[House Report 112-139]
[From the U.S. Government Publishing Office]
112th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 112-139
======================================================================
CLEAN WATER COOPERATIVE FEDERALISM ACT OF 2011
_______
July 8, 2011.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Mica, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 2018]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 2018) to amend the Federal Water
Pollution Control Act to preserve the authority of each State
to make determinations relating to the State's water quality
standards, and for other purposes, having considered the same,
report favorably thereon with an amendment and recommend that
the bill as amended do pass.
CONTENTS
Page
Purpose of the Legislation and Summary........................... 3
Background and Need for the Legislation.......................... 3
Legislative History.............................................. 5
Hearings......................................................... 6
Committee Votes.................................................. 6
Committee Oversight Findings..................................... 8
Cost of Legislation.............................................. 8
New Budget Authority and Tax Expenditures........................ 8
Congressional Budget Office Cost Estimate........................ 8
Performance Goals and Objectives................................. 9
Advisory of Earmarks............................................. 9
Federal Mandates Statement....................................... 10
Preemption Clarification......................................... 10
Advisory Committee Statement..................................... 10
Applicability to the Legislative Branch.......................... 10
Section-by-Section Analysis of the Legislation................... 10
Changes in Existing Law Made by the Bill, as Reported............ 13
Dissenting Views................................................. 17
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Clean Water Cooperative Federalism Act
of 2011''.
SEC. 2. STATE WATER QUALITY STANDARDS.
(a) State Water Quality Standards.--Section 303(c)(4) of the Federal
Water Pollution Control Act (33 U.S.C. 1313(c)(4)) is amended--
(1) by redesignating subparagraphs (A) and (B) as clauses (i)
and (ii), respectively;
(2) by striking ``(4)'' and inserting ``(4)(A)'';
(3) by striking ``The Administrator shall promulgate'' and
inserting the following:
``(B) The Administrator shall promulgate''; and
(4) by adding at the end the following:
``(C) Notwithstanding subparagraph (A)(ii), the Administrator may not
promulgate a revised or new standard for a pollutant in any case in
which the State has submitted to the Administrator and the
Administrator has approved a water quality standard for that pollutant,
unless the State concurs with the Administrator's determination that
the revised or new standard is necessary to meet the requirements of
this Act.''.
(b) Federal Licenses and Permits.--Section 401(a) of such Act (33
U.S.C. 1341(a)) is amended by adding at the end the following:
``(7) With respect to any discharge, if a State or interstate agency
having jurisdiction over the navigable waters at the point where the
discharge originates or will originate determines under paragraph (1)
that the discharge will comply with the applicable provisions of
sections 301, 302, 303, 306, and 307, the Administrator may not take
any action to supersede the determination.''.
(c) State NPDES Permit Programs.--Section 402(c) of such Act (42
U.S.C. 1342(c)) is amended by adding at the end the following:
``(5) Limitation on authority of administrator to withdraw
approval of state programs.--The Administrator may not withdraw
approval of a State program under paragraph (3) or (4), or
limit Federal financial assistance for the State program, on
the basis that the Administrator disagrees with the State
regarding--
``(A) the implementation of any water quality
standard that has been adopted by the State and
approved by the Administrator under section 303(c); or
``(B) the implementation of any Federal guidance that
directs the interpretation of the State's water quality
standards.''.
(d) Limitation on Authority of Administrator To Object to Individual
Permits.--Section 402(d) of such Act (33 U.S.C. 1342(d)) is amended by
adding at the end the following:
``(5) The Administrator may not object under paragraph (2) to the
issuance of a permit by a State on the basis of--
``(A) the Administrator's interpretation of a water quality
standard that has been adopted by the State and approved by the
Administrator under section 303(c); or
``(B) the implementation of any Federal guidance that directs
the interpretation of the State's water quality standards.''.
SEC. 3. PERMITS FOR DREDGED OR FILL MATERIAL.
(a) Authority of EPA Administrator.--Section 404(c) of the Federal
Water Pollution Control Act (33 U.S.C. 1344(c)) is amended--
(1) by striking ``(c)'' and inserting ``(c)(1)''; and
(2) by adding at the end the following:
``(2) Paragraph (1) shall not apply to any permit if the State in
which the discharge originates or will originate does not concur with
the Administrator's determination that the discharge will result in an
unacceptable adverse effect as described in paragraph (1).''.
(b) State Permit Programs.--The first sentence of section 404(g)(1)
of such Act (33 U.S.C. 1344(g)(1)) is amended by striking ``The
Governor of any State desiring to administer its own individual and
general permit program for the discharge'' and inserting ``The Governor
of any State desiring to administer its own individual and general
permit program for some or all of the discharges''.
SEC. 4. DEADLINES FOR AGENCY COMMENTS.
Section 404 of the Federal Water Pollution Control Act (33 U.S.C.
