Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?
                                                       Calendar No. 153
114th Congress]						 [Report
                                 SENATE
 1st Session  ]                                          [114-84

======================================================================
 
                  FEDERAL WATER QUALITY PROTECTION ACT

                                _______
                                

                 July 16, 2015.--Ordered to be printed

                                _______
                                

    Mr. Inhofe, from the Committee on Environment and Public Works, 
                        submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

                         [to accompany S. 1140]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Environment and Public Works, to which was 
referred a bill (S. 1140) to require the Secretary of the Army 
and the Administrator of the Environmental Protection Agency to 
propose a regulation revising the definition of the term 
``waters of the United States,'' and for other purposes, having 
considered the same, reports favorably thereon with amendment 
and recommends that the bill as amended do pass.

                  BACKGROUND AND NEED FOR LEGISLATION

    In 1972, with the enactment of the Federal Water Pollution 
Control Act (Clean Water Act or CWA), Congress gave EPA and the 
Secretary of the Army (acting through the Chief of the Corps of 
Engineers) (Corps) the authority to regulate the discharge of 
pollutants or the discharge of dredged or fill material into 
navigable waters, which Congress defined as ``waters of the 
United States.'' EPA and the Corps of Engineers (the agencies) 
promulgated several regulatory definitions of ``waters of the 
United States,'' most recently by the Corps in 1986 and by EPA 
in 1993.
    Despite the fact that there has been no statutory change in 
the definition of ``navigable waters'' or ``waters of the 
United States'' since 1972 and no regulatory change since 1993, 
the agencies have gradually asserted broader authority by 
expanding their interpretation of the term ``waters of the 
United States.'' Challenges to that assertion of authority, 
claiming regulatory overreach, have reached the Supreme Court 
three times.

Supreme Court Cases

            1. Riverside Bayview
    In United States v. Riverside Bayview, 474 U.S. 121 (1985), 
the Supreme Court addressed adjacent wetlands and found that a 
wetland that directly abuts a ``water of the United States'' is 
a continuation of such water. In doing so, the Court approved 
the rationale provided by the Corps when it included adjacent 
wetlands in the 1977 definition of ``waters of the United 
States.'' See 474 U.S. at 134. As the Court noted: ``In 
determining the limits of its power to regulate discharges 
under the Act, the Corps must necessarily choose some point at 
which water ends and land begins.'' Thus, in situations where a 
wetland abuts a water of the United States, Riverside Bayview 
stands for the proposition that the landward extent of that 
particular water of the United States includes the wetland. It 
does not address a wetland that is not connected to a water of 
the United States as part of a continuum. The Court did not 
express any opinion regarding ``the authority of the Corps to 
regulate discharges of fill material that are not adjacent to 
bodies of open water.'' Id. at 132 n.8.
    Under the current regulatory definition of ``waters of the 
United States:'' ``[t]he term `adjacent' means bordering, 
contiguous, or neighboring. Wetlands separated from other 
waters of the United States by man-made dikes or barriers, 
natural river berms, beach dunes and the like are `adjacent 
wetlands.''' In 2004, the Government Accountability Office 
(then referred to as the General Accounting Office) (GAO) 
reviewed the interpretations of this definition by the various 
Corps Districts. GAO found that Corps Districts apply different 
approaches to identify wetlands that are adjacent to other 
waters of the United States and thus subject to federal 
regulation. According to GAO, ``one district generally 
regulates wetlands located within 200 feet of other waters of 
the United States, while other districts consider the proximity 
of the wetland to other waters of the United States on a case-
by-case basis without any reference to a specific linear 
distance.''\1\ Similarly, some Corps Districts considered the 
flood plain when evaluating adjacency while others did not.\2\
---------------------------------------------------------------------------
    \1\Waters and Wetlands, Corps of Engineers Needs to Evaluate Its 
District Office Practices in Determining Jurisdiction (GAO-04-297) 
(hereinafter 2004 GAO report), at 3.
    \2\Id. at 17-18.
---------------------------------------------------------------------------
            2. SWANCC
    In the second case, Solid Waste Agency of Northern Cook 
County v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 
(2001), the Court addressed water that was not adjacent to a 
navigable water. In SWANCC, the Court declined to go beyond 
Riverside Bayview and assert jurisdiction over waters or 
wetlands that were not ``inseparably bound up with the `waters' 
of the United States.'' 531 U.S. at 167 (quoting Riverside 
Bayview).

          We thus decline respondents' invitation to take what 
        they see as the next ineluctable step after Riverside 
        Bayview Homes: holding that isolated ponds, some only 
        seasonal, wholly located within two Illinois counties, 
        fall under Sec. 404(a)'s definition of ``navigable 
        waters'' because they serve as habitat for migratory 
        birds. As counsel for respondents conceded at oral 
        argument, such a ruling would assume that ``the use of 
        the word navigable in the statute . . . does not have 
        any independent significance.'' [citing the oral 
        argument transcript] We cannot agree that Congress' 
        separate definitional use of the phrase ``waters of the 
        United States'' constitutes a basis for reading the 
        term ``navigable waters'' out of the statute. 531 U.S. 
        at 171-172.

    The Court further said: ``In order to rule for respondents 
here, we would have to hold that the jurisdiction of the Corps 
extends to ponds that are not adjacent to open water. But we 
conclude that the text of the statute will not allow this.'' 
531 U.S. at 167-68 (emphasis added).
    Based on this analysis, the SWANCC Court determined that 
use of a body of water by migratory birds is not a basis for 
jurisdiction under the Act. The rationale used to reach this 
conclusion severely called into question the legitimacy of 
using paragraph (a)(3) of the current regulatory definition of 
waters of the United States to assert jurisdiction: ``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 could affect 
interstate or foreign commerce.'' 33 C.F.R. 328.3(a)(3). This 
section of the regulatory definition of ``waters of the United 
States'' has been invalid in the states that encompass the 
Fourth Circuit (Maryland, Virginia, West Virginia, North 
Carolina, and South Carolina) since 1997. United States v. 
Wilson, 133 F. 3d 251, 257 (4th Cir. 1997).
    EPA and the Corps currently evaluate jurisdiction over 
isolated, intrastate, non-navigable waters under guidance 
issued in 2003. 68 Fed. Reg. 1995 (Jan. 15, 2003). Since the 
SWANCC decision in 2001, in evaluating non-navigable, 
intrastate, non-tributary, non-adjacent water on a case-by-case 
basis, EPA and the Corps have not identified a set of facts 
that would support federal jurisdiction and so have not 
regulated any such waters.
            3. Rapanos
    The third case, Rapanos v. United States, addressing a 
third category of jurisdictional waters, tributaries and their 
adjacent wetlands, resulted in a divided opinion. 547 U.S. 715 
(2006). The four justice plurality held that to be subject to 
the CWA, water must be surface water with a relatively 
permanent connection to navigable water. In a concurring 
opinion Justice Kennedy held that to be subject to CWA 
jurisdiction, water must have a ``significant nexus'' to 
traditional navigable water. The four dissenting justices 
argued for broader jurisdiction, based on ``entwined'' 
ecosystems. 547 U.S. at 797. None of the opinions purported to 
overturn SWANCC.
    EPA and the Corps currently evaluate jurisdiction over 
tributaries and adjacent water under a guidance issued December 
2, 2008. This guidance applies only to those provisions of the 
agencies' regulations at issue in Rapanos--33 C.F.R. 
328.3(a)(1) (navigable water), (a)(5) (tributaries), and (a)(7) 
(adjacent wetlands) and asserts jurisdiction over tributaries 
based on either the ``relatively permanent'' connection test of 
the plurality or the ``significant nexus'' test of Justice 
Kennedy. However, this guidance also states: ``It is clear . . 
. that Justice Kennedy did not intend for the significant nexus 
standard to be applied in a manner that would result in 
assertion of jurisdiction over waters that he and the other 
justices determined were not jurisdictional in SWANCC. Nothing 
in this guidance should be interpreted as providing authority 
to assert jurisdiction over waters deemed non jurisdictional by 
SWANCC.''

Legislative Attempts to Expand CWA Jurisdiction

    On May 20, 2009, then EPA Administrator Lisa Jackson, 
Acting Assistant Secretary of the Army Terrence Salt and three 
other agency officials sent a letter to Senator Boxer urging 
Congress to amend the CWA to extend jurisdiction to the 
broadest extent of Commerce Clause authority.\3\
---------------------------------------------------------------------------
    \3\Letter dated May 20, 2009 to Chairman Boxer, Senate Environment 
and Public Works Committee from Nancy Sutley, Chair of the White House 
Council on Environmental Quality; Lisa Jackson, Administrator of the 
Environmental Protection Agency; Tom Vilsack, Secretary of the 
Department of Agriculture; Ken Salazar, Secretary of the Department of 
the Interior; and Terrence Salt, Acting Assistant Secretary of the Army 
for Civil Works.
---------------------------------------------------------------------------
    To achieve this objective, former Senator Feingold 
introduced the ``Clean Water Restoration Act'' in the 110th 
Congress (S. 1870) and 111th Congress (S. 787), which would 
have removed the term ``navigable'' from the statute and 
extended federal jurisdiction over all waters. This Committee 
marked up the legislation in the 111th Congress and ordered it 
reported to the Senate in June 2009. The Committee did not file 
its report and place the bill on the Senate Calendar until 
December 10, 2010, after the November election in which the 
sponsor of the legislation, Senator Feingold, as well as the 
sponsor of the House counterpart, Congressman Oberstar, both 
failed to be reelected. S. Rept. No. 111-361. No further action 
was taken on this legislation and similar legislation was not 
introduced in subsequent Congresses.

