S. Rept. 114-84 - FEDERAL WATER QUALITY PROTECTION ACT114th Congress (2015-2016)
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| Accompanies: | S.1140 |
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S. Rept. 114-84 - 114th Congress (2015-2016)
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Senate Report 114-84 - FEDERAL WATER QUALITY PROTECTION ACT
[Senate Report 114-84]
[From the U.S. Government Publishing Office]
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\
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\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.
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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\
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\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.
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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.
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\4\Letter dated May 14, 2015 to Senator Rounds, from Jo-Ellen
Darcy, Assistant Secretary of the Army for Civil Works.
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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.
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\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
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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.
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\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
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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\
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\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.
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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\
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\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.
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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\
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\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.''
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\13\Id.
\14\http://parkviewdc.com/2011/09/08/hidden-washington-tiber-creek/
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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.
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\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'').
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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\
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\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.).
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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.
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\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).
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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).
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\21\80 Fed. Reg. at 37082.
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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\
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\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.
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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.
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\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
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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.
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\27\80 Fed. Reg. at 37059.
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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.
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\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).
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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]