1344) is amended--
(1) in subsection (m) by striking ``ninetieth day'' and
inserting ``30th day (or the 60th day if additional time is
requested)''; and
(2) in subsection (q)--
(A) by striking ``(q)'' and inserting ``(q)(1)''; and
(B) by adding at the end the following:
``(2) The Administrator and the head of a department or agency
referred to in paragraph (1) shall each submit any comments with
respect to an application for a permit under subsection (a) or (e) not
later than the 30th day (or the 60th day if additional time is
requested) after the date of receipt of an application for a permit
under that subsection.''.
SEC. 5. APPLICABILITY OF AMENDMENTS.
The amendments made by this Act shall apply to actions taken on or
after the date of enactment of this Act, including actions taken with
respect to permit applications that are pending or revised or new
standards that are being promulgated as of such date of enactment.
Purpose of the Legislation and Summary
The ``Clean Water Cooperative Federalism Act of 2011,''
H.R. 2018, amends the Federal Water Pollution Control Act to
restore the long-standing relationship between states and the
U.S. Environmental Protection Agency as co-regulators under the
Act and preserve the authority of each state to make
determinations relating to the state's water quality standards
and permitting.
Background and Need for the Legislation
The objective of the Federal Water Pollution Control Act
(commonly known as the ``Clean Water Act'' or the ``CWA'') is
to restore and maintain the chemical, physical, and biological
integrity of the nation's waters. The primary mechanism for
achieving this objective is the CWA's prohibition on the
discharge into a waterbody of a pollutant without a National
Pollutant Discharge Elimination System (``NPDES'') permit.
NPDES permits are a basic regulatory tool of the CWA. The CWA
also regulates, through a separate permit program, the
discharge of dredged or fill material into waterbodies,
including wetlands. The U.S. Environmental Protection Agency
(``EPA'') has the basic responsibility for administering and
enforcing most of the CWA, and the U.S. Army Corps of Engineers
(``Corps'') has lead responsibility for administering the
dredged or fill (section 404) permit program.
The CWA calls on states to establish water quality
standards for the waterbodies in their states. Water quality
standards are to serve as a mechanism to establish goals for
the quality of the Nation's waters and as a regulatory basis
when standardized technology controls for point source
discharges are determined to be inadequate to meet the water
quality standards for a waterbody and water quality-based
controls are to be developed. States are required to
periodically (at least once each three years) review their
water quality standards and, as appropriate, modify and adopt
new standards. Water quality standards define the goals for a
waterbody by designating its uses, setting water quality
criteria to protect those uses, and establishing general policy
provisions to protect water quality.
The CWA does not contemplate a single, federally-led water
quality program. Rather, Congress intended the states and EPA
to implement the CWA as a federal-state partnership where the
states and EPA act as co-regulators. The CWA established a
system where states can receive EPA approval to implement water
quality programs under state law, in lieu of federal
implementation. These states are called ``authorized states.''
Under the CWA, 47 states and territories have been authorized
to implement NPDES permits and enforce permits.
Even when a state has the lead authority to implement the
CWA's programs, EPA retains residual authority under the CWA to
review certain actions by the state in implementing the CWA.
For example, when a state proposes issuing an NPDES permit, EPA
may review and object to it, and when a state adopts a new or
revised water quality standard, the state is to submit such
standards to EPA for review and approval/disapproval. EPA also
retains authority to oversee and object to the Corps' issuance
of section 404 permits for the discharge of dredged or fill
material. Once EPA has approved a state standard or permit, or
a Corps section 404 permit, the implementation and
interpretation of that standard or permit is left to the state
or the Corps, respectively.
Recently, however, EPA has abandoned its proper role of
approving state programs and ensuring that the standards that
states adopt meet the minimum requirements of the CWA. Instead,
EPA has decided to get involved in the implementation of state
standards, and in second-guessing states with respect to how
standards are to be implemented and even second-guessing EPA's
own prior determinations that a state standard meets the
minimum requirements of the CWA. EPA also has inserted itself
into the states' and the Corps' permit issuance decisions and
is second-guessing state and Corps permitting decisions.
For example, in November 2010, EPA decided to federally
promulgate water quality standards for nutrients in Florida,
even though the state was well underway in developing its own,
scientifically defensible nutrient standards for the state, and
even though EPA had earlier approved Florida's nutrient
criteria development plans. In addition, EPA has begun pressing
states in other ways to adopt nutrient standards and implement
other CWA limitations in NPDES discharge permits. EPA has
reminded states of its position that states with authorized CWA
permitting authority cannot issue permits in the face of an
agency objection, and has threatened to hold up permits from
issuance or withhold Federal financial assistance from states.