Administrative Expansion of CWA Jurisdiction

    After the failed legislative attempts of the 110th and 
111th Congresses, the agencies began to take administrative 
action to assert authority to regulate geographically isolated 
wetlands and waters that do not contribute surface flow to 
navigable waters (notwithstanding the limitations of SWANCC and 
Rapanos) by creating new regulatory definitions for 
``adjacent'' and ``tributary'' and by expanding the connections 
that the agencies would consider sufficient to create federal 
jurisdiction.
    The agencies initiated this process by issuing a draft 
guidance in April 2011. In November 2011, the agencies 
performed limited outreach to state and local governments on 
this draft guidance. The agencies did not conduct any small 
business outreach. Stakeholders on all sides of the issue 
objected to the agencies' attempt to make substantive changes 
to federal jurisdiction through guidance.
    In September 2013, the agencies withdrew the draft guidance 
and announced that the guidance would form the basis for a new 
regulation. At the same time, EPA released a draft report 
entitled ``Connectivity of Streams and Wetlands to Downstream 
Waters: A Review and Synthesis of the Scientific Evidence'' 
(Connectivity Report). According to EPA, that report, when 
final, was intended to form the scientific basis of its new 
waters of the United States definition.
    EPA and the Corps did not perform a federalism consultation 
or small business outreach when developing the proposed rule.
    EPA and the Corps published a proposed rule to redefine 
``waters of the United States'' on April 21, 2014, and took 
comments on the proposal until November 14, 2014. After 
developing and releasing their proposal, the agencies 
(primarily EPA) held over 400 meetings and webinars to explain 
it, often with a power point presentation.
    EPA released its final Connectivity Report on January 15, 
2015, two months after the close of the comment period.
    EPA and the Corps released the final rule on May 27, 2015, 
less than 200 days after the close of the comment period even 
though the agencies received over 20,000 unique comments on the 
proposed rule, 10% (about 2,000) of which were substantive.\4\ 
The final rule was published in the Federal Register on June 
29, 2015. 80 Fed. Reg. 37054.
---------------------------------------------------------------------------
    \4\Letter dated May 14, 2015 to Senator Rounds, from Jo-Ellen 
Darcy, Assistant Secretary of the Army for Civil Works.
---------------------------------------------------------------------------

Substantive Concerns with Final Rule

    An objective of the agencies has been to ``restore'' 
federal jurisdiction to the reach claimed by the agencies 
before the Supreme Court issued its opinions in SWANCC and 
Rapanos, as they requested Congress to do in 2009.\5\ However, 
no agency has the authority to issue a rule to return to an 
interpretation of a statute that the Supreme Court has declared 
invalid. Once the Supreme Court has identified the limits of 
authority under a federal law, only Congress can change those 
limits.
---------------------------------------------------------------------------
    \5\See McCarthy and Darcy, May 27, 2015, blog describing the final 
rule (``It doesn't protect new kinds of waters that the Clean Water Act 
didn't historically cover.'') (emphasis added), available at http://
blog.epa.gov/blog/?s=water
---------------------------------------------------------------------------
    Unfortunately, the final rule fails to recognize the limits 
established by the Court and even the limits the agencies 
themselves recognized ``historically.''
    These issues are exemplified by treatment of 
``tributaries'' in the final rule, and by the type of 
connections that the rule relies on to assert federal control 
over ``ephemeral,'' ``adjacent,'' and ``other'' waters.
            Tributaries
    Current regulations include ``tributaries'' in the 
definition of ``waters of the United States'' but do not define 
that term. However, the new definition of tributary in the 
final rule exceeds both the limits established by the Supreme 
Court and prior agency interpretations of that term.
    The tributary definition in the final rule codifies the 
agency practice of relying on a ``bed, bank, and ordinary high 
water mark'' to identify the geographic extent of CWA 
jurisdiction over streams,\6\ even though this approach was 
rejected by both the plurality and Justice Kennedy in Rapanos. 
According to Justice Kennedy, the Corps' existing standard for 
tributaries provides no assurance that they (or adjacent 
wetlands) would significantly affect downstream navigable 
water.
---------------------------------------------------------------------------
    \6\The Corps of Engineers already considers a bed and bank to be 
part of an ordinary high water mark. See Corps of Engineers Regulatory 
Guidance Letter 05-05 (2005).

          [T]he breadth of this standard--which seems to leave 
        wide room for regulation of drains, ditches, and 
        streams remote from any navigable-in-fact water and 
        carrying only minor water volumes toward it--precludes 
        its adoption as the determinative measure of whether 
        adjacent wetlands are likely to play an important role 
        in the integrity of an aquatic system comprising 
        navigable waters as traditionally understood. Indeed, 
        in many cases wetlands adjacent to tributaries covered 
        by this standard might appear little more related to 
        navigable-in-fact waters than were the isolated ponds 
---------------------------------------------------------------------------
        held to fall beyond the Act's scope in SWANCC.

    547 U.S. at 781-82 (emphasis added).
    Contrary to EPA's assertions, the record for this 
rulemaking does not demonstrate that all features that meet the 
definition of ``tributary'' in the final rule will have a 
significant effect on navigable water. For example, the 
tributary studies in EPA's Connectivity Report that refer to 
downstream water do not discuss navigable water. Instead, EPA 
assumes, without any record support, that an impact to 
downstream water is equivalent to an impact on navigable 
water.\7\ Further, there are no studies that correlate the 
existence of an ordinary high water mark and the magnitude, 
frequency, or duration of flow.\8\
---------------------------------------------------------------------------
    \7\Connectivity Report, at 38.
    \8\Robert Pierce, Technical Principles Related To Establishing the 
Limits of Jurisdiction for Section 404 of the Clean Water Act (April 
2003), at section 5.2.
---------------------------------------------------------------------------
    The preamble to the final rule further diminishes the 
relevance of the presence of water in a tributary by declaring 
that a bed, bank and ordinary high water mark can be identified 
using remote sensing information, including light detecting and 
ranging data (LiDAR),\9\ even though the United States 
Geological Survey warns that LiDAR can identify any ``network'' 
and is more likely to identify land, not water.\10\ The 
preamble even says that these remote sensing technologies can 
be used in lieu of a site visit, even though Corps guidance 
says this is not appropriate.\11\
---------------------------------------------------------------------------
    \9\80 Fed. Reg. at 37077.
    \10\See Frequently Asked Questions about the NHD & WBD Datasets, 
revised 10/20/14, available at http://nhd.usgs.gov/
Frequently+Asked+Questions+about+the+NHD+&+WBD.htm
    \11\Compare 80 Fed. Reg. at 37077 with A Guide to Ordinary High 
Water Mark (OHWM) Delineation for Non-Perennial Streams in the Western 
Mountains, Valleys, and Coast Region of the United States (Aug. 2014) 
at 39-40.
---------------------------------------------------------------------------
    The preamble to the final rule also makes it clear that 
agencies will rely on historic conditions, as well as current 
conditions, to identify a tributary:

          Such reliable methods that can indicate prior 
        existence of bed and banks and other indicators of 
        ordinary high water mark include, but are not limited 
        to, lake and stream gage data, elevation data, spillway 
        height, historic water flow records, flood predictions, 
        statistical evidence, the use of reference conditions, 
        or through the remote sensing and desktop tools 
        described above.\12\
---------------------------------------------------------------------------
    \12\80 Fed. Reg. at 37077.

