[House Report 114-93]
[From the U.S. Government Publishing Office]
114th Congress } { Report
HOUSE OF REPRESENTATIVES
1st Session } { 114-93
======================================================================
REGULATORY INTEGRITY PROTECTION ACT OF 2015
_______
April 27, 2015.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Shuster, from the Committee on Transportation and Infrastructure,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1732]
[Including cost estimate of the Congressional Budget Office]
The Committee on Transportation and Infrastructure, to whom
was referred the bill (H.R. 1732) to preserve existing rights
and responsibilities with respect to waters of the United
States, 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 Legislation........................................... 4
Background and Need for the Legislation.......................... 4
Hearings......................................................... 13
Legislative History and Consideration............................ 14
Committee Votes.................................................. 14
Committee Oversight Findings..................................... 18
New Budget Authority and Tax Expenditures........................ 18
Congressional Budget Office Cost Estimate........................ 18
Performance Goals and Objectives................................. 19
Advisory of Earmarks............................................. 20
Duplication of Federal Programs.................................. 20
Disclosure of Directed Rulemakings............................... 20
Federal Mandates Statement....................................... 20
Preemption Clarification......................................... 20
Advisory Committee Statement..................................... 20
Applicability to the Legislative Branch.......................... 20
Section-by-Section Analysis of the Legislation................... 21
Changes in Existing Law Made by the Bill, as Reported............ 27
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 ``Regulatory Integrity Protection Act of
2015''.
SEC. 2. WITHDRAWAL OF EXISTING PROPOSED RULE.
Not later than 30 days after the date of enactment of this Act, the
Secretary of the Army and the Administrator of the Environmental
Protection Agency shall withdraw the proposed rule described in the
notice of proposed rule published in the Federal Register entitled
``Definition of `Waters of the United States' Under the Clean Water
Act'' (79 Fed. Reg. 22188 (April 21, 2014)) and any final rule based on
such proposed rule (including RIN 2040-AF30).
SEC. 3. DEVELOPMENT OF NEW PROPOSED RULE.
(a) In General.--The Secretary of the Army and the Administrator of
the Environmental Protection Agency shall develop a new proposed rule
to define the term ``waters of the United States'' as used in the
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).
(b) Development of New Proposed Rule.--In developing the new proposed
rule under subsection (a), the Secretary and the Administrator shall--
(1) take into consideration the public comments received on--
(A) the proposed rule referred to in section 2;
(B) the accompanying economic analysis of the
proposed rule entitled ``Economic Analysis of Proposed
Revised Definition of Waters of the United States''
(dated March 2014); and
(C) the report entitled ``Connectivity of Streams &
Wetlands to Downstream Waters: A Review & Synthesis of
Scientific Evidence'' (EPA/600/R-14/475F; dated January
2015);
(2) jointly consult with and solicit advice and
recommendations from representative State and local officials,
stakeholders, and other interested parties on how to define the
term ``waters of the United States'' as used in the Federal
Water Pollution Control Act; and
(3) prepare a regulatory proposal that will, consistent with
applicable rulings of the United States Supreme Court,
specifically identify those waters covered under, and those
waters not covered under, the Federal Water Pollution Control
Act--
(A) taking into consideration--
(i) the public comments referred to in
paragraph (1); and
(ii) the advice and recommendations made by
the State and local officials, stakeholders,
and other interested parties consulted under
this section; and
(B) incorporating the areas and issues where
consensus was reached with the parties.
(c) Federalism Consultation Requirements.--As part of consulting with
and soliciting advice and recommendations from State and local
officials under subsection (b), the Secretary and the Administrator
shall--
(1) seek to reach consensus with the State and local
officials on how to define the term ``waters of the United
States'' as used in the Federal Water Pollution Control Act;
(2) provide the State and local officials with notice and an
opportunity to participate in the consultation process under
subsection (b);
(3) consult with State and local officials that represent a
broad cross-section of regional, economic, policy, and
geographic perspectives in the United States;
(4) emphasize the importance of collaboration with and among
the State and local officials;
(5) allow for meaningful and timely input by the State and
local officials;
(6) recognize, preserve, and protect the primary rights and
responsibilities of the States to protect water quality under
the Federal Water Pollution Control Act, and to plan and
control the development and use of land and water resources in
the States;
(7) protect the authorities of State and local governments
and rights of private property owners over natural and manmade
water features, including the continued recognition of Federal
deference to State primacy in the development of water law, the
governance of water rights, and the establishment of the legal
system by which States mediate disputes over water use;
(8) incorporate the advice and recommendations of the State
and local officials regarding matters involving differences in
State and local geography, hydrology, climate, legal
frameworks, economies, priorities, and needs; and
(9) ensure transparency in the consultation process,
including promptly making accessible to the public all
communications, records, and other documents of all meetings
that are part of the consultation process.
(d) Stakeholder Consultation Requirements.--As part of consulting
with and soliciting recommendations from stakeholders and other
interested parties under subsection (b), the Secretary and the
Administrator shall--
(1) identify representatives of public and private
stakeholders and other interested parties, including small
entities (as defined in section 601 of title 5, United States
Code), representing a broad cross-section of regional,
economic, and geographic perspectives in the United States,
which could potentially be affected, directly or indirectly, by
the new proposed rule under subsection (a), for the purpose of
obtaining advice and recommendations from those representatives
about the potential adverse impacts of the new proposed rule
and means for reducing such impacts in the new proposed rule;
and
(2) ensure transparency in the consultation process,
including promptly making accessible to the public all
communications, records, and other documents of all meetings
that are part of the consultation process.
(e) Timing of Federalism and Stakeholder Consultation.--Not later
than 3 months after the date of enactment of this Act, the Secretary
and the Administrator shall initiate consultations with State and local
officials, stakeholders, and other interested parties under subsection
(b).
(f) Report.--The Secretary and the Administrator shall prepare a
report that--
(1) identifies and responds to each of the public comments
filed on--
(A) the proposed rule referred to in section 2;
(B) the accompanying economic analysis of the
proposed rule entitled ``Economic Analysis of Proposed
Revised Definition of Waters of the United States''
(dated March 2014); and
(C) the report entitled ``Connectivity of Streams &
Wetlands to Downstream Waters: A Review & Synthesis of
Scientific Evidence'' (EPA/600/R-14/475F; dated January
2015);
(2) provides a detailed explanation of how the new proposed
rule under subsection (a) addresses the public comments
referred to in paragraph (1);
(3) describes in detail--
(A) the advice and recommendations obtained from the
State and local officials consulted under this section;
(B) the areas and issues where consensus was reached
with the State and local officials consulted under this
section;
(C) the areas and issues of continuing disagreement
that resulted in the failure to reach consensus; and
(D) the reasons for the continuing disagreements;
(4) provides a detailed explanation of how the new proposed
rule addresses the advice and recommendations provided by the
State and local officials consulted under this section,
including the areas and issues where consensus was reached with
the State and local officials;
(5) describes in detail--
(A) the advice and recommendations obtained from the
stakeholders and other interested parties, including
small entities, consulted under this section about the
potential adverse impacts of the new proposed rule and
means for reducing such impacts in the new proposed
rule; and
(B) how the new proposed rule addresses such advice
and recommendations;
(6) provides a detailed explanation of how the new proposed
rule--
(A) recognizes, preserves, and protects the primary
rights and responsibilities of the States to protect
water quality and to plan and control the development
and use of land and water resources in the States; and
(B) is consistent with the applicable rulings of the
United States Supreme Court regarding the scope of
waters to be covered under the Federal Water Pollution
Control Act; and
(7) provides comprehensive regulatory and economic impact
analyses, utilizing the latest data and other information, on
how definitional changes in the new proposed rule will impact,
directly or indirectly--
(A) each program under the Federal Water Pollution
Control Act for Federal, State, and local government
agencies; and
(B) public and private stakeholders and other
interested parties, including small entities, regulated
under each such program.
(g) Publication.--
(1) Federal register notice.--Not later than 3 months after
the completion of consultations with and solicitation of
recommendations from State and local officials, stakeholders,
and other interested parties under subsection (b), the
Secretary and the Administrator shall publish for comment in
the Federal Register--
(A) the new proposed rule under subsection (a);
(B) a description of the areas and issues where
consensus was reached with the State and local
officials consulted under this section; and
(C) the report described in subsection (f).
(2) Duration of review.--The Secretary and the Administrator
shall provide not fewer than 180 days for the public to review
and comment on--
(A) the new proposed rule under subsection (a);
(B) the accompanying economic analysis for the new
proposed rule; and
(C) the report described in subsection (f).
(h) Procedural Requirements.--Subchapter II of chapter 5, and chapter
7, of title 5, United States Code (commonly known as the
``Administrative Procedure Act'') shall apply to the development and
review of the new proposed rule under subsection (a).
(i) State and Local Officials Defined.--In this section, the term
``State and local officials'' means elected or professional State and
local government officials or their representative regional or national
organizations.
PURPOSE OF THE LEGISLATION
The purpose of H.R. 1732 is to preserve existing rights and
responsibilities under the Federal Water Pollution Control Act
with respect to Waters of the United States by requiring the
U.S. Environmental Protection Agency (EPA) and the U.S. Army
Corps of Engineers (Corps) (collectively, the ``Agencies'') to
withdraw a proposed rule the Agencies have developed regarding
the scope of federal jurisdiction under the Federal Water
Pollution Control Act, consult with state and local officials,
stakeholders, and other interested parties on how to identify
those waters covered under, and those waters not covered under,
the Federal Water Pollution Control Act, and to develop a new
proposed rule after taking into consideration all of the
comments received on the original proposed rule and the advice
and recommendations made by the state and local officials,
stakeholders, and other interested parties that were consulted.
BACKGROUND AND NEED FOR THE LEGISLATION
Background
Congress enacted the Federal Water Pollution Control Act
Amendments of 1972 (commonly known as the ``Clean Water Act''
or ``CWA'') with the objective to ``restore and maintain the
chemical, physical, and biological integrity of the Nation's
waters.'' (See CWA Sec. 101(a); 33 U.S.C. Sec. 1251.) In
enacting the CWA, it was the ``policy of the Congress to
recognize, preserve, and protect the primary responsibilities
and rights of states to prevent, reduce, and eliminate
pollution, to plan the development and use (including
restoration, preservation, and enhancement) of land and water
resources, and to consult with the [EPA] Administrator in the
exercise of his authority under this Act.'' (See id. at
Sec. 101(b).)