EPA also formalized in 2009, with the Corps and the
Department of Interior, an extra-regulatory review process,
referred to as an ``Enhanced Coordination Process,'' of CWA
section 404 dredged or fill permits for Appalachian region
surface coal mining projects. This new process added a minimum
of 60 days and potentially many months of review to the
existing review process entirely outside of, and in addition
to, the existing section 404 permitting procedures and
timelines. At the end of this new process, only if issues
identified by EPA are resolved in individual permit
applications may those permits move forward to the Corps for
processing and incorporation of new permit terms or conditions
dictated by EPA during the process. If EPA's concerns remain
unresolved at the close of the process period, EPA then may
initiate ``veto'' procedures to prohibit the issuance of a
permit. In practice, EPA has utilized the process to identify
almost 250 coal-related section 404 permits currently pending
with the Corps, and numerous permit applications remain
indefinitely stalled.
Further, in an unprecedented move and without alleging any
violation of a permit, in September 2010, EPA initiated steps
to revoke a section 404 permit issued two years earlier for a
surface coal mining operation in West Virginia. The permit was
for the Arch Coal, Mingo Logan, Inc., Spruce No. 1 Surface
Mine. Prior to the issuance of the permit, Arch Coal had
conducted an extensive 10-year environmental review, including
a 1,600 page Environmental Impact Statement (EIS) in which EPA
fully participated and agreed to all the terms and conditions
included in the authorized permit. Subsequently, the mine
operated pursuant to and in full compliance with the Section
404 authorization. Nevertheless, EPA issued a determination
that EPA withdraw the discharge authorization.
By second-guessing and inserting itself into the states'
and the Corps' standards and permitting decisions, EPA has
upset the long-standing balance between federal and state
partners in regulating the nation's waters, and undermined the
system of cooperative federalism established under the CWA in
which the primary responsibilities for water pollution control
are allocated to the states. EPA's actions have created an
atmosphere of regulatory uncertainty for the regulated
community, and have had a chilling effect on the Nation's
economy and job creation.
The sponsors of H.R. 2018 introduced this legislation to
halt these sorts of recent actions where EPA has gone beyond
its appropriate role as the approver of programs and standards
and instead has attempted to directly implement water quality
programs, including standards and permits, in approved states,
and second-guess the judgment of the water quality
professionals in those states.
H.R. 2018 aims to provide common sense protections for
states' EPA-approved water quality standards and permitting
authorities under the CWA. Without these protections, state
regulation, as approved by EPA, can still be usurped by EPA,
creating a climate for regulatory uncertainty and delays.
Legislative History
On May 26, 2011, Committee on Transportation and
Infrastructure Chairman John Mica introduced H.R. 2018, the
``Clean Water Cooperative Federalism Act of 2011.'' On June 22,
2011, the Committee on Transportation and Infrastructure met in
open session to consider H.R. 2018, and ordered the bill
reported favorably to the House by roll call vote with a quorum
present. The vote was 35 yeas to 19 nays. An amendment was
offered in Committee by Mrs. Capito, which was adopted by voice
vote. The amendment made a clarifying change to the bill. The
amendment stated that amendments that H.R. 2018 made to the
Clean Water Act would apply to actions taken on or after the
date of enactment of H.R. 2018, including actions that are
pending or revised or new standards that are being promulgated
as of such date of enactment. Mrs. Capito also offered and
withdrew an amendment that would have required EPA to conduct
an analysis of the impacts, on employment and economic
activity, of any EPA action covered under the bill. Mr. Bishop
offered an amendment that would have excluded, from coverage
under the bill, any waters that EPA determines are a source for
a public drinking water supply, provide flood protection for
communities, are a valuable fish and wildlife habitat that
provide benefits to the economy, or are coastal recreational
waters. The amendment was defeated in a voice vote.
Hearings
On May 5 and 11, 2011, the Subcommittee on Water Resources
and Environment held hearings to receive testimony from state
regulators, the mining industry, impacted businesses,
economists, and EPA on EPA's surface mining policies and other
related extra-regulatory activities.
Committee Votes
Clause 3(b) of rule XIII of the House of Representatives
requires each committee report to include the total number of
votes cast for and against on each record vote on a motion to
report and on any amendment offered to the measure or matter,
and the names of those members voting for and against. During
consideration of H.R. 2018, a total of one roll call vote was
taken, which was on a final vote ordering the bill reported as
amended. The bill, as amended, was reported to the House with a
favorable recommendation after a record vote which was disposed
of as follows:
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee on Transportation and
Infrastructure's oversight findings and recommendations are
reflected in this report.
Cost of Legislation
Clause 3(d)(2) of rule XIII of the Rules of the House of
Representatives does not apply where a cost estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974 has been timely submitted prior to the filing of the
report and is included in the report. Such a cost estimate is
included in this report.
New Budget Authority and Tax Expenditures
In compliance with clause 3(c)(2) of rule XIII of the Rules
of the House of Representatives, the Committee adopts as its
own the estimate of new budget authority, entitlement
authority, or tax expenditures or revenues contained in the
cost estimate prepared by the Director of the Congressional
Budget Office pursuant to section 402 of the Congressional
Budget Act of 1974, included below.