    The agencies claim that historic records are needed to 
address ``unpermitted alteration of streams'' but do not 
acknowledge that such alteration may have occurred before any 
permits were required.\13\ For example, part of Constitution 
Avenue in Washington, D.C. was once Tiber Creek. Tiber Creek 
was incorporated into the city's sewer system in 1880 and maps 
exist depicting this former stream.\14\ Under the final rule, 
this part of D.C.'s sewer system could be a ``water of the 
United States.''
---------------------------------------------------------------------------
    \13\Id.
    \14\http://parkviewdc.com/2011/09/08/hidden-washington-tiber-creek/
---------------------------------------------------------------------------
    While the new definition of ``tributary'' requires it to 
``contribute flow'' to a navigable water, the background 
documents for the final rule make it clear that the seepage of 
water into a groundwater aquifer is considered ``contributing 
flow,'' if the same aquifer recharges surface water at any 
distance or any period of time in the future. This means that 
under the final rule an ephemeral stream can disappear 
completely through evaporation and infiltration and still be 
considered a ``water of the United States.''
    EPA's Technical Support Document for the final rule 
acknowledges that not all ephemeral streams that will be 
regulated actually connect to navigable water.\15\ In fact, the 
conclusions in the Connectivity Report that ephemeral streams 
impact downstream water are based on studies of ephemeral 
streams in the arid west, many of which evaporate and 
infiltrate the ground instead of flowing downstream.\16\ 
Despite these facts, the final rule nonetheless asserts that 
all ephemeral streams are ``waters of the United States'' as 
long as they have a bed, bank, and ordinary high water mark.
---------------------------------------------------------------------------
    \15\See Technical Support Document for the Clean Water Rule: 
Definition of Waters of the United States (May 27, 2015) U.S. 
Environmental Protection Agency, at 266 (``[M]any southwestern streams 
lose streamflow to channel transmission losses as runoff travels 
downstream. Connection of runoff and associated materials in ephemeral 
and intermittent streams to downstream waters is therefore a function 
of distance, the relative magnitude of the runoff event, and 
transmission losses.'') (citations omitted) (hereinafter TSD).
    \16\Connectivity Report at B.5 (Case Study: Southwestern 
Intermittent and Ephemeral Streams) (describing ``downstream 
disappearance of surface flow'' and groundwater recharge occurring over 
``months to centuries'').
---------------------------------------------------------------------------
    The agencies satisfy the requirement to ``contribute flow'' 
by assuming that an ephemeral stream contributes flow to 
navigable water through groundwater.\17\ In doing so, it 
appears that the agencies also are assuming that water from a 
stream that infiltrates the ground is the same water that 
recharges a surface stream at another location. As noted by Dr. 
Robert Pierce, there is no scientific basis for that 
assumption. In response to questions from Senator Fisher, he 
notes: ``the Rule with its Preamble and Study ignores the fact 
that most base flows in navigable waters or the U.S. are likely 
formed from ground water sources not related to the water in 
the upstream channel that is morphologically connected to the 
navigable water of the U.S.''\18\
---------------------------------------------------------------------------
    \17\Testimony of Robert J. Pierce, Ph.D., before the Subcommittee 
on Fisheries, Water, and Wildlife of the Committee on Environment and 
Public Works, May 19, 2015, at 5 (``Here we are today with EPA trying 
to regulate ephemeral channels whose only connection to navigable 
waters of the U.S. are that they might recharge ground water.'').
    \18\June 16, 2015 Responses of Robert J. Pierce, Ph.D. to Follow-Up 
Questions for Written Submission, at 2 (citing Heath, R. C. 1983. Basic 
ground-water hydrology. U.S. Geological Survey, Water-Supply Paper 
2220,Washington, D.C.).
---------------------------------------------------------------------------
    As a result, the new definition of tributary not only goes 
beyond the limits identified by both the plurality and Justice 
Kennedy in Rapanos, it also is broader than prior agency 
practice. For example, the Corps has not always considered 
ephemeral streams to be tributaries.\19\ And, the Corps has 
never considered the movement of water through a groundwater 
aquifer to be a basis for creating federal jurisdiction. 
According to Assistant Secretary of the Army, Jo-Ellen Darcy, 
``the Clean Water Act (CWA) does not provide such 
authority.''\20\ Despite this admission, the final rule adopts 
this approach.
---------------------------------------------------------------------------
    \19\See Branch Guidance Letter, COE, Baltimore District, CENAB-OP-
R, No.95-01, Oct. 17, 1994 (``Project Managers are frequently required 
to determine the upstream limits of regulatory jurisdiction, including 
differentiating between intermittent streams, which are regulated (33 
CFR Sec. 328.3(a)(3)), and ephemeral streams, which are not 
regulated.'').
    \20\Responses of Jo-Ellen Darcy, Assistant Secretary of the Army 
(Civil Works) to Environment and Public Works WOTUS Hearing February 4, 
2015, Follow-Up Questions for Written Submission, at 1-2 (``The Corps 
has never interpreted groundwater to be a jurisdictional water or a 
hydrologic connection because the Clean Water Act (CWA) does not 
provide such authority.'') (emphasis added).
---------------------------------------------------------------------------
    Finally, as discussed below, by expressly including man-
made or man-altered features in the definition of ``tributary'' 
the final rule creates significant confusion about the status 
of ditches and other water management features.
            Adjacent Waters
    The current definition of ``waters of the United States'' 
regulates adjacent wetlands, not adjacent waters. ``Adjacent'' 
is defined as ``bordering, contiguous, or neighboring,'' and 
the definition includes ``[w]etlands separated from other 
waters of the United States by man-made dikes or barriers, 
natural river berms, beach dunes and the like.''
    The final rule expands this definition to apply to ``all 
waters'' that are adjacent, rather than wetlands only, and by 
adding a definition of ``neighboring'' that encompasses:
          (A) all waters located within 100 feet of the 
        ordinary high water mark of a water identified in 
        paragraphs (a)(1) through (5) of this section. The 
        entire water is neighboring if a portion is located 
        within 100 feet of the ordinary high water mark;
          (B) all waters located within the 100-year floodplain 
        of a water identified in paragraphs (a)(1) through (5) 
        of this section and not more than 1,500 feet from the 
        ordinary high water mark of such water. The entire 
        water is neighboring if a portion is located within 
        1,500 feet of the ordinary high water mark and within 
        the 100-year floodplain;
          (C) all waters located within 1,500 feet of the high 
        tide line of a water identified in paragraphs (a)(1) or 
        (5) of this section, and all waters within 1,500 feet 
        of the ordinary high water mark of the Great Lakes. The 
        entire water is neighboring if a portion is located 
        within 1,500 feet of the high tide line or within 1,500 
        feet of the ordinary high water mark of the Great 
        Lakes.
    Like the new definition of tributary, the expansion of the 
term ``adjacent'' by creating a definition of ``neighboring'' 
exceeds both the limits established by the Supreme Court and 
prior agency interpretations of the term ``adjacent.''
    According to the preamble, the distances adopted to 
establish the boundaries of waters that will be considered 
``neighboring'' and therefore jurisdictional by rule, are 
``[b]ased on a review of the scientific literature, the 
agencies' technical expertise and experience, and the 
implementation value of drawing clear lines.''\21\ Despite this 
assertion, there is nothing in the scientific literature that 
supports the conclusion that all waters within these geographic 
limits are ``inseparably bound up with the `waters' of the 
United States'' such that they fall within the definition of 
``adjacency'' approved by the Supreme Court in Riverside 
Bayview. See 474 U.S. at 134; see also SWANCC, 531 U.S. at 167 
(quoting Riverside Bayview).
---------------------------------------------------------------------------
    \21\80 Fed. Reg. at 37082.
---------------------------------------------------------------------------
    Further, there is nothing in the record for this rulemaking 
that describes the technical expertise and experience relied 
upon to establish these boundaries. As this definition is not 
consistent with current practice it is difficult to understand 
how it is based on agency experience.\22\
---------------------------------------------------------------------------
    \22\For example, some Corps Districts consider 200 feet to be the 
geographic limit of adjacency or the practice of other Corp Districts 
recognize that multiple barriers can eliminate adjacency. See 2004 GAO 
Report at 3, 17-18.
---------------------------------------------------------------------------
    Finally, as discussed below, by expanding jurisdiction by 
rule to include all adjacent ``waters'' rather than adjacent 
wetlands, the final rule creates confusion about the status of 
water management features.
            Other waters with a ``significant nexus''
    The final rule allows the agencies to regulate ``all 
waters'' in two categories if the agencies determine on a case 
by case basis that the waters have a ``significant nexus'' to a 
navigable or interstate water or territorial sea.
    The first category consists of prairie potholes, Carolina 
Bays and Delmarva Bays, Pocosins, Western vernal pools, and 
Texas coastal prairie wetlands. All wetlands in each of these 
categories will be combined for the ``significant nexus'' 
analysis. The agencies expect this aggregation will result in 
the wetlands ``being found jurisdictional.'' 79 Fed. Reg. 
22188, 22215 (Apr. 21, 2014).
    This means that wetlands found on farmers' fields and other 
land in North Dakota, South Dakota, Iowa, Montana, Minnesota, 
Wisconsin, Texas, Louisiana, Mississippi, Alabama, Georgia, 
Florida, South Carolina, North Carolina, Tennessee, Virginia, 
Maryland, Delaware, New Jersey, New York, Connecticut, 
Massachusetts, New Hampshire, Maine, and California will be 
regulated as ``waters of the United States'' even though they 
are geographically isolated from any navigable or interstate 
water or territorial sea.
    This is a radical change from current law. The Corps of 
Engineers has not identified any isolated water or wetland as a 
water of the United States since the Supreme Court issued its 
2001 opinion in SWANCC.\23\ The U.S. Fish and Wildlife Service 
acknowledges that 88% of prairie potholes are isolated and 
therefore not regulated so they work with farmers throughout 
the upper Midwest on cooperative conservation measures to 
address habitat.\24\ Prairie pothole wetlands total 5.3 million 
acres.\25\ Currently, ``[w]etland easements and Partners for 
Fish and Wildlife agreements protect these important wetlands 
on private land.''\26\ The final rule instead brings those 
acres of private land under federal control.
---------------------------------------------------------------------------
    \23\Email dated June 5, 2015, from Jennifer Greer, U.S. Army Corps 
of Engineers.
    \24\See Dahl, T.E. 2014. Status and trends of prairie wetlands in 
the United States 1997 to 2009. U.S. Department of the Interior; Fish 
and Wildlife Service, Ecological Services, Washington, D.C., at 48.
    \25\http://www.fws.gov/mountain-prairie/pfw/sd/sd10.htm
    \26\http://www.fws.gov/mountain-prairie/pfw/sd/sd10.htm
---------------------------------------------------------------------------
    The second category is ``all water'' in the 100-year flood 
plain of a navigable or interstate water or a territorial sea 
and ``all water'' within 4,000 of the ordinary high water mark 
of any jurisdictional water, including a tributary, as defined 
above. There is no explanation for the geographic limit in the 
preamble to the final rule other than the claim that: ``the 
agencies' experience and expertise indicate that there are many 
waters within the 100-year floodplain of a traditional 
navigable water, interstate water, or the territorial seas or 
out to 4,000 feet where the science demonstrates that they have 
a significant effect on downstream waters.''\27\ As with the 
definition of ``adjacent,'' there is no information in the 
record to support this claim.
---------------------------------------------------------------------------
    \27\80 Fed. Reg. at 37059.
---------------------------------------------------------------------------
    EPA's economic analysis of final rule suggests that the 
geographic limits may be outcome based, rather than 
scientifically based. In this document, EPA states: ``The 
agencies have determined that the vast majority of the nation's 
water features are located within 4,000 feet of a covered 
tributary, traditional navigable water, interstate water, or 
territorial sea.''\28\ So, as in the proposed rule, under the 
final rule the vast majority of water features are potentially 
regulated.
---------------------------------------------------------------------------
    \28\Economic Analysis of the EPA-Army Clean Water Rule (May 2015), 
U.S. Environmental Protection Agency, at 11 (emphasis added) 
(hereinafter EPA Economic Analysis).
---------------------------------------------------------------------------
    Under the final rule, a significant nexus can be 
established by any one of the following functions:
          (i) Sediment trapping,
          (ii) Nutrient recycling,
          (iii) Pollutant trapping, transformation, filtering, 
        and transport,
          (iv) Retention and attenuation of flood waters,
          (v) Runoff storage,
          (vi) Contribution of flow,
          (vii) Export of organic matter,
          (viii) Export of food resources, and
          (ix) Provision of life cycle dependent aquatic 
        habitat (such as foraging, feeding, nesting, breeding, 
        spawning, or use as a nursery area) for species located 
        in a water identified in paragraphs (a)(1) through (3) 
        of this section.
    Use of aquatic habitat, groundwater flow, overland flow, 
and water retention or storage as bases for jurisdiction is 
particularly expansive.
            Aquatic habitat
    The preamble to the final rule says ``non-aquatic species 
or species such as non-resident migratory birds do not 
demonstrate a life cycle dependency on the identified aquatic 
resources and are not evidence of biological connectivity for 
purposes of this rule.''\29\ However, use of water as habitat 
by ``resident'' birds and other animals and the movement of 
insects and plants via any kind of bird (referred to as 
``dispersal'') can establish jurisdiction. According to the 
preamble:
---------------------------------------------------------------------------
    \29\80 Fed. Reg. at 37094.

          Evidence of biological connectivity and the effect on 
        waters can be found by identifying: resident aquatic or 
        semi-aquatic species present in the case-specific water 
        and the tributary system (e.g., amphibians, aquatic and 
        semi-aquatic reptiles, aquatic birds); whether those 
        species show life-cycle dependency on the identified 
        aquatic resources (foraging, feeding, nesting, 
        breeding, spawning, use as a nursery area, etc.); and 
        whether there is reason to expect presence or dispersal 
        around the case-specific water, and if so whether such 
        dispersal extends to the tributary system or beyond or 
        from the tributary system to the case-specific 
        water.\30\
---------------------------------------------------------------------------
    \30\80 Fed. Reg. at 37094.

    The breadth of these considerations is demonstrated by the 
analysis in the Technical Support Document for prairie 
potholes, Carolina Bays and Delmarva Bays, Pocosins, Western 
vernal pools, and Texas coastal prairie wetlands.
    For example, the movement of species to and from prairie 
potholes is considered a connection that can establish 
jurisdiction:

          Waterfowl often move between prairie wetlands during 
        the breeding season in search of food and cover, and 
        some species also use habitats within the river network 
        as wetlands dry or freeze. In addition, a diverse 
        assemblage of microorganisms, invertebrates, 
        amphibians, reptiles, and sometimes fish, use potholes 
        to feed or reproduce. Overland movement of amphibians 
        and mammals can connect potholes to each other and to 
        lakes and streams, and some species can disperse over 
        long distances to feed and breed.\31\
---------------------------------------------------------------------------
    \31\TSD, at 334 (citations omitted).