The Clean Water Act prohibits the discharge of any
pollutant by any person, unless in compliance with one of the
enumerated permitting provisions in the Act. The two permitting
authorities in the CWA are section 402 (the National Pollutant
Discharge Elimination System, or ``NPDES''), for discharges of
pollutants from point sources, and section 404, for discharges
of dredged or fill material. While the goals of the Clean Water
Act speak to the restoration and maintenance of the ``Nation's
waters,'' both section 402 and 404 govern discharges to
``navigable waters,'' which are defined in section 502(7) of
the CWA as ``the waters of the United States, including the
territorial seas.''
EPA has the basic responsibility for implementing the CWA,
and is responsible for implementing the NPDES program under
section 402. Under the NPDES program, it is unlawful for a
point source to discharge pollutants into ``navigable waters,''
unless the discharge is authorized by and in compliance with an
NPDES permit issued by EPA (or by a state, under a comparable
approved state program).
EPA shares responsibility with the Corps for implementing
section 404 of the CWA. Under this permitting program, it is
unlawful to discharge dredged or fill materials into
``navigable waters,'' unless the discharge is authorized by and
in compliance with a dredge or fill (section 404) permit issued
by the Corps (or by a state, under a comparable approved state
program).
In enacting the CWA, Congress intended the states and EPA
to implement the Act as a federal-state partnership, where
these parties act as co-regulators. The CWA established a
system where EPA and the Corps provide a federal regulatory
floor, from which states can receive approval from EPA to
administer state water quality programs pursuant to state law,
at equivalent or possibly more stringent levels, in lieu of
federal implementation. Currently, 46 states have approved-
NPDES programs under section 402 of the Act, and two states
have approved-dredge or fill programs under section 404 of the
Act.
Historical administrative interpretations of federal jurisdiction under
the Clean Water Act
The Clean Water Act claims federal jurisdiction over the
Nation's ``navigable waters,'' which are defined in the Act as
``the waters of the United States, including the territorial
seas.'' (CWA Sec. 502(7); 33 U.S.C. Sec. 1362.)
Neither the statute nor the legislative history on the
definition of ``navigable waters'' in the CWA definitively
describes the outer reaches of jurisdiction under the Act. As a
result, EPA and the Corps have promulgated over the years
several sets of rules interpreting the agencies' jurisdiction
over ``waters of the United States'' and the corresponding
scope of CWA authority. The latest amendments to those rules
were promulgated in 1993.
Because the use of the term ``navigable waters,'' and
hence, ``waters of the United States,'' affects both sections
402 and 404 of the CWA, as well as related water quality
management provisions under the CWA, the existing regulations
defining the term ``waters of the United States'' are found in
several sections of the Code of Federal Regulations.
The current regulatory definition of the term ``waters of
the United States'' is:
``Waters of the United States'' or ``waters of the U.S.'' means:
(a) All waters which are currently used, were used in the
past, or may be susceptible to use in interstate or foreign
commerce, including all waters which are subject to the ebb and
flow of the tide;
(b) All interstate waters, including interstate
``wetlands;''
(c) All other waters such as intrastate lakes, rivers,
streams (including intermittent streams), mudflats, sandflats,
``wetlands,'' sloughs, prairie potholes, wet meadows, playa
lakes, or natural ponds the use, degradation, or destruction of
which would affect or could affect interstate or foreign
commerce including any such waters:
(1) Which are or could be used by interstate or
foreign travelers for recreational or other purposes;
(2) From which fish or shellfish are or could be
taken and sold in interstate or foreign commerce; or
(3) Which are used or could be used for industrial
purposes by industries in interstate commerce;
(d) All impoundments of waters otherwise defined as waters
of the United States under this definition;
(e) Tributaries of waters identified in paragraphs (a)
through (d) of this definition;
(f) The territorial sea; and
(g) ``Wetlands'' adjacent to waters (other than waters that
are themselves wetlands) identified in paragraphs (a) through
(f) of this definition.
Waste treatment systems, including treatment ponds or
lagoons designed to meet the requirements of CWA (other than
cooling ponds as defined in 40 CFR 423.11(m) which also meet
the criteria of this definition) are not waters of the United
States. This exclusion applies only to manmade bodies of water
which neither were originally created in waters of the United
States (such as disposal area in wetlands) nor resulted from
the impoundment of waters of the United States.
Waters of the United States do not include prior converted
cropland. Notwithstanding the determination of an area's status
as prior converted cropland by any other federal agency, for
the purposes of the Clean Water Act, the final authority
regarding Clean Water Act jurisdiction remains with EPA.
(See, e.g., 33 CFR Sec. 328.3; 40 CFR Sec. 122.2; 40 CFR
Sec. 230.3 for the definition in the agencies' regulations.)
Supreme Court cases on Clean Water Act jurisdiction
There has been a substantial amount of litigation in the
federal courts on the scope of CWA jurisdiction over the past
four decades, including three U.S. Supreme Court cases:
United States v. Riverside Bayview Homes, Inc.,
474 U.S. 121 (1985) (``Riverside Bayview'').
Solid Waste Association of Northern Cook County v.
United States Corps of Engineers, 531 U.S. 159 (2001) (also
known as ``SWANCC'').
The combined cases of Rapanos v. United States and
Carabell v. U.S. Army Corps of Engineers, 547 U.S. 715 (2006)
(collectively referred to as ``Rapanos'').
The Supreme Court, in the Riverside Bayview case, upheld
the Corps' jurisdiction over wetlands adjacent to
jurisdictional waters, and held that such wetlands were
``waters of the United States'' within the meaning of the Clean
Water Act. The Court could not say the Corps' conclusion that
the adjacent wetlands were inseparably bound up with the
jurisdictional waters is unreasonable.
However, in both the SWANCC and Rapanos case decisions, the
Supreme Court began to articulate limits to federal
jurisdiction under the CWA regarding the scope of what are
considered ``waters of the United States.'' Some view these
cases as signaling a narrowing of the interpreted scope of CWA
jurisdiction over ``waters of the United States'' because the
Supreme Court, in these cases, held in favor of the
petitioners, who had asserted that there are limits to federal
jurisdiction under the CWA. However, the court did not clearly
define what those jurisdictional limits are.
In the SWANCC case, the Supreme Court overturned the
authority of the Corps to regulate intrastate, isolated waters,
including wetlands (here, an abandoned sand and gravel pit with
excavation trenches that had evolved into seasonal and
permanent ponds) based solely on the presence of migratory
birds. The Court found nothing approaching a clear statement
from Congress that it intended CWA jurisdiction under section
404(a) to reach an abandoned sand and gravel pit such as the
ones involved in that case, and noted that there were
significant constitutional questions raised by the Corps'
application of their regulations. The Court also noted that
permitting the Corps to claim federal jurisdiction over ponds
and mudflats falling within the migratory bird rule would
result in a significant impingement of the states' traditional
and primary power over land and water use.
In the Rapanos case, the Supreme Court again questioned the
scope of CWA jurisdictional authority. However, the Court was
unable to agree on the proper test for determining the extent
to which federal jurisdiction applies to wetlands. The Court
issued a 4-1-4 opinion that did not produce a clear, legal
standard on determining jurisdiction under the CWA. Instead,
the Rapanos decision produced three distinct opinions on the
appropriate scope of federal authorities under the CWA: (1) the
plurality opinion, written by Justice Scalia, provided a
``relatively permanent/flowing waters'' test, supported by four
justices; (2) Justice Kennedy's opinion, which concurred with
Justice Scalia's opinion, but proposed a ``significant nexus''
test, and (3) Justice Stevens' dissenting opinion, supported by
the remaining justices, which advocated for maintenance of
existing EPA and Corps authority over waters and wetlands.
Administrative interpretations of the Supreme Court cases
Following the SWANCC and Rapanos decisions, EPA and the
Corps issued several guidance documents interpreting how the
Agencies would implement the Supreme Court decisions.
In January 2001, immediately following the Supreme Court's
decision in SWANCC, the Agencies published a guidance
memorandum that outlined the agencies' legal analysis of the
impacts of the SWANCC decision. (See Supreme Court Ruling
Concerning CWA jurisdiction over Isolated Waters (Jan. 19,
2001).)
In January 2003, the Agencies published a revised interim
guidance memorandum that amended the agencies' views on the
state of the law after the SWANCC case as to what waterbodies
are subject to federal jurisdiction under the CWA. (See 68 Fed.
Reg. 1991 (Jan. 15, 2003).)
Subsequent to the Supreme Court decision in Rapanos, the
Agencies developed interpretative guidance on how to implement
the Rapanos decision. In June 2007, the Agencies issued a
preliminary guidance memorandum aimed at answering questions
regarding CWA regulatory authority over wetlands and streams
raised by the Supreme Court in Rapanos. (See Joint Legal
Memorandum, Clean Water Act Jurisdiction Following the U.S.
Supreme Court's Decision in Rapanos v. United States & Carabell
v. United States (June 5, 2007).)
Then, in December 2008, the Agencies issued an updated
guidance memorandum on the terms and procedures to be used to
determine the extent of federal jurisdiction over waters,
building upon the previous guidance issued in June 2007. (See
Updated Joint Legal Memorandum, Clean Water Act Jurisdiction
Following the U.S. Supreme Court's Decision in Rapanos v.
United States & Carabell v. United States (Dec. 2, 2008).)
The December 2008 guidance provided that CWA jurisdiction
over navigable waters would be asserted if such waters meet
either the Scalia (``relatively permanent waters'') or Kennedy
(``significant nexus'') tests. According to the 2008 guidance,
individual permit applications must, on a case-by-case basis,
undergo a jurisdictional determination, based on either the
Scalia or Kennedy tests.
The 2003 and 2008 guidance remains in effect today.
The Agencies' proposed revised Clean Water Act guidance
In 2010, the Agencies drafted new joint guidance to
describe their latest views of federal regulatory jurisdiction
over U.S. waters under the CWA and to replace the Agencies'
2003 and 2008 guidance.
The proposed CWA jurisdiction guidance underwent several
months of interagency regulatory review before being released
in May 2011, when the Agencies published, in the Federal
Register, a joint notice announcing the availability of the
guidance. (76 Fed. Reg. 24,479 (May 2, 2011) (notice entitled
EPA and Army Corps of Engineers Guidance Regarding
Identification of Waters Protected by the Clean Water Act).)
