump-era changes; a final rule is expected early next year.

Still other language would require states and tribes to make a decision within one year of a certification request on whether to grant, deny or waive it.

Supporters of this language, including former Federal Energy Regulatory Commission chairman Neil Chatterjee, have said it would foster greater “certainty” for project developers.

But Jon Devine, who leads the Natural Resources Defense Council's federal water policy team, said he thinks this provision could actually lead to more delays for developers.

“If they can't get enough information about the project within the relevant time, states and tribes are most likely going to deny certification altogether to those projects and require them to come back when they've got more information,” Devine said.

Meanwhile, the Supreme Court will hold oral arguments Oct. 3 in a challenge to the scope of the Clean Water Act. Devine expressed concern that the conservative justices could narrow the law's reach in ways long sought by businesses and home builders.

Shutdown showdown

To gain Manchin's vote for the Inflation Reduction Act this summer, Democratic leadership agreed to attach the permitting bill to a stopgap funding bill that must pass by Friday to avert a government shutdown.

Senate Majority Leader Charles E. Schumer (D-N.Y.) has scheduled a procedural vote on the stopgap funding bill for this evening. While the bill needs 60 votes to overcome a filibuster, Senate Republican leaders are reportedly urging their GOP colleagues to oppose the measure. (More on that below.)

Ultimately, if the vote fails, Schumer may have to strip out the permitting proposal to stave off a government shutdown — something neither party wants six weeks before Election Day.

On the Hill

Senate GOP leadership lines up against Manchin's permitting bill

Senate Minority Leader Mitch McConnell (R-Ky.) is rallying his caucus to vote Tuesday against advancing Sen. Joe Manchin III’s (D-W.Va.) energy permitting bill as part of a stopgap government spending package, according to three people familiar with the matter, Burgess Everett and Caitlin Emma report for Politico.

Senate Republican Whip John Thune (S.D.) is also urging his colleagues to oppose Manchin's permitting bill and to instead support a competing proposal from Sen. Shelley Moore Capito (R-W.Va.), Alexander Bolton reports for the Hill.

The new effort threatens to knock down Manchin’s permitting legislation as the senator works to garner support for attaching his measure to the must-pass bill. He has faced opposition from liberal colleagues as well, including Sen. Bernie Sanders (I-Vt.), who has said he will vote against the temporary funding fix if the permitting provisions are included.

Pallone introduces bill to create Economic Petroleum Reserve

House Energy and Commerce Committee Chair Frank Pallone Jr. (D-N.J.) on Monday unveiled legislation aimed at lowering gasoline costs by empowering the Energy Department to establish an Economic Petroleum Reserve within the Strategic Petroleum Reserve.

The bill, dubbed the Buy Low and Sell High Act, would require the Energy Department to purchase oil when prices fall below $60 a barrel and to sell oil when prices exceed $90 per barrel, according to a summary from Pallone's office.

The new Economic Petroleum Reserve would consist of up to 350 million barrels of oil. Part of the proceeds from sales from the reserve would go toward projects that reduce petroleum consumption and support the transition to electric vehicles.

“Not only does this bill grant DOE the flexibility it needs to keep prices falling, but it also recognizes that our reliance on fossil fuels makes us weaker, and uses the proceeds from oil sales to build out electric vehicle infrastructure,” Pallone said in a statement. “This is what a win-win looks like.”

Co-sponsors of the measure include Democratic Reps. Bobby L. Rush (Ill.), Angie Craig (Minn.), Jason Crow (Colo.), Josh Harder (Calif.), Ann Kuster (N.H.), Tom O’Halleran (Ariz.) and Abigail Spanberger (Va.).

Extreme events

Low-lying and flood-prone, Tampa Bay braces for first major storm in a century

The exact size, strength and path of Hurricane Ian remains uncertain. But the Tampa Bay region that lies in its crosshairs, with nearly 700 miles of shoreline and more than 3 million residents, is one of the most vulnerable places in the United States for severe flooding if a catastrophic hurricane were to hit directly, The Washington Post’s Brady Dennis reports.

Ian, which is set to smack into Florida’s Gulf Coast this week as a major hurricane, could be the storm that officials in Tampa have feared for decades amid rising sea levels and a development boom. By Monday evening, mandatory evacuation orders expanded up and down the state as it prepared for the slow-moving and strengthening monster storm, Scott Dance, Karin Brulliard, Tim Craig and Brittany Shammas report for The Post.

The National Weather Service predicted that Ian could bring prolonged torrential rain and a surging wall of floodwater to the area, cautioning residents to prepare for the possibility of impassable roads, power and communication outages, and buildings rendered uninhabitable.

A few years ago in Tampa Bay — home to Tampa, St. Petersburg, Clearwater and some of the state's most famous beaches — a regional planning council simulated a worst-case scenario hurricane to show local leaders the potential consequences if a severe storm were to hit the area. The group projected that such a storm could destroy nearly half a million homes and businesses, thousands of people could die, and millions of residents could require medical treatment.

International climate

Gas from Nord Stream 2 is leaking into the Baltic Sea

Gas from the defunct Russian-owned Nord Stream 2 pipeline, which connects Moscow and Germany but has never been operational, leaked overnight on Sunday into the Baltic Sea because of a sudden decrease in pressure, Thomas Escritt and Stine Jacobsen report for Reuters.

On Monday, Danish officials asked ships to steer clear of a five-nautical-mile radius of the area while local authorities investigated the leak. Meanwhile, on Monday evening, the operator of the Nord Stream 1 pipeline also documented a drop in pressure.

Both pipelines have emerged as flash points in an escalating energy war between Europe and Russia since Moscow's February invasion of Ukraine, which has increased gas prices across the continent.

In the atmosphere

Viral

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