    The Technical Support Document makes this assertion even 
though the Connectivity Report says direct evidence of such 
connections ``is sparse.''\32\
---------------------------------------------------------------------------
    \32\Connectivity Report, at 5-5.
---------------------------------------------------------------------------
    ``Dispersal'' also is considered a connection that can 
create jurisdiction. According to EPA ``[p]lants and 
invertebrates disperse to and from prairie potholes via 
`hitchhiking' on waterfowl.''\33\ Further, according to the 
agencies, any bird, even a migratory bird, can establish 
jurisdiction by dispersing seeds and insects. ``Migratory birds 
can be an important vector of long-distance dispersal of plants 
and invertebrates between non-floodplain wetlands and the river 
network, although their influence has not been 
quantified.''\34\ In fact, the Technical Support Document 
refers 30 times to dispersal by organisms such as birds and 
mammals of plants (as seeds) and invertebrates (as eggs), 
including the following statement: ``Plants and invertebrates 
can also travel by becoming attached to or consumed and 
excreted by waterfowl. Id. (citing Amezaga et al. 2002). 
Dispersal via waterfowl can occur over long distances. Id. 
(citing Mueller and van der Valk 2002).''\35\
---------------------------------------------------------------------------
    \33\Connectivity Report at 5-5.
    \34\TSD, at 112.
    \35\TSD, at 334 (emphasis added).
---------------------------------------------------------------------------
    The analysis is similarly broad for Carolina and Delmarva 
Bays and vernal pools. According to the Technical Support 
Document, ``Carolina and Delmarva bays provide valuable habitat 
and food web support for numerous plant and animal species that 
can move between bays and other water bodies.''\36\ With 
respect to vernal pools, EPA admits ``[d]irect surface 
connection of vernal pools to downstream waters is 
infrequent.''\37\ But, according to EPA, they can still be 
regulated because ``they are connected to other aquatic 
habitats through dispersal.''\38\
---------------------------------------------------------------------------
    \36\TSD, at 338 (citations omitted).
    \37\Connectivity Report at 5-8
    \38\Id. at 5-9.
---------------------------------------------------------------------------
    As a result, even though in SWANCC the Supreme Court said 
CWA jurisdiction cannot be based on the use of water as habitat 
by a migratory bird, under the final rule seeds and insects 
that move between navigable water and an isolated wetland by 
``hitchhiking'' in the intestines of a bird are sufficient to 
assert federal control. With this new rationale, the agencies 
can regulate the same waters that the Supreme Court said were 
outside the scope of the CWA. This is a stark departure from 
the 2008 guidance, which states:

          It is clear . . . that Justice Kennedy did not intend 
        for the significant nexus standard to be applied in a 
        manner that would result in assertion of jurisdiction 
        over waters that he and the other justices determined 
        were not jurisdictional in SWANCC. Nothing in this 
        guidance should be interpreted as providing authority 
        to assert jurisdiction over waters deemed non 
        jurisdictional by SWANCC.
            Groundwater and over land flow
    The agencies also claim jurisdiction based on groundwater 
connections and overland flow of water. They call groundwater a 
``hydrologic flowpath'' even though, as noted above, Assistant 
Secretary Darcy has told the Committee that jurisdiction based 
on connections through groundwater would violate the CWA.\39\ 
Similarly, overland flow of water and shallow subsurface flow 
is considered a connection.\40\ This means that the reference 
to ``contribution of flow'' in the ``significant nexus'' 
definition includes groundwater flow and sheet flow of 
rainwater or snowmelt over than land and movement of water 
through soil.
---------------------------------------------------------------------------
    \39\See TSD at 129, 132, 148.
    \40\80 Fed. Reg. at 37063, 37070-72, 37085-86, 37089-90, 37093-94.
---------------------------------------------------------------------------
    For example, according to the discussion of vernal pools in 
the Technical Support Document, they ``typically lack permanent 
inflows from or outflows to streams and other water bodies,'' 
they can be ``connected temporarily to such waters via surface 
or shallow subsurface flow (flow through) or groundwater 
exchange (recharge).''\41\ According to EPA's Connectivity 
Study, groundwater recharge can take from months to 
centuries.\42\
---------------------------------------------------------------------------
    \41\TSD, at 344.
    \42\Connectivity Report at B.5.
---------------------------------------------------------------------------
            Water storage
    Under the final rule, water storage alone is sufficient to 
establish jurisdiction.\43\
---------------------------------------------------------------------------
    \43\See, e.g., TSD, at 99, 177.
---------------------------------------------------------------------------
    The agencies claim that prairie potholes can prevent 
flooding. However, that is not true of all prairie potholes. 
The Connectivity Report says:

          Considered collectively, unaltered prairie pothole 
        systems have infrequent direct surface-water 
        connections to downstream waters. Evidence of the 
        consequences of these connections on downstream waters 
        is variable. Some studies document measurable effects 
        of water storage capacity of potholes on flood 
        attenuation and maintenance of stream baseflow, whereas 
        other studies show no effect of pothole water storage 
        on streamflows.\44\
---------------------------------------------------------------------------
    \44\Connectivity Report, at 5-4. See also, Connectivity Report at 
B-18 (``Studies in some regions show a lack of association between 
pothole water storage and aspects of streamflow.'').

    Despite this variability, the agencies claim they can 
assert jurisdiction over prairie potholes and all other 
isolated (``non-floodplain'') wetlands and waters based on the 
---------------------------------------------------------------------------
following connections:

          Wetlands and open waters in non-floodplain landscape 
        settings (hereafter called ``non-floodplain wetlands'') 
        provide numerous functions that benefit downstream 
        water integrity. These functions include storage of 
        floodwater; recharge of ground water that sustains 
        river baseflow; retention and transformation of 
        nutrients, metals, and pesticides; export of organisms 
        or reproductive propagules (e.g., seeds, eggs, spores) 
        to downstream waters; and habitats needed for stream 
        species. This diverse group of wetlands (e.g., many 
        prairie potholes, vernal pools, playa lakes) can be 
        connected to downstream waters through surface-water, 
        shallow subsurface-water, and groundwater flows and 
        through biological and chemical connections.\45\
---------------------------------------------------------------------------
    \45\TSD, at 98.
---------------------------------------------------------------------------
    After reviewing the connections identified in the analysis 
of prairie potholes, Carolina Bays and Delmarva Bays, Pocosins, 
Western vernal pools, and Texas coastal prairie wetlands, it is 
difficult to identify any water that the agencies could not 
find jurisdictional under the final rule.
            Exclusions
    According to EPA, under the final rule the ``vast majority 
of the nation's water features'' can be regulated, unless 
excluded. The final rule excludes some water features, but the 
exclusions are limited.
    For example, the final rule excludes ditches with ephemeral 
or intermittent flow. The terms ``ephemeral'' and 
``intermittent'' are defined in the preamble using the 
definitions similar to these used by the Corps of Engineers in 
its nationwide permit program.\46\ However, these terms do not 
address water management systems into which water is 
intentionally introduced. For example, ditches can be used to 
manage irrigation water. Irrigation water is not ephemeral flow 
because it does not flow ``only in response to precipitation 
events in a typical year.''\47\ Irrigation ditches also do not 
hold intermittent flow because groundwater does not provide 
part of the ditch's flow.\48\
---------------------------------------------------------------------------
    \46\80 Fed. Reg. at 37076.
    \47\Id.
    \48\Id.
---------------------------------------------------------------------------
    The final rule excludes ditches with ephemeral or 
intermittent flow only if the ditch is not a ``relocated 
tributary'' or ``excavated in a tributary.'' However, the 
definition of tributary includes ``ditches,'' so the definition 
and the exclusion are circular. It is not clear where one ends 
and the other begins. This limitation also fails to recognize 
that many ditches are located in low areas that, if they were 
unaltered, might be considered a tributary under the final 
rule. In cases where ditches were created long before permits 
were required the final rule creates significant uncertainty by 
giving the agencies the authority to claim they can infer the 
prior existence of a tributary where none exists today.\49\ 
Under the final rule, if the agencies think a tributary once 
existed where a ditch is located today, they can claim that the 
ditch is a ``water of the United States.''
---------------------------------------------------------------------------
    \49\80 Fed. Reg. at 37077.
---------------------------------------------------------------------------
    Further, the treatment of ditches in the final rule is 
different from the treatment of waste treatment systems and 
grassed waterways. In creating a regulatory exemption for waste 
treatment systems, EPA expressly recognized that this exemption 
was intended to cover pre-existing treatment systems, even if 
built in waters of the United States, or impoundments of waters 
of the United States.\50\ However, no such consideration is 
given to ditches that predate the enactment of the CWA. The new 
exemption for grassed waterways also is more expansive. If a 
grassed waterway was ``lawfully constructed'' it is not a 
``water of the United States.'' In contrast, roadside and other 
ditches that were lawfully constructed in an area that the 
agencies now consider to be a ``tributary'' will be regulated 
under the final rule. There is no explanation for this 
inconsistent treatment.
---------------------------------------------------------------------------
    \50\45 Fed. Reg. 48,620 (July 21, 1980) (suspending the limitation 
that the exclusion is limited to manmade bodies of water to address 
this issue).
---------------------------------------------------------------------------
    The exclusion for ditches that do not flow into a navigable 
or interstate water or territorial sea uses the same language 
found in the definition of ``tributary'' regarding flow 
``directly or through another water.'' As noted in the 
discussion of the tributary definition above, the agencies are 
taking the position that ``flow'' includes infiltration into a 
groundwater aquifer. This interpretation will render this ditch 
exclusion meaningless.
    The final rule excludes a number of water features, 
including stormwater control features and wastewater recycling 
features. However, each of these exclusions applies only to 
features built on ``dry land.'' The final rule does not define 
``dry land.'' Further, unlike waste treatment systems or 
grassed waterways, no consideration is given to the fact that 
water management features that may have been built before 
enactment of the CWA or water management features may have been 
lawfully constructed, with section 404 permits, after the 
enactment of the CWA.
    Finally, there is no exclusion in the final rule for the 
management of water that is not wastewater or stormwater, such 
as water supply systems. This means that reservoirs and canals 
used to move water around would be regulated if considered 
adjacent waters or tributaries. This expansion of jurisdiction 
raises significant questions about control over these water 
supplies. For example, if a reservoir or distribution system is 
leaking and that leak is recharging a groundwater aquifer, is a 
404 permit required to fix the leak? Could EPA, notwithstanding 
water rights, object to or place conditions on the permit to if 
EPA wants that groundwater recharge to continue?\51\ If a 
distribution system is leaking and the water from the leak has 
created a wetland, is a 404 permit required to fix the leak 
and, notwithstanding water rights, could EPA object to the 
permit in order to maintain the wetland? As these questions 
demonstrate, without an exemption for water management 
features, the final rule could give Corps, EPA, and citizen 
litigants the ability to use section 404 permits reallocate 
water resources. This result would be directly contrary to the 
CWA, which states that:
---------------------------------------------------------------------------
    \51\For example, the United States Geological Survey found that as 
a result of reservoirs, percolation following irrigation, and seepage 
from distribution system of the Columbia Basin Project, groundwater in 
the Pasco basin had increased by five million acre feet.

          It is the policy of Congress that the authority of 
        each State to allocate quantities of water within its 
        jurisdiction shall not be superseded, abrogated or 
        otherwise impaired by this Act. It is the further 
        policy of Congress that nothing in this Act shall be 
        construed to supersede or abrogate rights to quantities 
        of water which have been established by any State.\52\
---------------------------------------------------------------------------
    \52\CWA Sec.  101(g).

    Section 101(g) was added to the Act in 1977. According to 
---------------------------------------------------------------------------
its sponsor:

          This amendment came immediately after the release of 
        the Issue and Option Papers for the Water Resource 
        Policy Study now being conducted by the Water Resources 
        Council. Several of the options contained in that paper 
        called for the use of Federal water quality legislation 
        to effect Federal purposes that were not strictly 
        related to water quality. Those other purposes might 
        include, but were not limited to Federal land use 
        planning, plant siting and production planning 
        purposes. This ``State's jurisdiction'' amendment 
        reaffirms that it is the policy of Congress that this 
        act is to be used for water quality purposes only.\53\
---------------------------------------------------------------------------
    \53\123 Cong. Rec. &. S19677-78, (daily ed., Dec. 15, 1977) (floor 
statement of Senator Wallop).

    The final rule ignores section 101(g) of the CWA and will 
implement that Act ``to effect Federal purposes'' that go far 
beyond water quality.