The proposed guidance purported to describe how the
Agencies would identify waters subject to jurisdiction under
the CWA and implement the Supreme Court's decisions in SWANCC
and Rapanos concerning the extent of waters covered by the CWA.
The Agencies noted, among other things, in the proposed
guidance that ``the extent of waters over which the agencies
assert jurisdiction under the CWA will increase compared to the
extent of waters over which jurisdiction has been asserted
under existing guidance.'' (Proposed Guidance, at p.3.)
Members of Congress, stakeholders, and states submitted
comments to the Agencies, expressing, among other things,
concern that the proposed guidance amounts to being a de facto
rule because it effectively amends existing regulations that
were at issue in the Rapanos and SWANCC cases by describing new
conditions under which the Agencies may assert jurisdiction;
the Administrative Procedure Act (5 U.S.C. 500 et seq.)
mandates that, when the Agencies revise preexisting regulations
or make specific, binding regulatory pronouncements, those
pronouncements and rules must be promulgated pursuant to well-
established notice-and-comment rulemaking procedures. The
Agencies received comments outlining other issues, including
that the proposed guidance misconstrues the Supreme Court's
cases, is inconsistent with the Agencies' regulations, and
expands federal jurisdiction under the CWA.
In February 2012, the Agencies prepared and sent to the
Office of Information and Regulatory Affairs of the Office of
Management and Budget (OMB/OIRA) for interagency regulatory
review under Executive Order 12866 revised proposed CWA
jurisdiction guidance. (Guidance on Identifying Waters
Protected By the Clean Water Act (dated Feb. 17, 2012)
(referred to as ``Clean Water Protection Guidance,'' Regulatory
Identifier Number (RIN) 2040-ZA11, received Feb. 21, 2012).)
The revised guidance was largely unchanged from the proposed
version.
In September, 2013, the Corps and EPA announced their
withdrawal, from OMB/OIRA, of the proposed guidance before the
guidance was finalized. At the same time, the Agencies sent to
OMB/OIRA, for regulatory review, a draft rule entitled
Definition of `Waters of the United States' Under the Clean
Water Act (RIN: 2040-AF30). The draft rule purported to
``clarify'' which waterbodies are subject to federal
jurisdiction under the CWA.
The Agencies' proposed revised Clean Water Act jurisdiction rule
In April 2014, the Agencies published in the Federal
Register a proposed rule that would revise the regulatory
definition of the term ``waters of the United States'' under
the CWA. (See 79 Fed. Reg. 22188 (Apr. 21, 2014) (Definition of
`Waters of the United States' Under the Clean Water Act).) The
proposed rule purports to ``clarify'' which waterbodies are
subject to federal jurisdiction under the CWA. The rulemaking
notice provided a 91 day public comment period on the rule,
which the Agencies later extended an additional 91 days. (See
79 Fed. Reg. 35712 (June 24, 2014) (Definition of `Waters of
the United States' Under the Clean Water Act; Extension of
Comment Period).) The agencies later further extended the
public comment period on the rule to November 14, 2014. (See 79
Fed. Reg. 61590 (Oct. 14, 2014) (Extension of Comment Period
for the Definition of ``Waters of the United States'' Under the
Clean Water Act; Proposed Rule and Notice of Availability).)
The proposed rule would redefine the term ``waters of the
United States'' in the regulations for all CWA programs, and in
particular would cover sections 303 (water quality standards),
311 (oil and hazardous substances releases), 401 (state water
quality certifications), 402 (NPDES permitting and stormwater),
and 404 (wetlands permitting).
The proposed rule would redefine the term ``waters of the
United States'' as follows:
``Waters of the United States'' or ``waters of the U.S.'' means:
(a) For purposes of all sections of the Clean Water Act, 33
U.S.C. 1251 et seq. and its implementing regulations, subject
to the exclusions in paragraph (b) of this definition, the term
``waters of the United States'' means:
(1) All waters which are currently used, were used in
the past, or may be susceptible to use in interstate or
foreign commerce, including all waters which are
subject to the ebb and flow of the tide;
(2) All interstate waters, including interstate
wetlands;
(3) The territorial seas;
(4) All impoundments of waters identified in
paragraphs (a)(1) through (3) and (5) of this
definition;
(5) All tributaries of waters identified in
paragraphs (a)(1) through (4) of this definition;
(6) All waters, including wetlands, adjacent to a
water identified in paragraphs (a)(1) through (5) of
this definition; and
(7) On a case-specific basis, other waters, including
wetlands, provided that those waters alone, or in
combination with other similarly situated waters,
including wetlands, located in the same region, have a
significant nexus to a water identified in paragraphs
(a)(1) through (3) of this definition.
(b) The following are not ``waters of the United States''
notwithstanding whether they meet the terms of paragraphs
(a)(1) through (7) of this definition--
(1) Waste treatment systems, including treatment
ponds or lagoons, designed to meet the requirements of
the Clean Water Act. This exclusion applies only to
manmade bodies of water which neither were originally
created in waters of the United States (such as
disposal area in wetlands) nor resulted from the
impoundment of waters of the United States.
(2) Prior converted cropland. Notwithstanding the
determination of an area's status as prior converted
cropland by any other federal agency, for the purposes
of the Clean Water Act, the final authority regarding
Clean Water Act jurisdiction remains with EPA.
(3) Ditches that are excavated wholly in uplands,
drain only uplands, and have less than perennial flow.
(4) Ditches that do not contribute flow, either
directly or through another water, to a water
identified in paragraphs (a)(1) through (4) of this
definition.
(5) The following features:
(i) Artificially irrigated areas that would
revert to upland should application of
irrigation water to that area cease;
(ii) Artificial lakes or ponds created by
excavating and/or diking dry land and used
exclusively for such purposes as stock
watering, irrigation, settling basins, or rice
growing;
(iii) Artificial reflecting pools or swimming
pools created by excavating and/or diking dry
land;
(iv) Small ornamental waters created by
excavating and/or diking dry land for primarily
aesthetic reasons;
(v) Water-filled depressions created
incidental to construction activity;
(vi) Groundwater, including groundwater
drained through subsurface drainage systems;
and
(vii) Gullies and rills and non-wetland
swales.
The proposed rule also would provide new definitions of
certain terms used in the proposed rule, including
``adjacent,'' ``neighboring,'' ``riparian area,''
``floodplain,'' ``tributary,'' ``wetlands,'' and ``significant
nexus.''
Stakeholders have expressed both support of and concerns
with the proposed rule.
Those expressing support for the proposed rule have
suggested that this effort will provide greater clarity and
certainty in the confusing jurisdictional and regulatory
requirements following the Supreme Court decisions, as well as
provide a scientifically-based means for protecting headwater
and intermittent streams, while preserving existing regulatory
and statutory exemptions for certain activities.
Approximately seven states, seven counties and 21 cities,
along with major environmental groups, breweries, bed and
breakfasts, and some outdoor recreational groups, have
commented in support of the rule. They expressed support for
the proposed rulemaking, and commented that the proposed rule
provides much needed clarity and renewed protection over waters
where CWA jurisdiction has been called into question under both
the rulings of the Supreme Court and by the Agencies' 2003 and
2008 guidance documents. (See, e.g., Testimony of Lemuel M.
Srolovic, Bureau Chief, Environmental Protection Bureau, office
of New York State Attorney General Eric T. Schneiderman
(presented at the Joint Hearing of the House Committee on
Transportation and Infrastructure and the Senate Committee on
Environment and Public Works on ``Impacts of the Proposed
Waters of the United States Rule on State and Local
Governments'' (Feb. 4, 2015) (hereinafter, ``2015 CWA Joint
Hearing'') (noting that the proposed rule is ``grounded in
solid peer-reviewed science'' and ``advances the Clean Water
Act's protection of state waters downstream of other states by
securing a national federal `floor' for water pollution
control, thereby maintaining the consistency and effectiveness
of the downstream states' water pollution programs'');
Testimony of Commissioner Timothy Mauck, Board of
Commissioners, Clear Creek Colorado (presented at the 2015 CWA
Joint Hearing) (commenting that the proposed rule ``should help
provide more regulatory certainty and more timely review of
permit applications,'' noting that ``by clarifying and
simplifying the question of jurisdiction for [intermittent and
ephemeral] tributaries and adjacent wetlands, [permit]
applications should be able to more quickly get the substance
of their proposals reviewed without those lengthy delays
created by doing case-by-case jurisdictional analyses'').) Some
state and local officials (and EPA, itself) said that the
Agencies undertook an extensive public comment period,
including conducting over 400 public meetings throughout the
country. EPA also said that it created a special process for
engaging with state representatives, and established a local
government advisory committee workgroup to have local views on
the proposed rule.
Those expressing concerns with the proposed rule have
criticized the process by which the Agencies have moved forward
with the proposed rulemaking, as well as the substance of the
rule itself, including concerns over the lack of clarity and
the broadened scope of the rule.
Approximately 32 states, approximately 370 individual
counties and the National Association of Counties and the
National Association of County Engineers, and approximately 150
individual towns and the National League of Cities, the U.S.
Conference of Mayors, and the National Association of Towns and
Townships, along with the majority of the regulated
communities, including agriculture, business and industry,
energy, forestry, real estate, construction, transportation,
mining, manufacturing, and water districts and conservation
districts, have commented, expressing concerns with the rule.
The expressed process concerns include the sequence and
timing of the actions that the Agencies have taken to develop
the rule, which many believe undermine the credibility of the
rule and the process to develop it. Among other things,
stakeholders have expressed concern that, when the Agencies
decided to develop a rule, they simply proceeded ahead with a
rulemaking that is based on the earlier proposed guidance,
thereby codifying the guidance that raised so many concerns;
the process prejudges the science underlying the rule; and many
representatives of state and local governments and the
regulated community have expressed concern that the Agencies
have failed to consult with them in the development of the
rule, thereby threatening to undermine the federal-state
partnership and erode state authority under the CWA.
