```

[House Report 113-609]
[From the U.S. Government Publishing Office]

113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-609

======================================================================

 
                    REGULATORY CERTAINTY ACT OF 2014

                                _______
                                

 November 12, 2014.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Shuster, from the Committee on Transportation and Infrastructure, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 4854]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 4854) to amend the Federal Water 
Pollution Control Act to clarify when the Administrator of the 
Environmental Protection Agency has the authority to prohibit 
the specification of a defined area, or deny or restrict the 
use of a defined area for specification, as a disposal site 
under section 404 of such Act, and for other purposes, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                                CONTENTS

                                                                   Page
Purpose of the Legislation.......................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     5
Legislative History and Consideration............................     5
Committee Votes..................................................     6
Committee Oversight Findings.....................................    10
New Budget Authority and Tax Expenditures........................    10
Congressional Budget Office Cost Estimate........................    10
Performance Goals and Objectives.................................    11
Advisory of Earmarks.............................................    11
Duplication of Federal Programs..................................    11
Disclosure of Directed Rulemakings...............................    11
Federal Mandates Statement.......................................    12
Preemption Clarification.........................................    12
Advisory Committee Statement.....................................    12
Applicability to the Legislative Branch..........................    12
Section-by-Section Analysis of the Legislation...................    12
Changes in Existing Law Made by the Bill, as Reported............    13

                       Purpose of the Legislation

    H.R. 4854, the ``Regulatory Certainty Act of 2014,'' amends 
the Federal Water Pollution Control Act to provide that the 
Administrator of the Environmental Protection Agency (EPA) does 
not have the authority to restrict or deny the use of a 
particular disposal site under section 404 of such Act before 
the U.S. Army Corps of Engineers (Corps) has completed its 
review of a 404 permit application or after the Corps has 
issued the permit.

                Background and Need for the Legislation

                          THE CLEAN WATER ACT

    In 1972, Congress passed the Federal Water Pollution 
Control Act Amendments of 1972 (commonly known as the ``Clean 
Water Act'' or the ``CWA''; 33 U.S.C. Sec. 1251 et seq.). The 
objective of the CWA is to restore and maintain the chemical, 
physical, and biological integrity of the Nation's waters. The 
primary mechanisms for achieving this objective are the CWA's 
general prohibition against the discharge of pollutants into 
jurisdictional waterbodies, and the Act's permitting process 
for such discharges, either through a National Pollutant 
Discharge Elimination System (NPDES) permit (see CWA Sec. 402), 
or through a separate permit program, for the discharge of 
dredged or fill material into jurisdictional waterbodies, 
including wetlands (see CWA Sec. 404).
    The U.S. Environmental Protection Agency (EPA) has the 
basic responsibility for administering and enforcing most of 
the CWA, including the NPDES permit program, and the U.S. Army 
Corps of Engineers (Corps) has lead responsibility for 
administering the dredge or fill (wetlands) permit program 
under section 404 of the CWA. However, the EPA does have a 
complementary role in administering section 404, both in the 
development of environmental guidelines (called the 404(b)(1) 
guidelines) to provide a means of evaluating whether any 
discharge of fill is environmentally acceptable, and through 
its review under section 404(c) (discussed below). Under the 
wetlands permitting program, the Corps has authority to issue 
dredge or fill permits (usually for a permit term of five 
years) for the discharge of materials into jurisdictional 
waterbodies at specified disposal sites. It is unlawful for a 
facility to discharge dredged or fill materials into a 
jurisdictional waterbody unless the discharge is authorized by 
and in compliance with a dredge or fill (section 404) permit 
issued by the Corps.

          EPA'S PERMIT VETO AUTHORITY UNDER CWA SECTION 404(C)

    Even though the Corps has the lead responsibility to 
implement the CWA's section 404 permit program, the EPA retains 
residual authority under CWA section 404(c) to oversee, review, 
and object to the Corps' issuance of section 404 permits for 
the discharge of dredged or fill material into jurisdictional 
waters, to ensure that such permitting decisions meet the 
minimum requirements of the CWA. Section 404(c) of the CWA 
confers the EPA authority, under specified procedures, to 
prevent the Corps from authorizing a particular disposal site:

          ``(c) The Administrator is authorized to prohibit the 
        specification (including the withdrawal of 
        specification) of any defined area as a disposal site, 
        and he is authorized to deny or restrict the use of any 
        defined area for specification (including the 
        withdrawal of specification) as a disposal site, 
        whenever he determines, after notice and opportunity 
        for public hearings, that the discharge of such 
        materials into such area will have an unacceptable 
        adverse effect on municipal water supplies, shellfish 
        beds and fishery areas (including spawning and breeding 
        areas), wildlife, or recreational areas. Before making 
        such determination, the Administrator shall consult 
        with the Secretary. The Administrator shall set forth 
        in writing and make public his findings and his reasons 
        for making any determination under this subsection.''
    (CWA 404(c).)

    To exercise this ``veto'' authority, the EPA must 
determine, after notice and opportunity for public hearings, 
that certain unacceptable adverse environmental effects on 
municipal water supplies, shellfish beds, and fishery areas, 
wildlife, or recreation areas would result. The EPA also must 
consult with the Corps and make public its written findings and 
reasons for any determinations it makes under section 404(c).