Congressional Budget Office Cost Estimate
With respect to the requirement of clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
402 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for H.R. 2018 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, June 30, 2011.
Hon. John L. Mica,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2018, the Clean
Water Cooperative Federalism Act of 2011.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Robert A. Sunshine
(For Douglas W. Elmendorf, Director).
Enclosure.
H.R. 2018--Clean Water Cooperative Federalism Act of 2011
H.R. 2018 would amend the Clean Water Act (CWA) to shift
various regulatory powers concerning water treatment and the
development of wetlands from the Environmental Protection
Agency (EPA) to individual states. Major changes to the CWA
would:
Prohibit EPA from issuing a new water
quality standard in any case in which a state standard
has been approved by EPA, unless the state concurs with
EPA that the revised or new standard is necessary to
meet the requirement of the CWA;
Prohibit EPA from withdrawing approval of a
state program for issuing water quality permits under
the CWA, or from limiting federal financial assistance
for a state permitting program on the basis that EPA
disagrees with the state regarding a standard that the
state has adopted and EPA has approved;
Prohibit EPA from vetoing a permitting
decision by the Army Corp of Engineers involving
wetlands unless the state concurs with the veto;
Allow states to assume and administer parts
of the CWA permitting program rather than all of it or
none of it, as is the case under current law; and
Shorten the deadlines applicable to federal
agencies for making decisions on some permits to dredge
and fill wetlands.
Many of the restrictions posed by this bill would affect
some aspects of EPA's longstanding oversight and enforcement
role related to state water quality established under the CWA.
Currently, EPA usually spends more than $2 billion each year on
activities related to the CWA (including grants to states).
However, many of the activities that would be precluded under
H.R. 2018 occur infrequently under current law and have not
accounted for a significant fraction of the annual resources
devoted to implementing the CWA. (For example, since the
inception of the CWA in 1972, EPA has vetoed permitting
decisions by the Army Corp of Engineers 13 times, and EPA has
never withdrawn a state's delegated program.) Therefore, CBO
estimates that enacting this legislation would not have a
significant impact on EPA's budget to implement the CWA.
Pay-as-you-go procedures do not apply to H.R. 2018 because
enacting the bill would not affect direct spending or revenues.
H.R. 2018 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Susanne S.
Mehlman. This estimate was approved by Theresa Gullo, Deputy
Assistant Director for Budget Analysis.
Performance Goals and Objectives
With respect to the requirement of clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives, the
performance goals and objectives of this legislation are to
reduce regulatory burdens caused by EPA's second-guessing and
inserting itself into the states' standards and permitting
decisions, by restoring the long-standing system of cooperative
federalism established under the CWA in which the primary
responsibilities for water pollution control are allocated to
the states.
Advisory of Earmarks
In compliance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2018 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.
Federal Mandates Statement
The Committee adopts as its own the estimate of Federal
mandates prepared by the Director of the Congressional Budget
Office pursuant to section 423 of the Unfunded Mandates Reform
Act (Public Law 104-4).
Preemption Clarification
Section 423 of the Congressional Budget Act of 1974
requires the report of any Committee on a bill or joint
resolution to include a statement on the extent to which the
bill or joint resolution is intended to preempt state, local,
or tribal law. The Committee states that H.R. 2018 does not
preempt any state, local, or tribal law.
Advisory Committee Statement
No advisory committee within the meaning of section 5(b) of
the Federal Advisory Committee Act was created by this
legislation.
Applicability to the Legislative Branch
The Committee finds that the legislation does not relate to
the terms and conditions of employment or access to public
services or accommodations within the meaning of section
102(b)(3) of the Congressional Accountability Act (Public Law
104-1).
Section-by-Section Analysis of the Legislation
Section 1. Short Title
Section 1 of the bill designates the title of the bill as
the ``Clean Water Cooperative Federalism Act of 2011.''
Section 2. State Water Quality Standards
Section 2(a) of the bill (``State Water Quality
Standards'') amends section 303(c)(4) of the CWA by restricting
EPA's ability to issue a revised or new water quality standard
for a pollutant whenever a state has adopted and EPA already
has approved a water quality standard for that pollutant,
unless the state concurs with the Administrator's determination
that the revised or new standard is necessary to meet the
requirements of the CWA.
Section 303 of the CWA authorizes EPA to approve state
standards and to establish federal standards if needed to meet
the requirements of the Act. By restricting EPA's ability to
override an existing state standard if it already has been
approved by EPA, EPA as a co-regulator under the CWA would be
forced to work together more closely, in a more cooperative
fashion, with the state. H.R. 2018 would prevent unilateral
actions by EPA that second-guess the decisions of the state
regulatory agency.