Some have called for the Agencies to step back, follow an
open, collaborative rulemaking process, and repropose a revised
rule that takes into consideration the advice and
recommendations of state and local governments and other
stakeholders. (See, e.g., Testimony of the Honorable Sallie
Clark, Commissioner, El Paso County, CO, on behalf of the
National Association of Counties (presented at the 2015 CWA
Joint Hearing); Testimony of Adam H. Putnam, Commissioner of
Agriculture, State of Florida, on behalf of the National
Association of State Departments of Agriculture (presented at
the 2015 CWA Joint Hearing); Testimony of E. Scott Pruitt
Attorney General of Oklahoma (presented at the 2015 CWA Joint
Hearing); Testimony of J.D. Strong, Executive Director of the
Oklahoma Water Resources Board, on behalf of the Oklahoma Water
Resources Board, Western Governors' Association, and the
Western States Water Council (presented at the House Committee
on Transportation and Infrastructure, Subcommittee on Water
Resources and Environment Hearing on ``Potential Impacts of
Proposed Changes to the Clean Water Act Jurisdiction Rule''
(June 11, 2014) (hereinafter, ``2014 CWA Hearing''); Testimony
of Warren ``Dusty'' Williams, General Manager/Chief Engineer,
Riverside County Flood Control & Water Conservation District,
on behalf of the National Association of Counties and the
National Association of Flood and Stormwater Management
Agencies (presented at the 2014 CWA Hearing); Testimony of Bob
Stallman, President, American Farm Bureau Federation (presented
at the 2014 CWA Hearing).)
Many of those expressing substantive concerns with the
proposed rule suggest the rule fails to provide reasonable
clarity, is inconsistent with Supreme Court precedent, and
could broaden the scope of CWA jurisdiction, thereby triggering
greater regulatory obligations under the CWA, including permit
obligations for discharges to waters that currently may not be
subject to the Act. Some note that the proposed rule leaves
many key concepts unclear, undefined, or subject to Agency
discretion, and suggest that the vague definitions and concepts
will not provide the intended regulatory certainty and will
instead result in litigation over their proper meaning. (See,
e.g., Testimony of the Honorable Sallie Clark, Commissioner, El
Paso County, CO, on behalf of the National Association of
Counties (presented at the 2015 CWA Joint Hearing); Testimony
of Adam H. Putnam, Commissioner of Agriculture, State of
Florida, on behalf of the National Association of State
Departments of Agriculture (presented at the 2015 CWA Joint
Hearing); Testimony of E. Scott Pruitt Attorney General of
Oklahoma (presented at the 2015 CWA Joint Hearing); Testimony
of J.D. Strong, Executive Director of the Oklahoma Water
Resources Board (presented at the 2014 CWA Hearing); Testimony
of Warren ``Dusty'' Williams, General Manager/Chief Engineer,
Riverside County Flood Control & Water Conservation District,
on behalf of the National Association of Counties and the
National Association of Flood and Stormwater Management
Agencies (presented at the 2014 CWA Hearing); Testimony of Bob
Stallman, President, American Farm Bureau Federation (presented
at the 2014 CWA Hearing); Testimony of Mark T. Pifher, Manager,
Southern Delivery System, Colorado Springs Utilities, on behalf
of the National Water Resources Association (presented at the
2014 CWA Hearing); Testimony of Kevin Kelly, Chairman of the
Board, National Association of Home Builders (presented at the
2014 CWA Hearing).)
Legislation to preserve existing rights and responsibilities with
respect to waters of the United States
On April 13, 2015, House Committee on Transportation and
Infrastructure Chairman Shuster, along with Water Resources and
Environment Subcommittee Chairman Gibbs and 25 other Members of
the House of Representatives, introduced H.R. 1732, the
``Regulatory Integrity Protection Act of 2015.'' The
legislation was introduced in response to the concerns that
many stakeholders and witnesses have expressed regarding the
process used to develop the proposed CWA jurisdiction rule.
The sponsors of H.R. 1732 introduced this legislation to
require the Agencies to withdraw the proposed rule, consult
with state and local officials, stakeholders, and other
interested parties on how to identify those waters covered
under, and those waters not covered under, the Federal Water
Pollution Control Act, and to develop a new proposed rule after
taking into consideration all of the comments received on the
original proposed rule and the advice and recommendations made
by the state and local officials, stakeholders, and other
interested parties that were consulted. Without this
legislation, Congress, the states, and other stakeholders will
not have any reasonable assurance that the Agencies will take
into consideration, in a meaningful way, the substantive and
process concerns expressed by stakeholders about the Agencies'
regulatory actions pertaining to redefining the scope of
jurisdiction under the CWA.
HEARINGS
On February 4, 2015, the House Committee on Transportation
and Infrastructure and the Senate Committee on Environment and
Public Works held a joint oversight hearing on the ``Impacts of
the Proposed Waters of the United States Rule on State and
Local Governments.'' The committees received testimony from the
Administrator of the EPA, the Assistant Secretary of the Army
for Civil Works, and representatives of state and local
governments on the joint EPA and Corps proposed rulemaking to
redefine the regulatory term ``waters of the United States''
under the CWA. A legislative hearing was not held on the bill.
In the 113th Congress, the Subcommittee on Water Resources
and Environment held a hearing to receive testimony from the
Deputy Administrator of the EPA, the Assistant Secretary of the
Army for Civil Works, and representatives of state and local
governments and private sector stakeholders on the joint EPA
and Corps proposed rulemaking to redefine the regulatory term
``waters of the United States'' under the CWA.
LEGISLATIVE HISTORY AND CONSIDERATION
On April 13, 2015, House Committee on Transportation and
Infrastructure Chairman Shuster introduced H.R. 1732, the
``Regulatory Integrity Protection Act of 2015.'' On April 15,
2015, the Committee on Transportation and Infrastructure met in
open session to consider H.R. 1732, and ordered the bill
reported favorably to the House by roll call vote with a quorum
present. The vote was 36 yeas to 22 nays.
Delegate Eleanor Holmes Norton offered an amendment in
Committee. The amendment would exempt the Agencies from the
requirements of the bill to protect the quality of surface
water that is available for public water supplies. The
amendment was defeated by roll call vote with a quorum present.
The vote was 23 yeas to 33 nays. Representative Huffman also
offered an amendment in Committee. The amendment would
recognize federal deference to state primacy in the development
of water law, the governance of water rights, and the
establishment of the legal system by which states mediate
disputes over water use. The amendment was adopted by voice
vote with a quorum present.
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 recorded 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. 1732, two roll call votes were taken.
The first roll call vote was taken on an amendment offered
in Committee by Delegate Eleanor Holmes Norton. The Committee
disposed of this amendment by roll call vote as follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The other roll call vote was taken on reporting the bill,
as amended, to the House with a favorable recommendation. The
bill, as amended, was reported to the House with a favorable
recommendation after a roll call vote which was disposed of as
follows:
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.
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. 1732 from the
Director of the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 27, 2015.
Hon. Bill Shuster,
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. 1732, the
Regulatory Integrity Protection Act of 2015.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
Keith Hall,
Director.
Enclosure.
H.R. 1732--Regulatory Integrity Protection Act of 2015
H.R. 1732 would require the Environmental Protection Agency
(EPA) and the U.S. Army Corps of Engineers (Corps) to withdraw
the proposed rule published in the Federal Register on April
21, 2014, that defines the scope of waters protected by the
Clean Water Act (CWA). Under the CWA, EPA and the Corps, along
with the states, serve as co-regulators of activities affecting
the nation's waters.
CBO estimates that implementing H.R. 1732 would cost $5
million over the 2016-2020 period, subject to the availability
of appropriations. The legislation would affect direct spending
because it would reduce fees collected by the Corps for issuing
permits under the CWA. However, CBO estimates that the change
in those fees would be negligible. Because the legislation
would affect direct spending, pay-as-you-go procedures apply.
Enacting H.R. 1732 would not affect revenues.
The bill would require EPA and the Corps to develop a new
proposed rule, taking into account public comments submitted
for the April 21, 2014, proposed rule as well as the regulatory
analysis for that proposed rule and a related EPA report issued
in January 2015. This legislation also would direct EPA and the
Corps to consult with state and local officials, stakeholders,
and other interested parties to seek consensus on which waters
and wetlands are covered by the CWA. Finally, H.R. 1732 would
require EPA and the Corps to prepare a report for the Congress
that responds to public comments filed on the April 2014
proposed rule and associated documents and that describes how
the new proposed rule addresses such comments. The report also
would have to explain how the new proposed rule addresses the
advice and recommendations obtained from other parties, and it
would have to include a comprehensive regulatory and economic
analysis of the new proposed rule.
Under H.R. 1732, CBO expects that funds that would have
been used to develop and implement the current proposed rule
and to draft guidance would be used to develop an alternative
regulatory proposal. Based on EPA's prior experience in
developing new regulations, CBO estimates that it would cost an
additional $5 million over the 2016-2020 period to address the
roughly 1 million comments EPA and the Corps have received
concerning the April 2014 proposed rule, conduct extensive
outreach efforts to interested parties, and help prepare a
comprehensive regulatory and economic analysis.
The regulatory changes proposed under current law would
expand the area covered by federal regulations and increase the
number of permits issued by the Corps under the CWA to dispose
of dredged or fill material from development projects near
regulated waters. CBO expects that the legislation would
probably reduce or delay that expansion leading to a reduction
in the number of permits issued. Because the amount charged for
those permits is nominal, CBO estimates enacting H.R. 1732
would have an insignificant effect on offsetting receipts over
the 2016-2025 period.
H.R. 1732 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act; any
costs incurred by state, local, or tribal governments would
result from participation in a voluntary federal program.
The CBO staff contact for this estimate is Susanne S.
Mehlman. This estimate was approved by Theresa Gullo, 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
withdraw a proposed rule the Agencies have developed regarding
the scope of federal jurisdiction under the CWA, consult with
state and local officials, stakeholders, and other interested
parties on how to identify those waters covered under, and
those waters not covered under, the CWA, and to develop a new
proposed rule after taking into consideration all of the
comments received on the original proposed rule and the advice
and recommendations made by the state and local officials,
stakeholders, and other interested parties that were consulted.
ADVISORY OF EARMARKS
In compliance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 1732 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.
DUPLICATION OF FEDERAL PROGRAMS
Pursuant to section 3(g) of H. Res. 5, 114th Cong. (2015),
the Committee finds that no provision of H.R. 1732, as
reported, establishes or reauthorizes a program of the federal
government known to be duplicative of another federal program,
a program that was included in any report from the Government
Accountability Office to Congress pursuant to section 21 of
Public Law 111-139, or a program related to a program
identified in the most recent Catalog of Federal Domestic
Assistance.
