Governor Gordon Testifying in Senate Committee

Gov. Mark Gordon testifies Tuesday, Nov. 19, 2019, before the U.S. Senate Committee on Environment and Public Works in Washington, D.C. Gordon was invited to the hearing by U.S. Sen. John Barrasso, R-Wyo., who chairs the committee, after the senator introduced a bill earlier this year that would change certain rules within the Clean Water Act that both men say have allowed other states to block trade with Wyoming. Courtesy

CHEYENNE – Gov. Mark Gordon testified Tuesday morning in Washington, D.C., before the U.S. Senate Committee on Environment and Public Works, arguing interpretations of Section 401 of the Clean Water Act have allowed other states to block trade with Wyoming.

Gordon was invited to the hearing by U.S. Sen. John Barrasso, R-Wyo., who chairs the committee, after the senator introduced a bill earlier this year that would change certain rules within the Clean Water Act.

Section 401, a controversial part of the act, requires applicants to obtain a water quality certification from any state that a potential project would go through. The current scope of the act has drawn ire from states like Wyoming and Oklahoma.

Barrasso, whose bill would narrow the scope of what can be regulated within Section 401, invited Gordon to speak on how interpretations of the act have impacted Wyoming.

“The Clean Water Act, particularly Section 401, is designed to allow states to protect water quality within their boundaries,” Gordon said. “It is not a tool to erect trade barriers based on political or parochial whims, nor a way to preempt interstate commerce.”

Gordon said reform of the act does not represent a veiled attempt to deny climate change.

“We acknowledge that CO2 concentrations in our atmosphere are an urgent concern for our climate and must be addressed effectively, while we also recognize that the world needs energy,” Gordon said.

Barrasso’s bill would limit the scope of the Section 401 review to only consider a project’s impact on water quality. Gordon said Washington used “a fanciful interpretation” of the section when it previously refused to permit the Millennium Bulk Terminal, a coal port that would have shipped Powder River Basin coal to the Asian Pacific region.

“The two main areas that I advocate for reform in context of Wyoming’s experience relate to one, the scope of environmental reviews, and two, the basis for certification denials,” Gordon said. “The draft (legislation sponsored by Barrasso) ... offers a much-needed improvement to Section 401 of the Clean Water Act by reducing uncertainty and limiting the potential for misuse.”

Along with Gordon, Oklahoma Gov. Kevin Stitt and Washington Senior Assistant Attorney General Laura Watson also testified before the committee. Speaking on behalf of another energy-dependent state, Stitt echoed many of Gordon’s arguments.

“Unfortunately, the misuse of Section 401 threatens Oklahoma’s potential and the endless opportunities for our 4 million residents,” Stitt said. “It prevents Oklahoma from achieving all it can be because a loophole within Section 401 is allowing a small handful of coastal states to dictate the future for the 40 other states.”

In August, the Environmental Protection Agency proposed a rule to clarify the scope and increase the efficiency of the certification process. Watson, representing the state that refused to take on Wyoming’s coal, said the federal government should stay out of the decision.

“The EPA’s proposed rule would drastically narrow the scope of 401 review,” Watson said. “It would severely restrict the amount of time and information that states have to make their decisions.”

Watson said the changes being proposed are extreme, unfounded and unnecessary.

“They appear to be based on disagreement with a few state decisions, including Washington state’s denial of a Section 401 certification for a proposed coal export facility on the Columbia River,” Watson said. “I would like to set the record straight: Washington’s 401 denial was based on water quality grounds. Climate change and greenhouse gas considerations were in no way a factor in the state’s denial.”

Yet for Gordon, the issue was about balancing competing interests.

“(The bill) does a very good job of balancing state’s rights to manage their own affairs with those that have to do with the Commerce Clause of the Constitution,” Gordon said.

The legislation marks Barrasso’s second attempt to limit the scope of the Clean Water Act. Last year, a similar bill was introduced and received a hearing, but it moved no further.

Tom Coulter is the Wyoming Tribune Eagle’s state government reporter. He can be reached at tcoulter@wyomingnews.com or 307-633-3124. Follow him on Twitter at @tomcoulter_.

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