Procedural Concerns with Proposed Rule

            Timing of Connectivity Report
    The Connectivity Report was not finalized before EPA issued 
the proposed rule and the final Connectivity Report was not 
available during the public comment period on the WOTUS 
proposed rule.
    The agencies developed and published a proposed rule in 
April 2014, before the Draft Connectivity Report had been 
reviewed by EPA's Science Advisory Report. In fact, that review 
was not completed until October 17, 2014, and the Final 
Connectivity Report was not completed until January 15, 2015, 
over two months after the comment period had ended on the 
proposed rule. Thus, the report that is purported to be the 
foundation for the agencies' rule was not available for public 
comment.
            Failure to Comply with Executive Order 13132 on Federalism
    In developing the proposed rule, the agencies failed to 
conduct outreach to state and local governments. The limited 
outreach conducted in 2011 on the draft guidance and 
presentations made after issuing the proposed rule are no 
substitute for consultation when developing a proposal and do 
not meet the requirements of Executive Order 13132 on 
Federalism.
    Instead of conducting a federalism consultation, the 
agencies asserted that: ``This rule does not have federalism 
implications. It will not have substantial direct effects on 
the states, on the relationship between the national government 
and the states, or on the distribution of power and 
responsibilities among the various levels of government.''\54\ 
Comments on the proposed rule by the U.S. Conference of Mayors, 
the National League of Cities, the National Association of 
Counties, the National Association of Regional Councils, the 
National Association of County Engineers, the American Public 
Works Association, and the National Association of Flood and 
Storm Water Management Agencies strongly disagree with this 
conclusion.\55\ In testimony before this Committee, a witness 
representing the National Association of Counties also strongly 
disagreed.\56\
---------------------------------------------------------------------------
    \54\80 Fed. Reg. at 37102.
    \55\EPA Docket No. EPA-HQ-OW-2011-0880-15784, at 3.
    \56\Testimony of the Honorable Sallie Clark, Commissioner, El Paso 
County, Colorado, on behalf of the National Association of Counties, 
before the Senate Committee on Environment and Public Works and the 
House Committee on Transportation and Infrastructure, February 4, 2015.
---------------------------------------------------------------------------
            Failure to Comply with the Regulatory Flexibility Act
    The Regulatory Flexibility Act requires agencies to examine 
the impacts of a proposed regulation on small governmental 
entities and on small businesses. In the final rule, EPA and 
the Corps certified that the proposed rule will not have 
significant economic impacts on a substantial number of small 
entities.\57\ To support this certification, the agencies claim 
that the final rule will have no adverse economic impact. They 
based this claim on an assertion that the scope of jurisdiction 
under the final rule is narrower than under existing 
regulations.\58\
---------------------------------------------------------------------------
    \57\80 Fed. Reg. at 37102.
    \58\Id.
---------------------------------------------------------------------------
    The Chief Counsel for the Small Business Administration 
Office of Advocacy determined that the agencies' certification 
was in error and improper. Comments filed by SBA Office of 
Advocacy state:

          Advocacy and small businesses are extremely concerned 
        about the rule as proposed. The rule will have a direct 
        and potentially costly impact on small businesses. The 
        limited economic analysis which the agencies submitted 
        with the rule provides ample evidence of a potentially 
        significant economic impact. Advocacy advises the 
        agencies to withdraw the rule and conduct a SBAR panel 
        prior to promulgating any further rule on this 
        issue.\59\
---------------------------------------------------------------------------
    \59\EPA Docket No. EPA-HQ-OW-2011-0880-7958, at 9.

    The SBA Office of Advocacy reiterated this positon in 
testimony before the Senate Committee on Small Business and 
Entrepreneurship.\60\
---------------------------------------------------------------------------
    \60\Testimony of Charles Maresca, Director of Interagency Affairs, 
Office of Advocacy, U.S. Small Business Administration, before the 
Senate Committee on Small Business and Entrepreneurship, May 19, 2015.
---------------------------------------------------------------------------
    The comments filed by the U.S. Conference of Mayors, the 
National League of Cities, the National Association of 
Counties, the National Association of Regional Councils, the 
National Association of County Engineers, the American Public 
Works Association, and the National Association of Flood and 
Storm Water Management Agencies make the same point with 
respect to impacts on small governmental entities, saying 
``based on analysis by our cities and counties, the proposed 
rule will have a significant impact on all local governments, 
but on small communities particularly.''\61\
---------------------------------------------------------------------------
    \61\EPA Docket No. EPA-HQ-OW-2011-0880-15784, at 2.
---------------------------------------------------------------------------
            Failure to conduct an Unfunded Mandates Reform Act analysis
    The final rule states that ``[t]his action does not contain 
any unfunded mandate under the regulatory provisions of Title 
II of the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 
1531-1538), and does not significantly or uniquely affect small 
governments.''\62\ In support of this claim the agencies assert 
that, as a definition, the final rule imposes no enforceable 
duties on small governments. As noted above, local governments 
and the SBA Office of Advocacy disagree with this analysis and 
believe that the final rule will impose direct and significant 
costs on small local governments and small businesses.
---------------------------------------------------------------------------
    \62\80 Fed. Reg. at 37102.
---------------------------------------------------------------------------
            Failure to conduct an adequate economic analysis of the 
                    proposed rule
    The Regulatory Flexibility Act also requires an economic 
analysis. However, the agencies chose not to comply with that 
Act and instead EPA conducted a superficial analysis of the 
impacts of the rule.
    For example, EPA's economic analysis asserts that states 
will incur no costs associated with water quality standards 
development, monitoring, or developing total maximum daily 
loads for impaired waters.\63\ States disagree. Susan Metzger, 
the current Deputy Secretary for Agriculture for the State of 
Kansas, and the former head of the state water program, 
testified that the rule will increase the miles of federally 
regulated streams in Kansas by 460%, increasing state costs to 
run their water quality program.\64\ This conclusion is 
supported by an evaluation conducted by the State of Missouri. 
After an extensive stakeholder process, the State of Missouri 
recently adopted changes to its stream classification program, 
expanding it to include all streams represented in the 
1:100,000 scale of the USGS National Hydrology Dataset. Based 
on an evaluation of the aquatic resources of the state, 
Missouri chose not to regulate ephemeral waters. According to 
the State, if it had to regulate all stream miles discernable 
at the 1:24,000 scale of the National Hydrology Dataset, it 
would add an additional 158,565 miles of stream to its existing 
classified waters network and would more than double the 
State's monitoring costs from about $11.2 million a year to 
$24.2 million.\65\
---------------------------------------------------------------------------
    \63\EPA Economic Analysis, at 15-16.
    \64\Testimony of Susan Metzger, before the Subcommittee on 
Fisheries, Water, and Wildlife of the Committee on Environment and 
Public Works, May 19, 2015, transcript, at 46.
    \65\Missouri Department of Natural Resources, Regulatory Impact 
Report, In Preparation for Proposing, An Amendment to 10 CSR 20-7.031, 
Missouri Water Quality Standards (June 3, 2011), at 25, 35
---------------------------------------------------------------------------

                     OBJECTIVES OF THE LEGISLATION

    The purpose of S. 1140 is to return this rulemaking to EPA 
and the Corps to develop a new definition of ``waters of the 
United States'' that respects the limits of Clean Water Act 
jurisdiction identified by the SWANCC and Rapanos courts, and 
that is developed in consultation with state and local 
governments after taking into account small business and small 
local government impacts, unfunded mandates, Executive Orders 
12866 and 13563, relating to improving regulation, and 
Executive Order 13604, relating to federal permitting and 
review of infrastructure projects.

                      SECTION-BY-SECTION ANALYSIS

Section 1. Short title: Federal Water Quality Protection Act

Sec. 2. Findings

    (1) Cooperative federalism and consultation with states are 
the policy of Congress under section 101(b) of the Federal 
Water Pollution Control Act.
    (2) Adequate consultation is necessary when regulations are 
developed.
    (3) States have robust programs that regulate more water 
than is covered by federal regulation.
    (4) The Administrative Procedure Act requires notice of and 
an opportunity to comment on scientific information, 
definitions, exclusions, and standards.

Sec. 3. Definitions

    This section defines terms used in the Federal Water 
Quality Protection Act, including Administrator, body of water, 
interstate waters, isolated, municipality, normal year, point 
source, public notice and an opportunity for comment, 
Secretary, stream, surface hydrologic connection, traditional 
navigable water, and wetlands.
    The definitions of the terms ``interstate water'' and 
``traditional navigable water'' are based on current regulatory 
definitions. Adoption of these regulatory definitions should 
not be construed as legislative acquiescence to the 
interpretations of these terms set forth in the technical 
support document located in the record for the final rule.
    The definition of the term ``normal year'' makes it clear 
that the hydrologic normal is to be determined by the Natural 
Resources Conservation Service of the Department of 
Agriculture.
    The definition of the term ``municipality'' is broader that 
the definition of that term in the Federal Water Pollution 
Control Act because it includes entities with authority over 
water distribution, as well as waste disposal.
    The term ``stream'' is defined as a naturally formed 
channel that has a bed, bank, and ordinary high water mark. S. 
1140 recommends that federal jurisdiction over streams be based 
on flow, so not all streams meeting this definition would be 
federally regulated.
    The definition of the term ``surface hydrologic 
connection'' acknowledges that such a connection may exist even 
when water is not present. S. 1140 recommends that federal 
jurisdiction over streams be based on flow, so not all streams 
with a ``surface hydrologic connection'' would be federally 
regulated.

Sec. 4. Revised definition; principles, and process

    This section requires EPA and the Corp to develop a revised 
definition of ``waters of the United States'' following the 
principles and process set forth in the section.
    (a) Revised definition. This subsection states that a 
revision to or guidance on the definition of the term 
``navigable waters'' or ``waters of the United States'' shall 
have no force and effect unless the revision adheres to the 
principles set forth subsection (b) and the Administrator and 
the Secretary carry out each action described in subsection 
(c).
    The Committee intends that the final rule published on June 
29, 2015, at 80 Fed. Reg. 37054, be set aside. Under this 
subsection, the agencies are directed to develop a new 
regulatory definition of ``waters of the United States.''
    (b) Principles. This subsection requires the Secretary and 
the Administrator to adhere to the following principles in 
promulgating a revised regulatory definition:
    (1) The Federal Water Pollution Control Act is an Act to 
protect traditional navigable waters from pollution.
    This paragraph in no way revises or supersedes the 
statement in section 101(a) of the Federal Water Pollution 
Control Act that the objective of the Act is to ``restore and 
maintain the chemical, physical, and biological integrity of 
the Nation's waters.'' It reinforces the language in section 
101(a)(1)-(7) that establishes water quality and pollution 
elimination and control goals and policies ``to achieve this 
objective.''
    The Committee is concerned that the final rule seeks to 
expand the authority of the Administrator and the Secretary 
into areas beyond water quality, including habitat, water 
supply, and flood control.
    (2) The definition of waters of the United States should 
include the following:
    (A) Traditional navigable water and interstate waters.
    This subparagraph reaffirms regulation of these categories 
of waters, which are federally regulated under current law.
    (B) Reaches of streams identified on maps created using the 
USGS National Hydrology Dataset Plus at the 1:100,000 scale 
from Reach Address Database Version 3.1, consistent with the 
scale and reach address database used by the Administrator 
during July 2009 in conjunction with information on drinking 
water source protection areas.
    In this subparagraph, S. 1140 addresses EPA's concerns 
about the burden placed on agencies to prove they have 
jurisdiction over streams by creating a rebuttable presumption 
that the same streams that EPA has identified as sources of 
drinking water are waters of the United States.
    EPA relies on the following paper for the proposition that 
for the proposition that about 58% of all waterways are 
intermittent, ephemeral, or headwater streams. Nadeau, Tracie-
Lynn, and Mark Cable Rains, 2007. ``Hydrological Connectivity 
Between Headwater Streams and Downstream Waters: How Science 
Can Inform Policy.'' Journal of the American Water Resources 
Association (JAWRA) 43(1):118-133. Nadeau and Rains conducted 
their analysis using the National Hydrography Dataset (NHD) 
medium resolution data at the 1:100,000 scale. Id., at 120. In 
2009, EPA updated that analysis using the ``medium'' resolution 
NHDPlus at 1:100,000-scale from the Reach Address Database 
Version 3.1, and compared it to drinking water source water 
protection areas. Based on this analysis, EPA concluded that 
117 million people get their drinking water from intermittent, 
ephemeral or headwater streams. See http://water.epa.gov/
lawsregs/guidance/wetlands/ upload/
2009_12_28_wetlands_science_surfacedrinking _water 
_surface_drinking_water_study_summary.pdf