DISCLOSURE OF DIRECTED RULEMAKINGS
Pursuant to section 3(i) of H. Res. 5, 114th Cong. (2015),
the Committee estimates that enacting H.R. 1732, as reported,
specifically directs the withdrawal of a proposed rulemaking
and directs the Agencies to develop a new proposed rule taking
into consideration all of the comments received on the proposed
rule, within the meaning of section 551 of title 5, United
States Code, to replace the withdrawn rulemaking.
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. 1732 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 H.R. 1732 states that this Act may be cited as
the ``Regulatory Integrity Protection Act of 2015.''
Section 2. Withdrawal of existing proposed rule
Section 2 of H.R. 1732 requires the Secretary of the Army
(``Secretary'') and the Administrator of the Environmental
Protection Agency (``Administrator'') to withdraw the proposed
rule described in the notice of proposed rule published in the
Federal Register entitled ``Definition of `Waters of the United
States' Under the Clean Water Act'' (79 Fed. Reg. 22188 (April
21, 2014)) and any final rule based on such proposed rule
(including RIN 2040-AF30). The Secretary and the Administrator
are to withdraw the proposed rule not later than 30 days after
the date of enactment of this Act.
Section 3. Development of new proposed rule
Subsection (a): In general
Subsection (a) requires the Secretary and the Administrator
to develop a new proposed rule to define the term ``waters of
the United States'' as used in the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.).
Subsection (b): Development of new proposed rule
Subsection (b) lays out the process the Secretary and the
Administrator must go through to develop the new proposed rule.
Paragraph (1) of subsection (b) requires that, in
developing the new proposed rule, the Secretary and the
Administrator must take into consideration the public comments
received on (A) the proposed rule referred to in Section 2; (B)
the accompanying economic analysis of the proposed rule
entitled ``Economic Analysis of Proposed Revised Definition of
Waters of the United States'' (dated March 2014); and (C) the
report entitled ``Connectivity of Streams & Wetlands to
Downstream Waters: A Review & Synthesis of Scientific
Evidence'' (EPA/600/R-14/475F; dated January 2015).
Paragraph (1) of subsection (b) is intended to ensure that
the public input that the Secretary and the Administrator have
received from the current proposed rulemaking (referred to in
Section 2 of the bill) is utilized in the development of the
new proposed rule under Section 3 of the bill. The Secretary
and the Administrator received extensive substantive, unique
comments on their proposed rule, the accompanying economic
analysis, and the scientific review document that the Secretary
and the Administrator have said they based the proposed rule
on. The Secretary and the Administrator must take into
consideration the substantive, unique public comments and
insights gained from these public comment processes when
developing the new proposed rule.
Paragraph (2) of subsection (b) requires the Secretary and
the Administrator to jointly consult with and solicit advice
and recommendations from representative state and local
officials, stakeholders, and other interested parties on how to
define the term ``waters of the United States'' as used in the
Federal Water Pollution Control Act. The requirements for
consulting and seeking such advice and recommendations include
those described in subsection (c) ``Federalism Consultation
Requirements'' and subsection (d) ``Stakeholder Consultation
Requirements.'' These requirements aim to ensure transparency
and openness in the consultation processes established by this
bill, and participation by state and local officials,
stakeholders, and other interested parties representing a broad
cross-section of regional, economic, policy, geographic, and
other perspectives around the nation. The Secretary and the
Administrator must aim to include as many state and local
officials, stakeholders and other interested parties as have a
desire to participate, and must not restrict parties
representing particular perspectives.
Paragraph (3) of subsection (b) requires the Secretary and
the Administrator to prepare a new regulatory proposal that
will, consistent with applicable rulings of the United States
Supreme Court, specifically identify those waters covered
under, and those waters not covered under, the Federal Water
Pollution Control Act. In preparing the new proposed rule, the
Secretary and the Administrator must take into consideration
the public comments referred to in paragraph (1), and the
advice and recommendations made by the state and local
officials, stakeholders, and other interested parties consulted
under this section. The Secretary and the Administrator also
must incorporate, into the new proposed rule, the areas and
issues where consensus was reached with the parties.
Part of the Secretary's and Administrator's responsibility
in developing the new regulatory proposal is to provide clarity
regarding waters covered, and not covered, under the CWA. In
providing such clarity, the Secretary and the Administrator
must specifically identify in the proposed rule what particular
waters are covered and what are not covered. General
categorizations of waters are not sufficient. Those waters not
covered under the CWA are reserved to the states to determine
whether and how to regulate.
The new proposed rule will need to be consistent with
applicable rulings of the United States Supreme Court. This
would include the Supreme Court's rulings in the Riverside
Bayview, SWANCC, and Rapanos cases. Additionally, the advice
and recommendations that come out of the Federalism
Consultation (subsection (c)) and the Stakeholder Consultation
(subsection (d)) must be taken into account when developing the
new rule. Areas of consensus reached with the parties to the
consultations regarding which waters are covered and which are
not covered must be incorporated into the new proposed rule.
Subsection (c): Federalism consultation
Subsection (c) lays out the requirements the Secretary and
the Administrator must follow as they undertake the Federalism
Consultation with state and local officials required under
subsection (b). The term ``State and local officials'' (defined
in subsection (i)) means elected or professional state and
local government officials or their representative regional or
national organizations. When consulting with and soliciting
advice and recommendations from state and local officials, the
Secretary and the Administrator shall comply with the
requirements in paragraphs (1) through (9) of subsection (c):
(1) Paragraph (1) requires the Secretary and the
Administrator to seek to reach consensus with the state and
local officials on how to define the term ``waters of the
United States'' as used in the Federal Water Pollution Control
Act.
(2) Paragraph (2) requires the Secretary and the
Administrator to provide the state and local officials with
notice and an opportunity to participate in the consultation
process under subsection (b).
(3) Paragraph (3) requires the Secretary and the
Administrator to consult with state and local officials that
represent a broad cross-section of regional, economic, policy,
and geographic perspectives in the United States.
(4) Paragraph (4) requires the Secretary and the
Administrator to emphasize the importance of collaboration with
and among the state and local officials.
(5) Paragraph (5) requires the Secretary and the
Administrator to allow for meaningful and timely input by the
state and local officials.
(6) Paragraph (6) requires the Secretary and the
Administrator to recognize, preserve, and protect the primary
rights and responsibilities of the states to protect water
quality under the CWA, and to plan and control the development
and use of land and water resources in the states.
(7) Paragraph (7) requires the Secretary and the
Administrator to protect the authorities of state and local
governments and rights of private property owners over natural
and manmade water features, including the continued recognition
of federal deference to state primacy in the development of
water law, the governance of water rights, and the
establishment of the legal system by which states mediate
disputes over water use.
(8) Paragraph (8) requires the Secretary and the
Administrator to incorporate the advice and recommendations of
the state and local officials regarding matters involving
differences in state and local geography, hydrology, climate,
legal frameworks, economies, priorities, and needs.
(9) Paragraph (9) requires the Secretary and the
Administrator to ensure transparency in the consultation
process, including promptly making accessible to the public all
communications, records, and other documents of all meetings
that are part of the consultation process.
Paragraph (9) of subsection (c) is included in order to
make the consultation process transparent to state and local
officials and Congress, as well as to other stakeholders and
other interested parties.
Transparency in the Federalism Consultation process is
essential to ensure that the Secretary and the Administrator
comply with both the requirements and the spirit of this
legislation. During the consultation process, the Secretary and
the Administrator must make promptly available to the public
all of the information received or disseminated as part of the
consultation process, including any and all documents prepared
by the Secretary or the Administrator and distributed at
meetings or other events, documents received by the Secretary
or the Administrator, lists of invited attendees and of those
who attend or participate, and any other data, handouts,
communications, records, information, or documents that are
part of the consultation process. The Secretary and the
Administrator shall promptly make all such information
available to the public, in a centralized and easy to access
venue (such as a dedicated, publicly accessible Website on the
Internet).
Subsection (d): Stakeholder consultation requirements
Subsection (d) lays out the requirements the Secretary and
the Administrator must follow as they undertake the Stakeholder
Consultation with stakeholders and other interested parties
required under subsection (b).
Paragraph (1) of subsection (d) requires the Secretary and
the Administrator to identify representatives of public and
private stakeholders and other interested parties, including
small entities (as defined in section 601 of title 5, United
States Code), representing a broad cross-section of regional,
economic, and geographic perspectives in the United States, who
could potentially be affected, directly or indirectly, by the
new proposed rule under subsection (a), for the purpose of
obtaining advice and recommendations from those representatives
about the potential adverse impacts of the new proposed rule
and means for reducing such impacts in the new proposed rule.
Paragraph (2) of subsection (d) requires the Secretary and
the Administrator to ensure transparency in the consultation
process, including promptly making accessible to the public all
communications, records, and other documents of all meetings
that are part of the consultation process.
Paragraph (2) of subsection (d) is included in order to
make the consultation process transparent to stakeholders and
other interested parties, Congress, as well as to state and
local officials.
Transparency in the Stakeholder Consultation process is
essential to ensure that the Secretary and the Administrator
comply with both the requirements and the spirit of this
legislation. During the consultation process, the Secretary and
the Administrator must make promptly available to the public
all of the information received or disseminated as part of the
consultation process, including any and all documents prepared
by the Secretary or the Administrator and distributed at
meetings or other events, documents received by the Secretary
or the Administrator, lists of invited attendees and of those
who attend or participate, and any other data, handouts,
communications, records, information, or documents that are
part of the consultation process. The Secretary and the
Administrator shall promptly make all such information
available to the public, in a centralized and easy to access
venue (such as a dedicated, publicly accessible Website on the
Internet).
Subsection (e): Timing of federalism and stakeholder
consultation
Subsection (e) requires the Secretary and the Administrator
to initiate consultations with state and local officials,
stakeholders, and other interested parties under subsection (b)
not later than 3 months after the date of enactment of this
Act.
Subsection (f): Report
Subsection (f) requires the Secretary and the Administrator
to prepare a report, along with the new proposed rule.
Subsection (f) details the report's contents and requirements.
Paragraph (1) of subsection (f) requires the Secretary and
the Administrator to both identify and respond to each of the
public comments filed on the proposed rule referred to in
section 2; the accompanying economic analysis of the proposed
rule entitled ``Economic Analysis of Proposed Revised
Definition of Waters of the United States'' (dated March 2014);
and the report entitled ``Connectivity of Streams & Wetlands to
Downstream Waters: A Review & Synthesis of Scientific
Evidence'' (EPA/600/R-14/475F; dated January 2015). The purpose
of this portion of the report includes ensuring that the public
is aware of and has access to all of the public comments filed
on the proposed rule under section 2, economic analysis, and
report; and ensuring that the Secretary and the Administrator
review, evaluate, and respond to each of the public comments
that were filed, including each of the issues discussed in each
public comment that was filed.
