HR-9855-119
Referred to the House Committee on Transportation and Infrastructure.
Sponsored by Adam Gray (D-CA)
What it does
This bill would amend Section 401 of the Clean Water Act, which gives states the authority to certify (or block) federal permits for projects that may affect water quality. It would limit state reviews to direct discharges only, require states to publish certification criteria within 30 days, impose a strict one-year deadline on state decisions that cannot be paused or extended for any reason (except at the applicant's request), require denials or conditions to be justified by "clear and convincing evidence," and bar states from imposing conditions on hydroelectric projects related to water flow, timing, or quantity. It would also create an expedited federal appeals court review process — with a 120-day decision deadline — for certification disputes involving energy transmission, pipeline, and FERC-licensed projects.
Who benefits
Energy companies seeking federal permits for pipelines, electric transmission lines, hydroelectric dams, and carbon dioxide transport infrastructure. Project applicants who have faced lengthy or broad state certification reviews. The Federal Energy Regulatory Commission (FERC), whose licensed projects would gain streamlined review. Investors and developers in interstate energy infrastructure. Consumers in regions where delayed energy projects have contributed to supply constraints or higher costs. States that have struggled to publish clear, consistent certification standards.
Who is hurt
States and tribal governments that currently use Section 401 reviews to impose broad water quality and environmental conditions on federally permitted projects — their authority would be significantly narrowed. Environmental advocacy organizations that rely on state 401 certifications as a tool to challenge or condition energy projects. Downstream states and communities whose water quality could be affected by projects approved under narrower review standards. Fishing industries, recreational users, and property owners near waterways affected by hydroelectric projects, who would lose the protection of state-imposed flow conditions. Local governments that depend on state certification processes to address community-specific water concerns.
Supporters argue
Supporters argue that states have systematically abused Section 401 to block or indefinitely delay energy infrastructure projects far beyond the statute's original water quality purpose — using the process to impose conditions on land use, wildlife, and other non-water-quality matters. They point to high-profile cases where states denied or delayed certifications for years on grounds unrelated to discharge standards, stalling projects that had cleared all other federal reviews. They contend the bill restores Section 401 to its intended, narrow scope and provides the regulatory certainty that energy infrastructure investment requires, consistent with the Supreme Court's own narrowing of Clean Water Act jurisdiction in Sackett v. EPA (2023).
Opponents argue
Opponents argue that Section 401 was deliberately designed to give states broad authority to protect their waters from federally permitted projects, and that restricting review to "direct discharges" strips states of a core sovereign tool for managing their own water resources. They contend the "clear and convincing evidence" standard for denials is far more demanding than what Congress originally required, effectively tilting the process in favor of applicants and making it nearly impossible for states to deny permits even when legitimate water quality concerns exist. They further argue that barring flow-related conditions on hydroelectric projects removes the primary mechanism states use to protect river ecosystems, fisheries, and downstream water users.
Constitutional context
Section 401 of the Clean Water Act rests on Congress's Commerce Clause authority (Art. I, §8, cl. 3). This bill narrows the scope of state certification authority, which implicates the Tenth Amendment balance between federal and state power over water resources. Post-Loper Bright (2024), courts will independently assess whether EPA's or states' interpretations of the revised statute are correct, without deferring to agency readings — meaning the bill's new "direct discharge" and "clear and convincing evidence" standards will face independent judicial scrutiny. The expedited appellate review provision also raises questions about Congress's authority to set mandatory decision timelines for Article III courts.
Checks and balances
States lose significant certification authority under this bill, with power shifting toward federal permitting agencies and project applicants; checks include the one-year hard deadline (which cuts both ways), the "clear and convincing evidence" standard enforceable in federal appeals courts, and the expedited judicial review process that gives courts the final word on disputed certifications.
Historical precedent
The EPA's 2020 and 2023 Section 401 rules similarly attempted to define and limit the scope of state certification authority, and both were subject to significant litigation over whether they correctly interpreted the Clean Water Act — a question now subject to independent judicial review under Loper Bright (2024).