    The Committee agrees that most stream reaches that EPA has 
identified as drinking water sources, as well as other streams 
that are visible at the NHD medium resolution, are likely to be 
streams with actual flow that can carry pollutants to navigable 
waters. Except in the arid west, most ephemeral streams will 
not be visible at the NHD medium resolution.
    (C) Reaches of streams with surface flow in a normal year 
of sufficient volume, duration, and frequency that pollutants 
in that reach of stream would degrade the water quality of a 
traditional navigable water, based on a quantifiable and 
statistically valid measure of flow.
    The Committee recognizes that the NHD medium resolution 
dataset is not a perfect tool, and there may be streams that 
have sufficient flow to carry pollutants to navigable water 
that are not visible on maps created with that dataset. With 
this subparagraph, S. 1140 also recommends a final definition 
of waters of the United States also include other stream 
reaches with sufficient flow in a normal year that could carry 
pollutants that would degrade navigable water.
    (D) Wetlands next to other waters of the U.S. that in a 
normal year prevent the movement of pollutants to navigable 
water.
    The Committee recognizes that wetlands next to waters of 
the United States can filter pollutants and keep them out of 
navigable water. The wetlands identified in this subparagraph 
are those that the Supreme Court identified as ``inseparably 
bound up with the `waters' of the United States.'' SWANCC, 531 
U.S. at 167 (quoting Riverside Bayview).
    (3) The definition of waters of the United States should 
not include the following:
    (A) Water located below the surface of the land, including 
soil water and groundwater.
    This subparagraph makes it clear that jurisdiction under 
the Federal Water Pollution Control Act applies only to surface 
water. This language is necessary because expansion of 
jurisdiction through evolving administrative interpretations is 
extending vertically, beneath the ground, as well as laterally 
across the landscape. For example, there are studies in EPA's 
Connectivity Report that reference ``soil water.'' As discussed 
above, the final rule considers groundwater to be a flow path 
that can create federal jurisdiction. According to the 
testimony presented to the Committee by Dr. Robert Pierce, on 
May 19, 2015, some Regional Supplements to the 1987 Wetlands 
Delineation Manual suggest that water that is water located 12 
inches below the surface of the land can be considered to be a 
wetland even when the soils at the surface of the land are not 
saturated. Under this interpretation, a high groundwater table 
and Alaskan permafrost could be considered a water of the 
United States. For example, in Alaska, permafrost can be 
located within 12 inches of the surface and also can be a 
confining layer that traps water in the soil, below the 
surface. This language forestalls attempts to expand federal 
jurisdiction to these subsurface waters, where saturation does 
not reach the surface of the land.
    (B) Water not located within a body of water.
    (C) Isolated ponds, whether natural or manmade, including a 
farm pond, fish pond, quarry, mine pit, ornamental pond, 
swimming pool, construction pit, fire control pond, sediment 
pond, and any other isolated facility or system that holds 
water.
    (D) Systems used for collecting, conveying, holding or 
treating stormwater or floodwater (including roadside and 
agricultural ditches), wastewater, water supplies, and 
agricultural or silvicultural water.
    This subparagraph gives recognition to the general rule 
that water that is being managed as stormwater, floodwater, 
wastewater, and domestic, agricultural or silvicultural water 
supply is subject to an intervening use and is not a water of 
the United States. As such, the discharge of such water back 
into a ``water of the United States,'' after the intervening 
use, may require a permit. See, e.g., 73 Fed. Reg. 33697, 33704 
(June 13, 2008) (``For example, if the water is withdrawn to be 
used as cooling water, drinking water, irrigation, or any other 
use such that it is no longer a water of the U.S. before being 
returned to a water of the U.S., the water has been subjected 
to an intervening use.''). The extent to which this exemption 
applies to systems created in navigable water or, after the 
date of enactment of the Clean Water Act, in other waters of 
the United States, is determined pursuant to paragraph (4) 
below.
    (E) Reaches of streams that do not have enough surface flow 
of volume, duration, and frequency in a normal year to 
contribute pollutants to and degrade the water quality of a 
traditional navigable water.
    As noted above, S. 1140 creates a presumption that the same 
streams that EPA has identified as sources of drinking water 
are ``waters of the United States.'' As is also noted above, 
the maps EPA used to identify those streams are not perfect, so 
this is a rebuttable presumption. For example, some ephemeral 
streams in the arid west may be visible at the NHD medium 
resolution and yet may not supply water to a navigable water. 
In paragraph (2)(C), discussed above, S. 1140 recommends that 
additional streams may be regulated based on actual flow, even 
if they are not visible on the NHD medium resolution map. As a 
corollary to that provision, this subparagraph recommends that 
the presumption that a stream is regulated because it is 
visible on the NHD medium resolution map can be rebutted based 
on evidence of a lack of actual flow.
    (F) Prior converted cropland.
    Prior converted cropland is not a water of the United 
States. This subparagraph includes a cross reference to the 
definition of prior converted cropland in U.S. Department of 
Agriculture regulations to make it clear that USDA determines 
what land meets the definition of prior converted cropland.
    (G) Water removed from the waters of the United States 
pursuant to a section 404 or a section 10 permit.
    This subparagraph recognizes the fact that the United 
States can affirmatively surrender jurisdiction over a water of 
the United States pursuant to a permit.
    (4) Unless another exclusion applies, some water management 
systems described under paragraph (3)(D) may still be waters of 
the U.S. if they were constructed within waters of the U.S.
    (A) Systems or components of systems converted from a water 
of the United States without a 404 permit after the effective 
date of regulations that implement section 404 should remain 
waters of the United States.
    With this subparagraph, the Committee recommends that 
exemptions for water management systems under paragraph (3)(D) 
above, would not apply to systems created in regulated waters 
after federal regulations that control dredging and filling of 
waters of the United States came into effect, unless the 
creation of the system was authorized under a section 404 
permit or the system was exempt from section 404 permitting 
under exemptions for normal farming, silviculture, and ranching 
activities, for the construction or maintenance of farm or 
stock ponds or irrigation ditches, or for the maintenance of 
drainage ditches; or the system was otherwise exempt from Clean 
Water Act permitting.
    (B) Systems or components of systems converted from a 
traditional navigable water at any time (including before the 
enactment of the Federal Water Pollution Control Act) should 
remain a water of the United States unless the system is 
identified as a point source in a 402 permit (such as an MS4 
permit); the water being managed is exempt irrigation return 
flow or agricultural stormwater; the construction or use of the 
system is exempt normal farming, silviculture, and ranching 
activities, or exempt construction or maintenance of farm or 
stock ponds or irrigation ditches, or exempt maintenance of 
drainage ditches; or the system is a waste treatment system.
    With this subparagraph, the Committee recognizes that 
navigable waters remain federally regulated unless the United 
States affirmatively surrenders jurisdiction. Under this 
section, surrender of jurisdiction can be memorialized in a 
section 402 permit (as well as a section 404 permit or section 
10 permit as noted in paragraph (3)(G) above). For example, if 
a navigable river is incorporated into a municipal separate 
storm sewer system and the permit for that system does not 
affirmatively surrender jurisdiction over the river, then the 
river would remain a regulated navigable water of the United 
States. Certain permitting exemptions also are deemed to be a 
surrender of jurisdiction.
    (5) In promulgating a revised definition of waters of the 
United States the Corps of Engineers and the Administrator must 
take into consideration the following:
    (A) Use of a body of water by an organism is not a basis 
for establishing Federal jurisdiction.
    In SWANCC, the Corps claimed jurisdiction over an isolated 
pond based on a claim that use of waters used by migratory 
birds and endangered species affected interstate commerce. The 
Supreme Court held that, as a matter of statutory 
interpretation, use of a pond as habitat by 121 species of 
birds is not grounds for asserting federal jurisdiction over 
the pond even though some of the birds were migratory. SWANCC, 
at 164, 171-72. The former ``Migratory Bird Rule'' that was 
invalidated by the Supreme Court was narrower than the 
jurisdiction now claimed by EPA and the Corps. Under that so-
called rule, the Corps did not claim jurisdiction based on the 
use of water as habitat by birds that are not migratory or 
species that are not endangered. Yet, the final rule claims 
this authority. The Committee finds it incredible that the 
agencies assert that, following SWANCC, they can expand 
jurisdiction beyond the ``Migratory Bird Rule'' to encompass 
use of water as habitat by any species other than a migratory 
bird. This subparagraph prevents the agencies from doing so.
    (B) Supplying water to a groundwater aquifer, or storing 
water in isolated bodies of water is not a basis for 
establishing Federal jurisdiction.
    As discussed above, the Corps of Engineers has never 
considered the movement of water through a groundwater aquifer 
to be a basis for creating federal jurisdiction and the 
Assistant Secretary of the Army, Jo-Ellen Darcy, ``the Clean 
Water Act (CWA) does not provide such authority.'' This 
subparagraph precludes EPA and the Corps from expanding federal 
authority by considering groundwater to be a flow path.
    As discussed above, water storage also is not currently a 
basis for federal jurisdiction. In fact, water storage and 
water supplies are expressly left to states under the Federal 
Water Pollution Control Act. This subparagraph precludes EPA 
and the Corps from considering water storage to be within their 
authority under the Federal Water Pollution Control Act.
    (C) The water cycle connects all water over sufficiently 
long periods of time and distances, but does not provide a 
basis for establishing Federal jurisdiction.
    Water moves in a cycle that includes rainfall, the sheet 
flow of rain over land, infiltration into groundwater, and the 
movement of water through an aquifer, often over long periods 
of time. If the water cycle was a basis for federal 
jurisdiction, all water could be regulated. This subparagraph 
precludes use of this theory as a basis for regulating water.
    (6) Waters of the United States should be identified on 
maps to promote certainty and transparency.
    This subparagraph does not say that a map would necessarily 
establish federal jurisdiction. But, as jurisdictional 
determinations are made, presenting them on maps would help 
promote certainty and transparency.
    (b) Consultation and Report.
    This subsection sets forth the process that EPA and the 
Corps of Engineers must follow in developing a new definition 
of ``waters of the United States.''(1) Federalism.
    (A) The Corps of Engineers and EPA must follow the 
consultation process established in the Federalism Executive 
Order, whether or not they determine the definition of waters 
of the U.S. affects other levels of government or implicates 
federalism concerns.
    The Federalism Executive Order applies to all regulations, 
legislative comments or proposed legislation, and other policy 
statements or actions that have substantial direct effects on 
the States, on the relationship between the national government 
and the States, or on the distribution of power and 
responsibilities among the various levels of government. The 
order does not specify who determines that such effects occur. 
In the WOTUS rulemaking, the Administrator and the Secretary 
claimed that the rule does not have federalism implications. As 
noted above, states and local governments strongly disagree, as 
does the Committee. This section ensures that a new regulation 
is developed following federalism consultation.
    (B) Before a proposal is made, EPA and the Corps must seek 
input and advice from Governors, state departments with 
authority over water quality and supply, state departments of 
agriculture, and local governments. The topics of consultation 
must include: categories of waters that should be subject to 
Federal jurisdiction, role of the states, and whether channels 
in which water is present only during or for a short time after 
a precipitation event are correctly categorized as 
geomorphological features rather than hydrologic features.
    This section describes the timing and subject matters of 
the federalism consultation. After proposing a revision to the 
definition of waters of the United States, EPA conducted many 
meetings and gave many power point presentations, but such 
actions do not meet the consultation requirements of the 
Executive Order or S. 1140. The Committee believes that to be 
meaningful, consultation must take place before an agency has 
issued a proposed rule.
    (2) Regulatory Flexibility.
    The Corps of Engineers and EPA must conduct the economic 
analyses and Small Business Regulatory Enforcement Fairness Act 
panels required under the Regulatory Flexibility Act, whether 
or not they determine the definition of waters of the U.S. has 
a significant impact on small governments or small businesses, 
and whether or not they consider the costs to be direct or 
indirect.
    The Regulatory Flexibility Act requires an agency to 
prepare a regulatory flexibility analysis of any rule subject 
to notice-and-comment rulemaking requirements under the 
Administrative Procedure Act or any other statute unless the 
agency certifies that the rule will not have a significant 
economic impact on a substantial number of small entities. The 
Administrator and the Secretary made such a certification with 
respect to the waters of the United States rule. However, as 
noted above, the Small Business Administration Office of 
Advocacy strongly disagrees with that certification and has 
commented and testified that EPA and the Corps failed to meet 
their obligations under the Regulatory Flexibility Act. The 
Committee agrees with the Small Business Administration and S. 
1140 would require the agencies to consider impacts on small 
businesses and small local governments of a revised definition 
of waters of the United States.
    (3) Unfunded Mandates.
    The Corps of Engineers and EPA must do an unfunded mandates 
analysis, whether or not they consider the impacts of the 
definition of waters of the U.S. to be direct or indirect, or 
determine that expenditures resulting from the regulation would 
meet the thresholds established under the Unfunded Mandates 
Reform Act.
    Under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
1531-1538), an unfunded mandate includes regulations that 
impose an enforceable duty on state, local, or tribal 
governments as well as the private sector. Agencies are 
required to do an unfunded mandates analysis and develop an 
effective process to permit elected officers of State, local, 
and tribal governments to provide meaningful and timely input 
in the development of regulatory proposals containing 
significant Federal intergovernmental mandates. In developing 
the WOTUS rule, EPA and the Corps did not follow this process. 
Instead, the agencies claim that the rule imposes no 
enforceable duties on local governments or any other person. 
The Committee strongly disagrees. State and local governments 
are required to implement regulatory programs, provide public 
services, and maintain public infrastructure. As noted in May 
19, 2015 testimony provided by Susan Metzger, representing the 
State of Kansas, and Mark Pifher, representing Colorado Springs 
Utilities and the National Water Resources Association, as well 
as February 4, 2015 testimony provided by Sallie Clark, 
representing El Paso County, Colorado and the National 
Association of Counties, the WOTUS rule will impose significant 
costs on states, who face expanded costs resulting from state 
water quality programs, and local governments, who manage 
municipal separate storm sewer systems, roadside ditches, and 
water supply systems and face increased permitting and 
maintenance costs. This paragraph requires EPA and the Corps to 
conduct the analyses and outreach required under the Unfunded 
Mandates Reform Act.
    (4) Improving Regulation and Regulatory Review.
    The Corps of Engineers and EPA must follow Executive Orders 
12866 and 13563, relating to improving regulation, whether or 
not they consider a definition of waters of the U.S. is a 
significant regulatory action or significantly affects state, 
local and tribal governments.
    EPA and the Corps did consider the WOTUS rule to be a major 
rule that is subject to Executive Orders 12866 and 13563. 
However, the Committee believes that the agencies failed to 
meet the requirement of Executive Order 12866 to impose the 
least burden on society, consistent with obtaining regulatory 
objectives, taking into account, among other things, and to the 
maximum extent practicable, the costs of cumulative 
regulations; to ``act only with the greatest caution where 
State or local governments have identified uncertainties 
regarding the constitutional or statutory authority of the 
national government;'' and to strictly adhere to constitutional 
principles. In addition, the Committee believes that the 
agencies failed to meet the public participation requirements 
of section 2 of Executive Order 13563, which require an 
opportunity for public comment regarding all pertinent parts of 
the rulemaking docket, including relevant scientific and 
technical findings and seeking the views of those who are 
likely to be affected before issuing a notice of proposed 
rulemaking.
    (5) Improving performance of Federal permitting and review 
of infrastructure projects.
    The Corps of Engineers and EPA must consider Executive 
Order 13604, relating to federal permitting and review of 
infrastructure projects.
    The Committee believes that the agencies failed to meet the 
requirement in Executive Order 13604 to reduce permitting times 
and regulatory reviews. This paragraph requires consideration 
of such issues.
    (6) Report.--This paragraph requires the Corps of Engineers 
and EPA to provide to the Committee, not less than 30 days 
before proposing a regulation, a report that describes how the 
proposed regulations comply with the requirements in paragraphs 
(1)–(5).
    (7) Timing.--This paragraph requires the Corps of Engineers 
and EPA to use best efforts to provide not less than 180 days 
for consultation, 120 days for notice and comment, and to 
publish a final rule by the end of 2016.