In opposing this bill, it has been implied by some that the
states cannot be trusted and that only EPA can protect water
quality. The Committee has heard from representatives of the
water quality programs in many states about how they implement
their approved (by EPA) water quality programs under the CWA,
and H.R. 2018 would not create a ``race to the bottom'' whereby
state regulators would abandon their mission to protect water
quality. H.R. 2018 maintains EPA's proper and appropriate
authority to approve state programs and to approve state water
quality standards.
Section 2(b) of the bill (``Federal Licenses and Permits'')
amends section 401(a) of the CWA by prohibiting EPA from
superseding a water quality certification granted by a state
under CWA section 401, that a discharge will comply with the
applicable water quality requirements of sections 301, 302,
303, 306, and 307 of the CWA. Section 401 of the CWA vests in
states alone the authority to decide whether or not a proposed
Federal project or Federal action will adversely affect state
water quality standards. Recently, EPA has suggested that they
can override state determinations. This suggestion is
unprecedented. H.R. 2018 restricts EPA's ability to carry out
its threat to override state water quality certifications.
Section 2(c) of the bill (``State NPDES Permit Programs'')
amends section 402(c) of the CWA by prohibiting EPA from
withdrawing approval of a state water quality permitting
program under CWA section 402 (NPDES Permits), or from limiting
Federal financial assistance for the state water quality
permitting program, on the basis that EPA disagrees with the
state regarding (a) a water quality standard that a state has
adopted and EPA has approved under section 303(c), or (b) the
implementation of any federal guidance that directs a re-
interpretation of the state's approved water quality standards.
Section 2(d) of the bill (``Limitation on Authority of
Administrator To Object to Individual Permits'') amends section
402(d) of the CWA by prohibiting EPA from objecting to a
state's issuance of an NPDES permit on the basis of (a) EPA's
differing interpretation of an approved state water quality
standard, or (b) the implementation of any federal guidance
that directs a re-interpretation of the state's approved water
quality standards.
Under section 402 of the CWA, once EPA approves a state
water quality program, then that program is the permitting
authority under the CWA and states have the authority to issue
permits that they determine will meet state water quality
standards that have been approved by EPA. In certain cases, EPA
has the ability to independently enforce a state-issued permit.
However, EPA has not previously claimed the authority to invent
its own interpretation of what state water quality standards
mean and how they should be implemented. EPA is now threatening
these actions.
To prevent this from happening, H.R. 2018 limits EPA's
authority to object to state-issued permits. The bill also
limits EPA's authority to withdraw approval of a state NPDES
permitting program, or from limiting federal financial
assistance for the state water quality permitting program in
the specified circumstances. These limitations apply only in
situations where EPA is attempting to contradict a state
agency's interpretation of its own water quality standards.
EPA's recent attempts to rewrite state water quality standards
are unprecedented. By limiting such over-reaching by EPA, H.R.
2018 in no way affects EPA proper role in reviewing state
permits.
Section 3. Permits for Dredged or Fill Material
Section 3(a) of the bill (``Authority of EPA
Administrator'') amends section 404(c) of the CWA by
restricting EPA's ability to veto a Corps section 404
permitting decision under CWA section 404(c) unless the state
concurs with EPA's determination that the discharge of dredged
or fill material will result in an unacceptable adverse effect
on a state's waters, as described in CWA section 404(c)(1) (as
amended).
Under section 404(c) of the CWA, EPA has the authority to
veto a Corps permit for the discharge of dredged or fill
material to prevent unacceptable adverse effects on state
waters. Recently, EPA has alleged unacceptable adverse impacts
where a state agency (or the Corps) believes that none exist.
H.R. 2018 would limit EPA's ability to override a state (or
Corps) determination regarding whether there would be
unacceptable adverse impacts on the state's waters.
Section 3(b) of the bill (``State Permit Programs'') amends
section 404(g)(1) of the CWA by allowing a state to assume and
administer only parts of the section 404 permit program.
CWA section 404(g) authorizes states to assume
responsibility for implementing the CWA section 404 permit
program, but they are generally only allowed to assume the
entire program. Currently, only two states (New Jersey and
Michigan) have assumed responsibility for section 404
permitting in their states. Other states support a simplified
and more flexible process for state assumption of the section
404 permit program, including partial assumption of program
responsibilities, in order to improve effectiveness and provide
more efficient and effective permitting for applicants. H.R.
2018 would make it easier for states to assume and administer
only parts of the section 404 permit program.
Section 4. Deadlines for Agency Comments
Paragraph (1) of Section 4 of the bill amends section
404(m) of the CWA by shortening the deadline for the Fish and
Wildlife Service to submit comments to the Corps on a proposed
section 404 permit from 90 days to 30 days (or 60 days if
additional time is requested).
Paragraph (2) of Section 4 of the bill amends section
404(q) of the CWA by clarifying that the deadline for EPA and
other agencies to submit comments to the Corps on a proposed
section 404 permit is 30 days (or 60 days if additional time is
requested) after the date of receipt of the application for the
section 404 permit.