Paragraph (2) of subsection (f) requires the Secretary and
the Administrator to provide a detailed explanation of how the
new proposed rule under subsection (a) addresses the public
comments referred to in paragraph (1).
Paragraph (3) of subsection (f) requires the Secretary and
the Administrator to describe in detail the advice and
recommendations obtained from the state and local officials
consulted under this section; the areas and issues where
consensus was reached with the state and local officials
consulted under this section; the areas and issues of
continuing disagreement that resulted in the failure to reach
consensus; and the reasons for the continuing disagreements.
Paragraph (4) of subsection (f) requires the Secretary and
the Administrator to provide a detailed explanation of how the
new proposed rule addresses the advice and recommendations
provided by the state and local officials consulted under this
section, including the areas and issues where consensus was
reached with the state and local officials.
Paragraph (5) of subsection (f) requires the Secretary and
the Administrator to describe in detail the advice and
recommendations obtained from the stakeholders and other
interested parties, including small entities, consulted under
this section about the potential adverse impacts of the new
proposed rule and means for reducing such impacts in the new
proposed rule. Paragraph (5) also requires the Secretary and
the Administrator to describe in detail how the new proposed
rule addresses such advice and recommendations.
Paragraph (6) of subsection (f) requires the Secretary and
the Administrator to provide a detailed explanation of how the
new proposed rule recognizes, preserves, and protects the
primary rights and responsibilities of the states to protect
water quality and to plan and control the development and use
of land and water resources in the states; and how the new
proposed rule is consistent with the applicable rulings of the
United States Supreme Court regarding the scope of waters to be
covered under the CWA. The applicable Supreme Court rulings
would include the rulings in the Riverside Bayview, SWANCC, and
Rapanos cases.
Paragraph (7) of subsection (f) requires the Secretary and
the Administrator to provide comprehensive regulatory and
economic impact analyses, utilizing the latest data and other
information, on how definitional changes in the new proposed
rule will impact, directly or indirectly, each program under
the CWA for federal, state, and local government agencies; and
impact, directly or indirectly, public and private stakeholders
and other interested parties, including small entities,
regulated under each such program.
Paragraph (7) of subsection (f) is intended to ensure that
the Secretary and the Administrator conduct rigorous regulatory
and economic impact analyses of the new proposed rule that use
the latest economic data and other information on how the
proposed rule will impact all of the programs under the CWA.
This requirement includes impacts on any decision regarding
whether any permitting, enforcement, or other regulatory
requirement under any section of the CWA (including sections
404, 402, 401, 311, 303, and 301) applies to a given
circumstance. This also includes analyzing impacts on the
federal government, states, local government agencies, public
and private stakeholders, and small entities that might be
impacted by the new proposed rule under these CWA programs.
Subsection (g): Publication
Subsection (g) outlines the requirements to the Secretary
and the Administrator for publication of the new proposed rule
and the report under subsection (f).
Paragraph (1) of subsection (g) requires the Secretary and
the Administrator to publish for comment, in the Federal
Register, the new proposed rule under subsection (a); a
description of the areas and issues where consensus was reached
with the state and local officials consulted under this
section; and the report described in subsection (f). The
description of the areas and issues where consensus was reached
with the state and local officials consulted, listed in
subparagraph (1)(B), refers to such description to be included
in the report described in Subsection (f). The Secretary and
the Administrator are to publish the aforementioned items not
later than 3 months after the completion of consultations with
and solicitation of recommendations from state and local
officials, stakeholders, and other interested parties under
subsection (b).
Paragraph (2) of subsection (g) requires the Secretary and
the Administrator to provide not fewer than 180 days for the
public to review and comment on the new proposed rule under
subsection (a); the accompanying economic analysis for the new
proposed rule; and the report described in subsection (f). The
description of the accompanying economic analysis for the new
proposed rule, listed in subparagraph (2)(B), refers to the
regulatory and economic impact analyses to be included in the
report described in Subsection (f).
Subsection (h): Procedural requirements
Subsection (h) clarifies that subchapter II of chapter 5,
and chapter 7, of title 5, United States Code, commonly known
as the ``Administrative Procedure Act,'' shall apply to the
development and review of the new proposed rule under
subsection (a).
Subsection (i): State and local officials defined
Subsection (i) defines ``State and local officials'' to
mean elected or professional state and local government
officials or their representative regional or national
organizations.
CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED
H.R. 1732 would not make any changes to existing law.
DISSENTING VIEWS
We recognize that the reach and application of Clean Water
Act protections have long been subject to rigorous debate.
Since enactment of the Act over the veto of President Nixon in
1972, the three branches of the Federal government have
wrestled with how and where to apply the general premise of the
Act--to prohibit the discharge of pollutants into the ``waters
of the United States'' unless such discharges are covered by a
Clean Water Act permit.
Yet, we also recognize that a clear understanding of the
Act's reach and application is essential both to the regulated
community and the American public. Clarity is essential to the
regulated community so they can understand and meet their legal
obligations under the Clean Water Act. Likewise, clarity is
critical to businesses and the general public so they can be
assured that water quality will be uniformly protected,
regardless of what state or region of the country the water may
be located. The American people have a right to expect that
wherever they travel in this county, the waters where they
fish, swim, drink, hunt, recreate or otherwise enjoy are clean
and safe, and that wherever they live, their property is
reasonably protected from the risk of flooding.
Unfortunately, that clarity is simply not available today.
Confusion and uncertainty on the reach and application of Clean
Water Act protections abound--resulting both from recent
Supreme Court decisions, as well as guidance documents adopted
by the Bush administration that have been uniformly criticized
as ``arbitrary'', ``confusing'', and ``frustrating''.
In response to universal calls for greater certainty,\1\
April 21, 2014, the Obama administration proposed a new Clean
Water rulemaking to replace the existing guidance, and to
address the uncertainty and bureaucratic process related to
whether a waterbody (or wetland) is covered by the Act. The
agencies twice extended the public comment period for the
proposed rule, which ultimately concluded on November 14, 2014
(for a total public comment period of 208 days). During that
period, EPA testified that they held over 400 public meetings,
and received a significant amount of public comment and input
on the proposed rule.
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\1\For over a decade, members of Congress, state and local
officials, industry, agriculture, and environmental organizations, and
the general public have asked for a rulemaking to provide additional
regulatory clarity on the scope of Clean Water Act protections. See
http://www2.epa.gov/cleanwaterrule/persons-and-organizations-
requesting-clarification-waters-united-states-rulemaking.
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In addition, EPA's Office of Research and Development (ORD)
undertook an independent evaluation of more than 1,200 peer-
reviewed scientific publications to summarize the current
scientific understanding about the connectivity of streams and
wetlands to downstream waters. This ``connectivity report''
concluded that the science supports a strong connection between
upstream waters (and wetlands), including ephemeral (rain-
dependent) and intermittent (seasonal) streams, and downstream
waters--a conclusion that was supported by a subsequent review
of EPA's Science Advisory Board (SAB).
Now, after over a year of public outreach--on a scale
``unprecedented'' in the history of the Clean Water Act--as
well as countless Congressional hearings, the agencies have
submitted a revised Clean Water Protection rule to the Office
of Management and Budget for final interagency review--the last
step before the revised final rule would be released to the
general public later this spring. In testimony to our
Committee, the heads of both the Corps and EPA have identified
several specific areas where the proposed rulemaking may have
lacked specificity and where the agencies have committed to
clarifying changes in the final rule to address these areas.
But, rather than wait to review the merits of the final
proposal, the Committee on Transportation and Infrastructure
now reports a bill that would ensure that the agencies' efforts
to date never see the light of day and that they be required to
perform the equivalent of a bureaucratic ``do-loop.''
We have to ask why? Such an approach would perpetuate the
regulatory confusion that exists today, adding additional costs
and delay to the construction of vital projects across the
nation. It would leave countless acres of wetlands and miles of
streams--many of which serve as the primary source of drinking
water for 117 million Americans--at risk. And, it would force
the agencies to conduct what appears to be the fifth and sixth
public comment period on interpreting the scope of the Clean
Water Act in the last decade. In short, as the EPA Deputy
Administrator recently testified, ``I do not know what value
would be added [for delaying implementation of the Clean Water
rule] other than the addition of time.''
Blocking the agencies from releasing their final product
simply makes no sense. It provides no certainty or
predictability to the regulated community on where the rules
apply. It requires the agencies to, again, meet with the same
groups of stakeholders to talk about the same issues they have
talked about for decades. And, it leaves many of our nation's
waters unprotected.
Our waters are too precious to our health, to our
economies, and to our cherished way of life to treat in this
way. Let the agencies finish their work, and if Congress wants
to revisit this issue afterward, it has ample authority to do
so.
For these reasons, we oppose H.R. 1732.
Background
The Clean Water Act (CWA) was enacted with a goal to
``restore and maintain the chemical, physical, and biological
integrity of the Nation's waters.'' The Act prohibits the
addition of any pollutants into ``navigable waters'' unless
covered by a point source permit (under section 402 of the Act)
or a dredge and fill permit (under section 404). The term
``navigable waters'' is statutorily defined as meaning the
``waters of the United States, including the territorial
seas.''
The statutory language of the CWA does not definitively
describe the outer reaches of protection, but uses broad terms,
such as ``waters of the United States,'' and allows the Corps
and EPA to further define these terms through rulemaking and
other administrative means. Congress' decision to utilize
broadly-defined terms was a conscious one, allowing the
establishment of a comprehensive ``Federal floor'' of
protection that interested States could expand upon, without
having to develop a specific definitional test that could have
been inconsistent with the regional variability of waters
throughout the nation. This scope of protection was also a
direct response to the failed, state-by-state approach that
existed prior to the CWA.
From the 1970s through 2001, the prevailing legal theory
was that the CWA, like many other Federal environmental
statutes, was to be applied broadly--arguably to the limits of
the Commerce Clause of the U.S. Constitution. However, in 2001
(with the SWANCC decision\2\) and again in 2006 (with the
Rapanos decisions\3\), the Supreme Court for the first time
suggested some limit to the scope of the CWA; yet, the Court
did not clearly define what that limit might be.