Sec. 5. Measure of flow

    This section directs the Corps of Engineers to provide 
quantifiable and statistically valid measures of the volume, 
duration, and frequency of flow in streams in different 
geographic areas that would, in a normal year, allow pollutants 
in reaches of streams in those geographic areas to flow to and 
degrade the water quality of a traditional navigable water, 
after providing notice and an opportunity for comment.

Sec. 6. Report to Congress

    This section requires GAO to issue a report on 
jurisdictional determinations every three years, including an 
analysis of the interpretations of the regulation by the 
districts of the Corps of Engineers and the regional offices of 
the EPA, whether the interpretations are inconsistent, measures 
to reduce inconsistency, and the impacts of interpretations on 
Federal permitting and review of infrastructure projects.

Sec. 7. Effect of Act

    This section states that the Act does not affect the 
authority to require a permit to discharge pollutants from a 
point source to navigable water or to take an enforcement 
action; the regulation of water transfers; State authority 
under State law, or the definition of point source.

                          LEGISLATIVE HISTORY

    S. 1140 was introduced on April 30, 2015. The bill was 
referred to the Committee on Environment and Public Works. The 
Committee considered the bill in a business meeting on June 10, 
2015. An amendment in the nature of a substitute was approved, 
and the Committee ordered the bill reported to the Senate.

                                HEARINGS

    A joint oversight hearing on ``Impacts of the Proposed 
Waters of the United States Rule on State and Local 
Governments'' was held with the House Committee on 
Transportation and Infrastructure on February 4, 2015.
    Field hearings on ``Impacts of the Proposed Waters of the 
United States Rule on State and Local Governments and 
Stakeholders,'' were held on March 14, 2015, in Lincoln, 
Nebraska; on April 6, 2015, in Anchorage, Alaska; and on April 
8, 2015, in Fairbanks, Alaska.
    The Committee held a legislative hearing on S. 1140 on May 
19, 2015.

                             ROLLCALL VOTES

    The Committee on Environment and Public Works met to 
consider S. 1140 on June 10, 2015. An amendment in the nature 
of a substitute made technical and conforming changes. The 
Committee considered the amendment in the nature of a 
substitute as original text and favorably reported the bill, as 
amended by the substitute, by a roll call vote of 11-9.

Amendments rejected

    A total of five amendments to the bill were offered and not 
approved by the Committee, as follows:
    1. Cardin-Boxer Amendment #1--An amendment that would 
replace the statement that the Federal Water Pollution Control 
Act is an Act to protect traditional navigable waters from 
pollution with section 101 of that Act, and would allow the 
Administrator and the Corps to vitiate an Act of Congress by 
making a determination relating to exposure to toxic pollutants 
and risk of illness (rejected by a roll call vote of 9 yeas, 11 
nays).
    2. Boxer #1--An amendment that would add a savings clause 
that says nothing affects EPA or the Corps' authority to 
protect the quality of surface water for public water supplies 
(rejected by a roll call vote of 9 yeas, 11 nays).
    3. Boxer #5--An amendment that would allow the 
Administrator and the Secretary to vitiate an Act of Congress 
by making a determination that implementation of the bill is 
likely to increase costs; lengthen the time to obtain a permit; 
or perpetuate the lack of regulatory predictability and 
certainty (rejected by a roll call vote of 9 yeas, 11 nays).
    4. Markey #1--An amendment that would allow the 
Administrator to vitiate an Act of Congress by making a 
determination that implementation of the bill is likely to 
increase the probability of toxic exposure to toxic pollutants 
in amounts that adversely impact public health of people served 
by drinking water systems (rejected by a roll call vote of 9 
yeas, 11 nays).
    5. Boxer # 6--An amendment that would allow the 
Administrator to vitiate an Act of Congress by making a 
determination that implementation of the bill will increase 
interstate movement of pollutants, increase costs incurred by 
States, or cause or contribute to the impairment of a surface 
or coastal waters of a State (rejected by a roll call vote of 9 
yeas, 11 nays).

Final committee vote to report

    S. 1140, as amended by the amendment in the nature of a 
substitute, was approved and ordered to be reported to the full 
Senate. The roll call vote to report the bill was 11 to 9 in 
favor (Senators Inhofe, Vitter, Barrasso, Capito, Crapo, 
Boozman, Sessions, Wicker, Fischer, Rounds, and Sullivan voted 
yea, and Senators Boxer, Carper, Cardin, Sanders, Whitehouse, 
Merkley, Gillibrand, Booker, and Markey voted nay).

                      REGULATORY IMPACT STATEMENT

    In compliance with section 11(b) of rule XXVI of the 
Standing Rules of the Senate, the committee finds that S. 1140 
does not create any additional regulatory burdens, nor will it 
cause any adverse impact on the personal privacy of 
individuals.

                          MANDATES ASSESSMENT

    In compliance with the Unfunded Mandates Reform Act of 1995 
(Public Law 104-4), the committee notes that the Congressional 
Budget Office found, `S. 1140 contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act (UMRA).'

