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FERC chairman warns states may be "weaponizing" Clean Water Act section 401 denials
Summary
Chairman Sweat told reporters he sees instances where states deny section 401 certifications outright rather than offering mitigation, describing that practice as "weaponizing" the Clean Water Act; he pointed to denials in multiple interstate project dockets and said states should conduct meaningful analysis of protective measures.
Carlos Anchondo of ENE News asked whether Chairman Sweat’s recent comments that states might be using Clean Water Act section 401 permits "as a weapon" referred to isolated incidents or a pattern. Chairman Sweat responded that while states play an important role under the Clean Water Act, the statute (and his view of congressional intent) calls for states to engage in meaningful analysis and offer measures to protect waters. "Where that turns into what I have categorized as weaponizing is where a state chooses to outright deny a permit under the Clean Water Act instead of providing suggestions on how a project can actually protect the waters of The United States," he said.
Chairman Sweat said there are many dockets where large interstate projects have received denials under section 401 and cited those denials as examples. He did not enumerate specific dockets or name states in the public exchange. The commission did not take an action in the open session to change section 401 process or override state certification authority; his remarks described how FERC views state denials in the context of federal permitting and review.
The record will remain open for comment in the relevant dockets, and the chairman's remarks signal the commission is scrutinizing how states exercise section 401 authority when reviewing interstate energy infrastructure.