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\2\Solid Waste Agency of Northern Cook County v. U.S. Army Corps of
Engineers (SWANCC), 531 U.S. 159 (2001).
\3\Rapanos v. United States (consolidated with Carabell v. United
States Army Corps of Engineers) 547 U.S. 715 (2006).
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In SWANCC, the Court concluded only that the Corps could
not use the presence of migratory birds as the sole reason for
asserting jurisdiction over so-called isolated, intrastate
waters. In Rapanos, the Court issued a 4-1-4 decision that,
again, did not articulate a clear limit to the scope of the
Act. Instead, the Court produced three distinct opinions that
outlined three separate analyses for determining the Act's
scope. Yet, because a majority of the justices did not agree on
any single test, the Federal agencies (and the courts) have no
majority opinion to guide them in determining what waters are
covered (and what waters may not be covered) by the Act. As a
result, two Federal judicial circuits currently use one test
for determining CWA jurisdiction (the Kennedy significant nexus
test), three circuits use both the Kennedy and the Scalia
(relatively permanent waters) tests, and the remaining circuits
have not concluded which test to use.
Since the SWANCC and Rapanos decisions, EPA and the Corps
have issued several guidance documents to interpret how the
agencies will implement these decisions. These interpretations
have varied depending on the Presidential administration in
office when they were drafted.
While the Clinton administration initially sought to
preserve broad CWA protection\4\, the Bush administration
reversed and issued guidance that narrowed the reach of CWA
protections\5\, however, in doing so, the Bush administration
also imposed a water-by-water ``jurisdictional determination''
test that required the Corps (and EPA) to demonstrate a
physical connection between each and every permit application
to some downstream ``traditionally navigable water''. This new,
and extremely fact-intensive, requirement dramatically slowed
the process (and increased the cost and uncertainty) of
determining whether a waterbody (or wetland) was even covered
by the CWA--a process that must be completed before the merits
of the actual permit application, itself, can be evaluated and
issued.
---------------------------------------------------------------------------
\4\See EPA and Corps Memorandum, entitled ``Supreme Court Ruling
Concerning CWA Jurisdiction over Isolated Waters,'' dated January 19,
2001, located at http:// www.spn.usace.army.mil/regulatory/misc/
swancc.pdf.
\5\See Advance Notice of Proposed Rulemaking on the Clean Water Act
Regulatory Definition of ``Waters of the United States'', Joint
Memorandum, 68 Fed. Reg. 1991, 1995 (January 15, 2003); EPA and Army
Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction
after Rapanos, 72 Fed. Reg. 31824 (June 8, 2007); and Clean Water Act
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v.
United States & Carabell v. United States, located at http://
water.epa.gov.lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA
Jurisdiction_Following_Rapanos120208.pdf.
---------------------------------------------------------------------------
As a result, the regulated community, conservation and
environmental organizations, and several States have commented
that the current process, as outlined by the 2003 and 2008
guidance documents, remains confusing, inconsistent, and
costly, and provides little environmental benefit.
For example, the following are public comments from both
the regulated community and conservation organizations
expressing concern about the current Bush-era guidance, which
would be replaced by the proposed Clean Water Protection rule:
``With no clear regulatory definitions to guide
their determinations, what has emerged is a hodgepodge of ad
hoc and inconsistent jurisdictional theories.''\6\
---------------------------------------------------------------------------
\6\Comments of the American Farm Bureau Federation, the National
Association of Realtors, and the Foundation for Environmental and
Economic Progress, et al., submitted April 16, 2003.
---------------------------------------------------------------------------
``The [2007 Bush administration] Guidance is
causing confusion and added delays in an already burdened and
strained permit decision-making process, which ultimately will
result (and is resulting) increased delays and costs to the
public at large.''\7\
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\7\Comments of the American Farm Bureau Federation, the National
Association of Homebuilders, et. al., submitted January 22, 2008.
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``The 2003 SWANCC Guidance and the 2008 Rapanos
guidance have placed millions of wetland acres and tens of
thousands of stream miles at risk of pollution and destruction.
Given the interrelationship between waters, the existing
Guidance has put all of the Nation's waters at risk by
retreating from the comprehensive protection needed to achieve
the Act's goals.''\8\
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\8\Comments of the National Wildlife Federation, the Izaak Walton
League of America, Theodore Roosevelt Conservation Partnership, Trout
Unlimited, and The Wildlife Society, submitted July 31, 2011.
---------------------------------------------------------------------------
``[Clean Water Act] processes and administration
under the interim guidance released immediately subsequent to
the SWANCC and Rapanos cases, and under the 2003 and 2008
guidance, seem to have been universally frustrating. Permit
applicants, farmers, conservationists, landowners, communities,
state and local agencies and other affected entities have all
long expressed a strong desire for greater certainty and
clearer processes since SWANCC. . .''\9\
---------------------------------------------------------------------------
\9\Comments of Ducks Unlimited, submitted July 20, 2011.
---------------------------------------------------------------------------
``Until a comprehensive set of rules regarding
which water bodies the Agencies will regulate as waters of the
United States is promulgated, the public and Agency field staff
will be beleaguered by partial answers, confusing standards,
and ad hoc, overbroad, and arbitrary decisions pertaining to
the scope of federal [Clean Water Act] jurisdiction.''\10\
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\10\Comments of the Waters Advocacy Coalition, submitted July 29,
2011.
---------------------------------------------------------------------------
``The members of [the Waters Advocacy Coalition]
hold the commonsense view that an effective [Clean Water Act]
enforcement program is essential to protecting our nation's
jurisdictional waters. A touchstone of an effective enforcement
program is clarity in the law and implementing regulations.
Currently, regulations and guidance are ambiguous, leading to
uncertainty in what the law requires, which makes it difficult
for the public and the Government. For these reasons, WAC,
consistent with the opinions expressed by several Justices in
the Rapanos decision, has urged the U.S. Army Corps of
Engineers (``Corps'') to conduct a clarifying rulemaking.''\11\
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\11\Letter from the Waters Advocacy Coalition to EPA Administrator
Stephen Johnson, dated August 6, 2008.
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According to the Corps, as a result of the current
regulatory uncertainty, over 66 percent of permit applicants
voluntarily concede CWA jurisdiction rather than maneuver
through the formal process outlined by the 2003 and 2008
guidance documents.
In response to these calls for greater regulatory
certainty, on April 21, 2014, the Obama administration proposed
a new Clean Water rulemaking to replace the existing guidance,
and to address the uncertainty and bureaucratic process related
to whether a waterbody (or wetland) is covered by the Act.
Recent statements from the Administration on greater clarification in
the Final Rule
As is common with any rulemaking, the agencies received
both praise for and concern about the impacts of April 2014
Clean Water rulemaking. In testimony to our Committee, the
federal agencies identified several specific areas where the
proposed rulemaking may lack specificity and have committed to
make changes to these areas before the rule is finalized later
this spring.
For example, the American Farm Bureau Federation expressed
concern about the distinction between ``ephemeral'' (rain-
dependent) streams, which are currently subject to the Clean
Water Act, and ``erosional features'' which are not. Recently,
EPA testified that the agencies expect the final rule to
clarify the distinction between ephemeral streams and erosional
features to ensure that the final rule did not, inadvertently,
bring erosional features under the scope of the Act.
Similarly, the Farm Bureau expressed concern that the
proposed Clean Water Protection rule would subject all
activities, even land use activities, within a ``floodplain''
to the Clean Water Act permitting requirements. While EPA
clarified that, unless an activity involved the discharge of a
pollutant or the placement of dredge or fill material into a
``navigable water,'' the Clean Water Act simply does not apply,
it also recognized the inexact nature of the term
``floodplain'' in the proposed rule. EPA testified that it
expected the final rule to provide more clarity and certainty
on this issue.
Numerous groups, including the National Association of
Counties, have expressed concern about the impact of the
proposed rule on ``ditches''. In response, the agencies
testified that the proposed rule not only codified the current
exemption for ditches, but also ``expanded the definition of
ditches that would be exempt under the Clean Water rule to make
it clearer, [including] ditches that basically drain dry land
along public lands and highways.'' Further, the agencies
committed to provide greater certainty, in the final rule, on
what ditches are and are not protected by the Act.
Other groups questioned whether the proposed Clean Water
rule would capture municipal separate sanitary stormwater sewer
systems (MS4s) or water reuse or recycling projects. The EPA
administrator testified that ``EPA has not intended to capture
features . . . that have already been captured in . . . MS4
permits, [and it] is our intent to continue to encourage and
respect those decisions and to encourage water reuse and
recycling, which very much is consistent with the Clean Water
Act and our overall intent.'' Further, the administrator
testified that EPA would make very clear that these exclusions
are articulated in the final rule ``so that people will see in
writing what they have been asking us about.''
Western water supply agencies have also received
clarification from EPA that the rulemaking will not add
jurisdictional scope to water supply canals, water transfers,
or groundwater projects, which are important tools used in the
West to address historic drought conditions. EPA testified that
``the proposed rule would not expand jurisdiction over water
delivery systems [, such as canals used for irrigation,
industrial, and residential water deliveries]. If such features
are not covered now under the tests established by the Supreme
Court, they would not become jurisdictional under the proposed
rule.'' The EPA also stated that ``the proposed rule would not
alter the status quo regarding water transfers''. EPA has also
testified, numerous times, on the jurisdictional status of
groundwater by stating, ``We explicitly make sure to mention
that groundwater is not included.''
Finally, several groups, such as the National Association
of Home Builders, voiced concern over the proposed rule's
retaining of the regulatory term ``other waters''. In many
ways, the jurisdictional status of these waters, which can
include ``isolated waters''. (e.g., prairie potholes),
highlights the current legal confusion caused by split Supreme
Court decisions. Existing regulations cover a broad category of
``other waters'' which, today, remain legally subject to the
Act based on ``interstate or foreign commerce'' connections.
The proposed rule attempted to narrow jurisdiction over these
waters to only those where the agencies can demonstrate a
significant connection (nexus) between the water and some other
jurisdictional water. Yet, even this narrower scope remains
very case-specific, and does not provide the predictability
sought in this rulemaking. In response, the agencies are
exploring a more ``transparent system for people . . . to
understand what constitutes a significant nexus to comply with
the instructions that the Supreme Court gave us.''
As noted above, the agencies have testified that, in many
ways, the final Clean Water Protection rulemaking will result
in a clearer, more precise, and more predictable process for
determining the scope of Clean Water Act protections than
exists today. This increased clarity and predictability will
benefit individuals and businesses alike, will ensure continued
protection of our water-related environment, and will sustain
our precious way of life.