Under section 404(q) of the Clean Water Act, agencies are
required to enter into memoranda of understanding (MOUs) to
limit delays in the issuance of permits by the Corps. In 1992,
EPA entered into an MOU with the Corps agreeing to limit its
review time to 30 days, which could be extended to a maximum of
60 days. H.R. 2018 holds EPA and other agencies to their
obligation to prevent permitting delays.
Section 5. Applicability of Amendments
Section 5 states that amendments that H.R. 2018 would make
to the CWA shall apply to actions taken on or after the date of
enactment of H.R. 2018, including actions that are pending or
revised or new standards that are being promulgated as of such
date of enactment. Section 5 makes it clear that H.R. 2018
would apply to both pending and future permitting and standards
actions.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
FEDERAL WATER POLLUTION CONTROL ACT
* * * * * * *
TITLE III--STANDARDS AND ENFORCEMENT
* * * * * * *
WATER QUALITY STANDARDS AND IMPLEMENTATION PLANS
Sec. 303. (a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(4)(A) The Administrator shall promptly prepare and publish
proposed regulations setting forth a revised or new water
quality standard for the navigable waters involved--
[(A)] (i) if a revised or new water quality standard
submitted by such State under paragraph (3) of this
subsection for such waters is determined by the
Administrator not to be consistent with the applicable
requirements of this Act, or
[(B)] (ii) in any case where the Administrator
determines that a revised or new standard is necessary
to meet the requirements of this Act.
[The Administrator shall promulgate]
(B) The Administrator shall promulgate any revised or new
standard under this paragraph not later than ninety days after
he publishes such proposed standards, unless prior to such
promulgation, such State has adopted a revised or new water
quality standard which the Administrator determines to be in
accordance with this Act.
(C) Notwithstanding subparagraph (A)(ii), the Administrator
may not promulgate a revised or new standard for a pollutant in
any case in which the State has submitted to the Administrator
and the Administrator has approved a water quality standard for
that pollutant, unless the State concurs with the
Administrator's determination that the revised or new standard
is necessary to meet the requirements of this Act.
* * * * * * *
TITLE IV--PERMITS AND LICENSES
CERTIFICATION
Sec. 401. (a)(1) * * *
* * * * * * *
(7) With respect to any discharge, if a State or interstate
agency having jurisdiction over the navigable waters at the
point where the discharge originates or will originate
determines under paragraph (1) that the discharge will comply
with the applicable provisions of sections 301, 302, 303, 306,
and 307, the Administrator may not take any action to supersede
the determination.
* * * * * * *
NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
Sec. 402. (a) * * *
* * * * * * *
(c)(1) * * *
* * * * * * *
(5) Limitation on Authority of Administrator to Withdraw
Approval of State Programs.--The Administrator may not withdraw
approval of a State program under paragraph (3) or (4), or
limit Federal financial assistance for the State program, on
the basis that the Administrator disagrees with the State
regarding--
(A) the implementation of any water quality standard
that has been adopted by the State and approved by the
Administrator under section 303(c); or
(B) the implementation of any Federal guidance that
directs the interpretation of the State's water quality
standards.
(d)(1) * * *
* * * * * * *
(5) The Administrator may not object under paragraph (2) to
the issuance f a permit by a State on the basis of--
(A) the Administrator's interpretation of a water
quality standard that has been adopted by the State and
approved by the Administrator under section 303(c); or
(B) the implementation of any Federal guidance that
directs the interpretation of the State's water quality
standards.
* * * * * * *
PERMITS FOR DREDGED OR FILL MATERIAL
Sec. 404. (a) * * *
* * * * * * *
[(c)] (c)(1) The Administrator is authorized to prohibit the
specification (including the withdrawal of specification) of
any defined area as a disposal site, and he is authorized to
deny or restrict the use of any defined area for specification
(including the withdrawal of specification) as a disposal site,
whenever he determines, after notice and opportunity for public
hearings, that the discharge of such materials into such area
will have an unacceptable adverse effect on municipal water
supplies, shellfish beds and fishery areas (including spawning
and breeding areas), wildlife, or recreational areas. Before
making such determination, the Administrator shall consult with
the Secretary. The Administrator shall set forth in writing and
make public his findings and his reasons for making any
determination under this subsection.
(2) Paragraph (1) shall not apply to any permit if the State
in which the discharge originates or will originate does not
concur with the Administrator's determination that the
discharge will result in an unacceptable adverse effect as
described in paragraph (1).
* * * * * * *
(g)(1) [The Governor of any State desiring to administer its
own individual and general permit program for the discharge]
The Governor of any State desiring to administer its own
individual and general permit program for some or all of the
discharges of dredged or fill material into the navigable
waters (other than those waters which are presently used, or
are susceptible to use in their natural condition or by
reasonable improvement as a means to transport interstate or
foreign commerce shoreward to their ordinary high water mark,
including all waters which are subject to the ebb and flow of
the tide shoreward to their mean high water mark, or mean
higher high water mark on the west coast, including wetlands
adjacent thereto), within its jurisdiction may submit to the
Administrator a full and complete description of the program it
proposes to establish and administer under State law or under
an interstate compact. In addition, such State shall submit a
statement from the attorney general (or the attorney for those
State agencies which have independent legal counsel), or from
the chief legal officer in the case of an interstate agency,
that the laws of such State, or the interstate compact, as the
case may be, provide adequate authority to carry out the
described program.