                          COST OF LEGISLATION

    Section 403 of the Congressional Budget and Impoundment 
Control Act requires that a statement of the cost of the 
reported bill, prepared by the Congressional Budget Office, be 
included in the report. That statement follows:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, June 30, 2015
Hon. Jim Inhofe,
Chairman, Committee on Environment and Public Works,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 1140, the Federal 
Water Quality Protection Act.
    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.
    Enclosure.

S. 1140--Federal Water Quality Protection Act

    Under S. 1140, any rule issued after February 4, 2015, that 
would redefine the scope of waters protected by the Clean Water 
Act (CWA) would need to meet certain criteria. Some of the 
criteria specified in the bill concern the process used by the 
Environmental Protection Agency (EPA) and the U.S. Army Corps 
of Engineers (Corps) when issuing a final rule. Other criteria 
concern the types of streams and wetlands that could be 
considered ``waters of the United States.'' (Under the CWA, EPA 
and the Corps, along with the states, serve as co-regulators of 
activities affecting the nation's waters.) S. 1140 also would 
require that EPA and the Corps use their best efforts to issue 
a final rule by December 31, 2016, that defines ``waters of the 
United States.''
    According to EPA, enacting this legislation would result in 
the withdrawal of the proposed rule published in the Federal 
Register on April 21, 2014, that defines the scope of waters 
protected by the CWA (that is, ``waters of the United 
States''). CBO estimates that implementing S. 1140 would cost 
$5 million over the 2016-2020 period, subject to the 
availability of appropriations, to develop a new proposed rule. 
The legislation would affect direct spending because it would 
reduce fees collected by the Corps for issuing permits under 
the CWA (such fees are offsetting receipts, which are treated 
as reductions in direct spending). However, CBO estimates that 
the change in the amounts collected from those fees would be 
negligible. Because the legislation would affect direct 
spending, pay-as-you-go procedures apply. Enacting S. 1140 
would not affect revenues.
    In developing a new proposed rule under S. 1140, EPA and 
the Corps would be required to consult with state and local 
regulatory officials to review alternative approaches for 
defining ``waters of the United States.'' EPA and the Corps 
also would be required to prepare a report for the Congress 
that describes how the proposed new regulation would meet the 
criteria specified in the bill. In addition, S. 1140 would 
require the Government Accountability Office to report on the 
regulations issued by EPA and the Corps every three years. 
Finally, S. 1140 would require the Corps to establish 
statistically valid measures of the volume, duration, and 
frequency of water flow in streams.
    Under S. 1140, 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. However, based on EPA's prior experience 
in developing new regulations, CBO estimates that it would cost 
an additional $4 million over the 2016-2020 period to conduct 
extensive outreach efforts to interested parties, address 
public comments, and prepare a report to the Congress. We also 
expect that it would cost the Corps about $1 million over the 
same period to conduct field work and data analysis in 
coordination with the EPA to develop new rules for issuing 
permits under an alternative regulatory proposal.
    The April 24, 2014, proposed rule would expand the area 
covered by CWA regulations and lead to an increase in 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 over the next several years. 
Because the amount charged for those permits is small, CBO 
estimates enacting S. 1140 would have an insignificant effect 
on offsetting receipts over the 2016-2025 period.
    S. 1140 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.
    On April 27, 2015, CBO transmitted a cost estimate for H.R. 
1732, the Regulatory Integrity Protection Act of 2015, as 
ordered reported by the House Committee on Transportation and 
Infrastructure on April 15, 2015. Both pieces of legislation 
would require EPA and the Corps to develop a new CWA rule. 
Although the bills include different requirements throughout 
the rulemaking process, the estimated costs for the bills are 
the same.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. This estimate was approved by Theresa Gullo, Assistant 
Director for Budget Analysis.

    MINORITY VIEWS OF BOXER, CARDIN, SANDERS, WHITEHOUSE, MERKLEY, 
  GILLIBRAND, BOOKER, AND MARICEY ON S. 1140, AS REPORTED BY THE EPW 
                               COMMITTEE

    Nothing is more important than protecting the lives and 
livelihoods of the American people. The Clean Water Act 
prevents the uncontrolled pollution of the streams, rivers, and 
lakes where our children swim and provide drinking water to 
millions of Americans. If the Clean Water Act does not apply, 
polluters can dump raw sewage that would sicken children 
swimming in contaminated waters. Factories can discharge 
industrial waste containing heavy metals, such as arsenic, 
lead, and selenium. Drilling companies can discharge wastewater 
containing known carcinogens like benzene and chromium-6. We 
need a strong Clean Water Act to ensure this does not happen.
    Decades ago, the United States experienced widespread 
damage and degradation to our environment--the Cuyahoga River 
in Cleveland, Ohio, was on fire and our lakes were dying from 
pollution. The American people demanded action, and in 1972 
Congress passed the Clean Water Act by an overwhelming 
bipartisan majority.
    Clean water is vital to a healthy economy. Large, diverse 
parts of the economy depend on clean water for profitable safe 
operations, this includes: manufacturing and energy production 
to agriculture, food service, tourism, and recreation.
    Recent events in Toledo, Ohio, remind us of that our 
drinking water remains vulnerable to pollution. Half a million 
residents in this major American city went without drinking 
water for days because nutrient pollution washed into Lake 
Erie, causing toxic algae to bloom.
    There have been three major Supreme Court cases that have 
taken up the issue of the jurisdictional scope of waters 
protected by the Clean Water Act (CWA). The two cases decided 
in 2001 and 2006 created confusion as to what is protected by 
the CWA.
    On March 25, 2014 the EPA and Army Corps jointly released a 
proposed rule to define the regulatory term ``waters of the 
United States''' under the CWA. 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. Sections 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.'' The Clean Water Rule, which was finalized on May 27, 
2015, protects drinking water for up to 117 million Americans. 
The rule has been subject to extensive public comment (over 1 
million comments received) and stakeholder outreach. EPA made 
significant changes in the final rule to address issues raised 
during the comment period.
    The rulemaking was in response to Supreme Court cases in 
2001 and 2006 that created confusion as to what is protected by 
the Act. Republican Senators and House Members (through floor 
statements, hearings, and letters) repeatedly asked the EPA and 
Corps of Engineers to clarify the jurisdiction of the CWA and 
conduct a rulemaking on the jurisdiction of the Clean Water 
Act. As recently as April 2013, Republican Senators sent a 
letter to EPA asking them to stop processing the proposed 
guidance and instead focus on a rulemaking. The recent Clean 
Water Rule clarifies the confusion caused by the Supreme Court 
decisions, and responds to the Congressional demands for a 
rule. The rule also provides greater clarity as to which waters 
are protected by the Clean Water Act (based on over 1200 peer 
reviewed, and published scientific studies), only protects 
waters historically protected by the Clean Water Act, does not 
require any new permits for agricultural practices and 
explicitly includes all of the previous exemptions and 
exclusions that agriculture has enjoyed.
    This bill prohibits EPA from finalizing any change to its 
regulations until EPA conducts a new 120-day comment period, 
carries out a 180-day consultation with state and local 
governments, conducts analyses under 5 different statutes and 
executive orders, and reports to Congress. This is a totally 
unreasonable timeline. While this bill purports to have a new 
rule completed before the end of 2016, the required comment 
period and consultation requirement a coupled with review by 
Office of Management and Budget (OMB) will necessarily delay 
this new rule into the next Administration. Further, the bill 
effectively changes the scope of the Clean Water Act by 
establishing extensive new statutory criteria defining the 
scope of the Act. Many of these criteria are poorly defined and 
depart considerably from the historical interpretation and 
scope of the Act. In addition, this bill would create more 
confusion for businesses and landowners by taking away new 
exemptions and sending EPA and the Corps back to square one to 
try to figure out the confusing new terms and standards in the 
bill. After years of uncertainty following two Supreme Court 
decisions, we should not pass legislation that would create 
more confusion and invite years of new litigation.
    That is why the following law professors, scientists, and 
environmental organizations do not support the bill reported by 
the EPW Committee, including:
     Over 40 leading law professors that study, teach, 
and write about the Clean Water Act, who have concluded that 
``S. 1140 would constitute a massive weakening of the Clean 
Water Act.''
     Over 80 scientists with expertise in the 
importance of streams and wetlands, as well as the Society for 
Freshwater Science,
     Numerous Sportsmen groups, including the American 
Fly Fishing Trade Association, Backcountry Hunters and Anglers, 
Izaalt Walton League of America, Theodore Roosevelt 
Conservation Partnership, and Trout Unlimited.
    Below is a summary of key concerns with S. 1140.
    Unnecessarily Delays Clean Water Act Improvements that 
People Want:
     Many stakeholder groups have called for this 
rulemaking, including: representatives from business, 
agricultural, and environmental organizations; States; 
Congress; the Courts; and others.
     The overwhelming majority of American citizens 
(almost 90%) that reviewed the proposed rule commented 
favorably on it.
     A recent poll of small businesses (July, 2014) 
found that 80% of small business owners support the protections 
for clean water contained in the proposed Clean Water Rule.
     A recent poll by the League of Conservation Voters 
found that 80% of Americans support the Clean Water Rule.
    Postpones or prevents critical protections for our Nation's 
waters:
     Clear protections for the Nation's tributary 
system, and adjacent and other waters, is critical to ensuring 
flood impact reductions, clean drinking water, pollution 
control, and other functions to all our downstream communities.
     The legislation would remove protections for 
millions of acres of wetlands, lakes, and streams that have 
been covered under the Clean Water Act for over 40 years--
waters particularly important to sportsmen, commercial and 
recreational fisherman, wildlife, endangered species.
    Wastes time and government resources:
     EPA and the Corps already have carried out the 
necessary consultations and analyses required by law and 
executive order--repeating these consultations will waste 
millions of dollars.
     Benefits of rule are foregone for a minimum of two 
years and possibly much longer.
     Significant time and expense has been invested in 
the current rulemaking by Federal agencies, states, local 
governments, and the public. This legislation would ignore that 
effort and require that much of it be repeated.
    Creates uncertainty for landowners and businesses:
     The final Clean Water Rule makes it much clearer 
where the Clean Water Act applies, by defining what is subject 
to the Act and what is not.
     The final Clean Water Rule already clarifies the 
uncertainty created by two Supreme Court decisions. However, 
the legislation creates new terms and statutory standards that 
would create more confusion and less consistency and invite 
further litigation.
     The final rule would also establish new regulatory 
exemptions for water types that are not regulated under the 
Act. The legislation would block implementation of these 
exemptions, including exemptions for:
           Numerous types of ditches
           Artificial lakes and ponds
           Water-filled depressions associated with 
        mining or construction
           Erosional features, including gullies and 
        rills
           Puddles
           Groundwater
           Features constructed to convey, treat or 
        store stormwater
           Wastewater recycling structures
           Groundwater recharge basins

                                   Barbara Boxer.
                                   Benjamin Cardin.
                                   Sheldon Whitehouse.
                                   Jef Merkley.
                                   Bernard Sanders.
                                   Kirsten Gillibrand.
                                   Cory Booker.
                                   Edward Markey.
                        CHANGES IN EXISTING LAW

    Section 12 of rule XXVI of the Standing Rules of the Senate 
requires changes in existing law made by the bill as reported 
to be shown. S. 1140 does not amend existing law.

                                  [all]