However, if H.R. 1732 were to be enacted, we are assured
that the confused and arbitrary process in place today will
remain far into the future.
Myths vs. facts on the Clean Water Protection rulemaking
Unfortunately, over the past decade, much of the debate on
the reach and application of the Clean Water Act has been
driven more by the rhetoric than the reality. Nowhere has this
been more evident than with respect to the 2014 rulemaking
effort.
Regrettably, over the past year, opponents of the ongoing
rulemaking have made several outlandish claims about the intent
and the potential scope of this rulemaking effort. These claims
have, intentionally or unintentionally, created more confusion
and more controversy on an already complicated issue.
Below are several examples of claims being made by
opponents of the Clean Water Protection Act:
Ditches
Some stakeholder groups have claimed that the proposed rule
would expand Clean Water Act authority over ditches. However,
both the Corps and EPA have testified before our Committee that
the proposed rule actually reduces federal authority over
ditches by excluding ditches (including roadside ditches) that
are constructed in dry lands and either (1) contain water less
that year-round, or (2) do not flow unto another waterbody
subject to the Act. By comparison, under the existing Bush-era
guidance, which the proposed rule would replace, similarly
constructed ditches that contain water on a seasonal or
intermittent basis are, today, considered subject to the Clean
Water Act. Accordingly, the scope of ditches covered by the
proposed rule is narrower than that currently allowed under the
existing guidance documents.
Agricultural practices and groundwater
Others claim that the proposed Clean Water Protection
rulemaking would expand Clean Water Act authority over common
agricultural practices or groundwater. Again, the facts
demonstrate otherwise. For example, the proposed rule provides
greater certainty to farmers, ranchers, and forestry operations
by preserving all existing statutory and regulatory exemptions
for common farming, ranching, and forestry practices, including
existing exemptions for prior converted croplands, irrigation
return flows, and ``normal farming, silvicultural, and ranching
activities, such as plowing, seeding cultivating, minor
drainage, harvesting for the production of food, fiber, and
forest products''\12\ Simply put, if you can plow, plant, or
harvest today without a Clean Water permit, you will not need a
permit for these activities under the proposed rule.
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\12\Section 404(f)(1)(A) of the Clean Water Act (33
U.S.C.1344(0(1)(A)).
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Similarly, contrary to claims, the proposed rule would not
affect an existing Clean Water Act statutory exemption for the
construction and maintenance of farm or stock ponds,\13\ and
would, for the first time, specifically exclude (in the
regulations) artificial stock watering and irrigation ponds
constructed on dry lands. The proposed rule also does not
affect the existing regulatory requirements for pesticide and
fertilizer applications--meaning if farmers are applying
pesticides and fertilizer to dry land, the Clean Water Act
simply does not apply. Finally, the proposed rule definitively
states that ``puddles . . . obviously are not, and have never
been thought to be . . . subject to [Clean Water Act]
jurisdiction.''\14\
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\13\Section 404(f)(1)(C) of the Clean Water Act (33
U.S.C.1344(0(1)(C)).
\14\See 76 Fed. Reg. 22188, 22218 (April 21, 2014).
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On groundwater, again, contrary to claims, the proposed
rule clarifies but does not expand Clean Water Act
jurisdiction. Traditionally, the Clean Water Act jurisdiction
has not been asserted over groundwater resources; however, that
has been by practice, and not by the specific terms of existing
Clean Water Act regulations. The proposed rule would, for the
first time, specifically exclude ``groundwater, including
groundwater drained through subsurface drainage systems,'' from
the scope of the Clean Water Act. The heads of both the Corps
and EPA have specifically testified on this point before our
Committee, stating definitely that, ``We do not regulate
groundwater in this rule.''\15\
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\15\Statement of Assistant Secretary of the Army, Jo Ellen Darcy,
Hearing on ``The Impacts of the Proposed Waters of the United States''
Rule on State and Local Governments,'' February 4, 2015.
---------------------------------------------------------------------------
Pubic comment
Opponents of this rulemaking also repeatedly suggest that
the Corps and EPA have failed to solicit and obtain public
comments on this proposed rule. On the contrary, according to
Federal agency witnesses, the amount of public outreach and
comment on this proposed rule is ``unprecedented''\16\ the
history of the Clean Water Act--lasting over 207 days (with two
extended public comment periods), and garnering close to 1
million comments.\17\ In addition, EPA consulted with various
stakeholders, particularly those from the agricultural
community, and held over 400 public meetings throughout the
country on the proposed rulemaking.
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\16\Statement of the Deputy Assistant Administrator for the Office
of Water, Ken Kopocis, Hearing on ``The President's 2016 Fiscal Year
Budget: Administration Priorities for the U.S. Environmental Protection
Agency,'' March 18, 2015.
\17\According to EPA, approximately 19,000 of these comments were
characterizes as ``unique''; with the remaining comments being part of
several mass-mailing efforts by stakeholder groups.
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EPA also utilized special processes for engaging the States
and local government officials. For the States, EPA worked with
the Environmental Council of the States, the Association of
Clean Water Administrators, and the Association of State
Wetland Managers, to meet with individual state representatives
on the proposed rule. Further, when describing EPA's meetings
with state representatives, EPA's Deputy Assistant
Administrator stated, ``At the last meeting, which was
scheduled for two hours, it was a little over an hour, and that
meeting ended because, quite frankly, the states (ran) out of
things they wanted to talk about.''\18\
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\18\Statement of the Deputy Assistant Administrator for the Office
of Water, Ken Kopocis, Hearing on ``The President's 2016 Fiscal Year
Budget: Administration Priorities for the U.S. Environmental Protection
Agency,'' March 18, 2015.
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For local governments, EPA established a special Local
Government Advisory Committee (LGAC) to consult with local
officials on the proposed Clean Water Protection rule. Four
separate meetings were held in St. Paul, Minnesota (May 28,
2014), Atlanta, Georgia (July 10, 2014), Tacoma, Washington
(August 13, 2014), and Worchester, Massachusetts (September 22,
2014). These meetings resulted in a specific LGAC report to the
Administrator of EPA which was published on November 5, 2014.
It is also important to remember that the April 2014
proposed rule is not the first effort of the Corps and EPA to
interpret the scope of Clean Water Act protections since the
two Supreme Court decisions. As noted earlier, this effort
marks the sixth effort since 2003 by the Corps and EPA to
interpret the impact of these decisions on the scope of the
Act. During that entire time, the Corps and EPA have conducted
4 formal public comment periods that have, cumulatively, lasted
over 700 days, and have resulted in the submission of over 1.4
million comments.
The magnitude of public outreach and comment on defining
the five-word phrase ``waters of the United States'' led the
EPA Deputy Administrator to testify that, ``Quite candidly, I
will tell you that there is not a lot of new in the way of
issues that are being raised. Many of the issues that are being
raised are the same ones that have been raised for several
years.''\19\
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\19\Statement of the Deputy Assistant Administrator for the Office
of Water, Ken Kopocis, Hearing on ``The President's 2016 Fiscal Year
Budget: Administration Priorities for the U.S. Environmental Protection
Agency,'' March 18, 2015.
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Scientific basis for proposed rule
Opponents of the proposed rule have also challenged the
federal agencies on the science underlying the scope of Clean
Water Act protections, especially as it relates to the
agencies' interpretation of justice Kennedy's ``significant
nexus'' test for determining whether a waterbody (or wetland)
is subject to the Act.
Recognizing the statutory purposes of the Clean Water Act
to ``restore and maintain the chemical, physical, and
biological integrity of the Nation's waters,'' and need for a
greater scientific understanding of these connections between
various waters (and wetlands), EPA's Office of Research and
Development initiated an independent review and synthesis of
existing peer-reviewed publications from the scientific
literature on this issue. Note, these publications were, for
the most part, conducted by non-Federal scientists and
academics; however, EPA undertook an effort to review these
independent publications, and compile their results into a
single ``connectivity report'' that was published, for public
comment, in September 2013.
EPA published its final connectivity report, in January
2015, which noted that ``the scientific literature
unequivocally demonstrates that streams, individually or
cumulatively, exert a strong influence on the integrity of
downstream waters. All tributary streams, including perennial,
intermittent, and ephemeral streams, are physically,
chemically, and biologically connected to downstream rivers via
channels and associated alluvial deposits where water and other
materials are concentrated, mixed, transformed, and
transported.'' The connectivity report also noted that ``the
incremental effects of individual streams and wetlands are
cumulative across entire watersheds and therefore must be
evaluated in context with other streams and wetlands.''
In October 2014, EPA's Science Advisory Board completed its
own scientific review of the Connectivity report, and concluded
that the report is ``a thorough and technically accurate review
of the literature on the connectivity of streams and wetlands
to downstream waters'' and found that the scientific literature
provides enough information to support a more definitive
statement on the degree of connection between certain,
geographically-isolated waters and downstream waters.
Conclusion
On April 6, 2015, the Corps and EPA submitted a revised
Clean Water Protection rule to OMB for final review, and
publication later this spring.
The Corps and EPA have testified that this revised final
Clean Water rulemaking would provide more certainty and more
clarity to the current permitting process, would reduce
regulatory confusion and costs, and provide more exacting
protections over U.S. waters.
Unfortunately, despite nearly universal calls for increased
clarity and certainty from stakeholder groups, the Republican
majority has made it a priority to halt the current Clean Water
rulemaking, and force the agencies to go back to the drawing
board and start the process all over again, before the public
will ever see the final product.
We have to ask why? Such an approach would perpetuate the
regulatory confusion that exists today, adding additional costs
and delay to the construction of vital projects across the
nation. And, it would leave countless acres of wetlands and
miles of streams--many of which serve as the primary source of
drinking water for 117 million Americans--at continued risk to
pollution and destruction.
Blocking the agencies from releasing their final product
simply makes no sense. It provides no certainty to the
regulated community on where the rules apply, and it leaves
many of our nation's waters unprotected. Let the agencies
finish their work, and if Congress wants to revisit this issue
afterward, it has ample authority to do so.
For these reasons, we oppose H.R. 1732.
Peter A. DeFazio.
Grace F. Napolitano.
Eleanor Holmes Norton.
Jerrold Nadler.
Michael E. Capuano.
Donna F. Edwards.
Andrre Carson.
Jared Huffman.
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