* * * * * * *
(m) Not later than the [ninetieth day] 30th day (or the 60th
day if additional time is requested) after the date on which
the Secretary notifies the Secretary of the Interior, acting
through the Director of the United States Fish and Wildlife
Service that (1) an application for a permit under subsection
(a) of this section has been received by the Secretary, or (2)
the Secretary proposes to issue a general permit under
subsection (e) of this section, the Secretary of the Interior,
acting through the Director of the United States Fish and
Wildlife Service, shall submit any comments with respect to
such application or such proposed general permit in writing to
the Secretary.
* * * * * * *
[(q)] (q)(1) Not later than the one-hundred-eightieth day
after the date of enactment of this subsection, the Secretary
shall enter into agreements with the Administrator, the
Secretaries of the Departments of Agriculture, Commerce,
Interior, and Transportation, and the heads of other
appropriate Federal agencies to minimize, to the maximum extent
practicable, duplication, needless paperwork, and delays in the
issuance of permits under this section. Such agreements shall
be developed to assure that, to the maximum extent practicable,
a decision with respect to an application for a permit under
subsection (a) of this section will be made not later than the
ninetieth day after the date the notice of such application is
published under subsection (a) of this section.
(2) The Administrator and the head of a department or agency
referred to in paragraph (1) shall each submit any comments
with respect to an application for a permit under subsection
(a) or (e) not later than the 30th day (or the 60th day if
additional time is requested) after the date of receipt of an
application for a permit under that subsection.
* * * * * * *
DISSENTING VIEWS
In my opinion, consideration of H.R. 2018, the Clean Water
Cooperative Federalism Act of 2011, is ill-timed given the
legislation's far-reaching implications for water quality and
public health. Members of this committee have not had an
opportunity to investigate many of the facts and circumstances
related to the underlying issues this bill purports to address,
including its potential consequences.
While the Subcommittee on Water Resources and Environment
has held three hearings on issues related to surface coal
mining and nutrient water pollution, none of these hearings
specifically examined the substantive changes to the Federal
Water Pollution Control Act, more commonly known as the Clean
Water Act, that are included in this legislation. In fact, the
final of these three hearings, related to nutrient water
pollution, was held two days after the Full Committee markup of
H.R. 2018.
This lack of careful consideration on the implications of
this legislation is readily apparent. For example, while
proponents argue that portions of this bill were drafted to
address recent EPA actions on nutrient water quality criteria,
the implications of this legislation extend beyond these issues
and impact both Federal and State abilities to reduce the
discharge of any pollutants under the Act.
In my view, it is unfortunate that the Members of the
Transportation and Infrastructure Committee were asked to vote
on this legislation before the implications of H.R. 2018 had
been thoroughly discussed and debated.
In addition, according to a technical review of this
legislation by the U.S. Environmental Protection Agency (EPA),
which I am including as part of my dissenting views, the
potential adverse effect of this legislation would be to
``overturn almost 40 years of Federal legislation by preventing
EPA from protecting public health and water quality.''
According to EPA, H.R. 2018 fundamentally alters the
current Federal/State relationship out med in the Clean Water
Act and would hinder the federal government's ability to ensure
there is an equitable level of protection provided to our
nation's waters. The bill also prevents EPA, without State
concurrence, from taking action to revise outdated State water
quality standards.
I am also concerned that any action to allow for less
protective water quality standards will have an equivalent
negative impact on the quality and protectiveness of pollution
discharge permits, assessing whether waterbodies are impaired,
establishing and implementing of Total Maximum Daily Load
(TMDL) allocations; and certifying whether other federal
permits or licenses comply with state water quality standards.
This legislation makes a State the final arbiter of whether
a permit, license, or standard is protective of water quality
even if the resulting decision adversely impacts the water
quality of neighboring states. Furthermore, EPA would be
prohibited from resolving conflicting State decisions on
protecting water quality, and States may be left with no
recourse but to litigate conflicting standards in court.
H.R. 2018 also inhibits Federal and State efforts to
incorporate greater scientific information on the impacts of
pollution to human health and the environment into pollution
discharge limits, and prohibits Federal efforts to incorporate
more stringent discharge limits into permit programs to address
emerging contaminants and pollutants.
My district in New York is separated from Connecticut by
the Long Island Sound. Over time, the number of polluters in
the area increased exponentially, killing fish, lobsters and
imperiling the $5 billion of economic output that the region
depends upon. Fortunately, the States decided that the Sound
was impaired and proposed a revised, more restrictive water
quality standard for nitrogen--a $5 billion bullet dodged.
Had Connecticut, for example, decided against the revised
standard despite all the scientific evidence for doing so,
under current law EPA could step in and require the stricter
standard. Under H.R. 2018, EPA would be stripped of that
leverage, and polluters in Connecticut could continue to
discharge excessive amounts of nitrogen into the Sound, leaving
my constituents and the State of New York without any recourse
under the Clean Water Act to stop them.
I recently learned that Chicago, Illinois, is the only
major metropolitan area that does not disinfect its treated
sewage before dumping it into the Chicago River. Under this
bill, EPA would have no authority to require the State to adopt
a new standard for disinfection--as they did last month to
protect the public from dangerous pathogens and bacteria.
If this bill were to pass, individual States could decide
that collective efforts to address the water quality
impairments in the Chesapeake Bay, Puget Sound, or the Gulf of
Mexico are unnecessarily restrictive or burdensome, and refuse
to participate in a meaningful way towards restoration of these
regional waterbodies. This go-it-alone approach flies in the
face of science, common sense, and decades of experience
implementing of the Clean Water Act.
In my view, the far-reaching implications of this bill will
have a significant adverse impact on our nation's clean water.
I oppose this bill.
Timothy H. Bishop.
Summary: EPA Analysis of H.R. 2018
The bill would overturn almost 40 years of Federal legislation
by preventing EPA from protecting public health and water
quality.
This bill would significantly undermine EPA's
longstanding role under the Clean Water Act (CWA) to assure
that state water quality standards protect clean water and
public health and comply with the law. It would fundamentally
disrupt the Federal-State relationship carefully crafted by the
1972 CWA and would hinder the federal government's ability to
ensure that states provide an equitable level of protection to
their waters.
This bill would prevent EPA from taking action
without state concurrence to update outdated State standards
even in the face of significant scientific information
demonstrating threats to human health or aquatic life from
emerging contaminants or other pollutants.
This bill would unnecessarily delay EPA approval
of new or revised State water quality standards, even where
there are no concerns, and could lead to a higher rate of EPA
disapprovals.
The bill would prevent EPA from providing its views on whether
a proposed project that pollutes or even destroys lakes,
streams, or wetlands would violate CWA standards.
H.R. 2018 would prevent EPA from providing its
views on whether a proposed project that pollutes or even
destroys lakes, streams, or wetlands would violate CWA
standards. It would also prevent EPA from taking necessary
action under existing law to protect public health and water
quality.
Any action by individual States to allow for less
protective water quality standards could affect the quality and
protectiveness of state permits, Total Maximum Daily Loads, or
the assessment of impaired waters. This would limit EPA's
ability to ensure that the State's overall program complies
with the CWA.
This bill would limit EPA from meeting its
current CWA responsibility to facilitate disputes between
States as to whether permit conditions protect water quality in
all affected States, which may leave states with no legal
recourse but to litigate conflicting standards in court.
The bill would remove EPA's existing state coordination role
and eliminate the careful Federal/State balance established in
the current CWA.
Removing EPA's program oversight role is likely
to reduce the quality of state-issued permits and may likely
increase the number of lawsuits by citizens and environmental
groups. This would shift the dispute resolution process from a
productive state-EPA dialogue toward adversarial litigation.
Restricting EPA's authority to ensure that states
implement their programs as approved may lead states to reduce
the protection they provide to their waters, thereby leading to
a ``race to the bottom'' that jeopardizes water quality and
human health.
H.R. 2018 would allow individual States to decide
that collective efforts to address the water quality
impairments in the Chesapeake Bay, Puget Sound, or the Gulf of
Mexico are unnecessarily restrictive or burdensome, and refuse
to participate in a meaningful way towards restoration of these
regional waterbodies, potentially reversing decades of progress
under the CWA.
The bill would prevent EPA from protecting communities from
unacceptable adverse impacts to their water supplies and the
environment caused by Federal permits.
This legislation would remove EPA's ability to
take action to protect communities from projects that would
have unacceptable adverse effects to our nation's waters and
public health. This would fundamentally disrupt the balance
established by the original CWA in 1972--a law that carefully
constructed complementary roles for EPA, the Corps, and states.
EPA has only used its CWA Section 404(c)
authority 13 times in the nearly 40-year history of the CWA.
This bill would substantively eliminate the opportunity for
EPA, the federal government's expert on water quality, to
comment on Federal permits impacting water quality and public
health.
This bill would greatly limit EPA's ability to
provide constructive and expert comments to the Corps on
Section 404 permit applications. The bill would reduce the
quality of information available to EPA and the time available
to review it, resulting in more frequent EPA objections based
on lack of information and unnecessary delays in the permitting
process.
This provision would require the Corps to adopt,
through regulation, a more complex permitting process, which
would add work for the Corps and uncertainty for applicants.