    In general, once the EPA has approved a Corps section 404 
permit, the implementation and interpretation of the permit is 
left to the Corps. However, according to the U.S. Court of 
Appeals for the D.C. Circuit, the EPA retains the authority to 
``prohibit, restrict, or withdraw the specification [of a 
disposal site under section 404(c)] `whenever' [the 
Administrator of the EPA] makes a determination that the 
statutory `unacceptable adverse effect' will result.'' (See 
Mingo Logan Coal Co. v. U.S. EPA, 714 F.3d 608, 613 (D.C. Cir. 
2013).)

                 EPA REVOCATION OF A SECTION 404 PERMIT

    In the Mingo Logan Coal Co. case before the D.C. Circuit 
Court of Appeals, the Mingo Logan Coal Company (Mingo Logan) 
applied to the Corps for a permit under CWA section 404 to 
discharge fill material in connection with the Spruce No. 1 
surface mine project, located in Logan County, West Virginia. 
Prior to the issuance of the permit, the project applicant 
conducted a lengthy environmental review, in which the EPA 
participated.
    In 2007, the Corps issued the section 404 permit to Mingo 
Logan. While the EPA expressed concerns with the terms of the 
permit prior to its issuance, the agency did not object to the 
permit at the time of its issuance. Subsequently, the mine 
operated pursuant to, and in compliance with, the section 404 
permit.
    In September 2009, almost two years after the Corps issued 
the section 404 permit, the EPA requested that the Corps use 
its discretionary authority to suspend, revoke, or modify the 
permit that it had issued to Mingo Logan. The Corps rejected 
the EPA's request, finding no grounds to suspend, revoke, or 
modify the permit. In March 2010, the EPA then published a 
Proposed Determination to prohibit, restrict, or deny the 
authorized discharges to certain of the waters associated with 
the Spruce project site, without alleging any violation of the 
section 404 permit.
    In January 2011, the EPA issued a Final Determination to 
withdraw the discharge authorization, effectively revoking the 
permit and halting development of the mine. This action to 
revoke the permit was more than three years after the permit's 
issuance. The EPA stated that it had the ability under the CWA 
to initiate a section 404(c) action to retroactively withdraw a 
discharge site specification in a permit even after permit 
issuance. (See 75 Fed. Reg. 16788, 16790 (Apr. 2, 2010) (EPA 
Notice of Proposed Determination To Prohibit, Restrict, or Deny 
the Specification, or the Use for Specification (Including 
Withdrawal of Specification), of an Area as a Disposal Site; 
Spruce No. 1 Surface Mine, Logan County, WV).)
    The permit holder challenged the EPA's revocation of the 
section 404 permit in federal district court. (See Mingo Logan 
Coal Company Inc. v. U.S. EPA, 850 F.Supp.2d 133 (D.D.C. 
2012).) The district court issued an opinion in 2012 that 
overturned the EPA's retroactive withdrawal of the project's 
permit discharge site specification. (See id.) In April 2013, 
the U.S. Court of Appeals for the D.C. Circuit reversed the 
district court, ruling that the EPA had not exceeded its 
authority. (See Mingo Logan Coal Co. v. U.S. EPA, 714 F.3d 608 
(D.C. Cir. 2013).) The permit holder then applied to the U.S. 
Supreme Court to review the case, but in March 2014, the 
Supreme Court announced it would not review the 2013 Appeals 
Court decision. (See Mingo Logan Coal Co. v. U.S. EPA, No. 13-
599 (U.S. Mar 24, 2014) (cert. denied).)

              EPA PREEMPTIVE VETO OF A SECTION 404 PERMIT

    In January 2014, the EPA released an assessment of the 
Bristol Bay watershed in southwestern Alaska on how future 
development, and in particular large scale mining projects, may 
affect Bristol Bay's salmon fishery and water quality in the 
region. (See Final EPA Report, An Assessment of Potential 
Mining Impacts on Salmon Ecosystems of Bristol Bay, Alaska (EPA 
910-R-14-001A-C) (A Notice of Availability was published in the 
Federal Register at 79 Fed. Reg. 3369 (Jan. 21, 2014)).) The 
assessment questioned the future of salmon habitat should a 
large scale mine be opened in the region.
    As a result of that assessment, the EPA initiated a 
regulatory process involving a possible mining project of the 
Pebble deposit, a large ore body in the Bristol Bay watershed 
in southwest Alaska. This regulatory process could lead to the 
first-ever ``preemptive'' section 404(c) ``veto'' of a 
development project, even though the mining project developer 
has yet to apply for a 404 permit. EPA has based its actions to 
preemptively restrict mining in the region on section 404(c) of 
the CWA.
    In July 2014, the EPA issued a proposal that would place 
restrictive conditions on mine development in the Bristol Bay 
region. The EPA proposed to restrict all discharges of dredged 
or fill material related to mining that would result in 
specified losses of streams and connected wetlands, lakes, and 
ponds with documented salmon occurrence, and result in 
specified streamflow alterations. (See EPA, Proposed 
Determination to Restrict the Use of an Area as a Disposal 
Site; Pebble Deposit Area, Southwest Alaska (A Notice of 
Availability and Public Hearing was published in the Federal 
Register at 79 Fed. Reg. 42314 (July 21, 2014)).) The EPA is 
currently soliciting public comments and holding public 
hearings on the proposed restrictive conditions, and will make 
a final determination.
    The proposed restrictions, when finalized, would 
effectively dictate the terms of any mining project in the 
region--or deny the permitting by the Corps of Engineers of 
such project--before developers have proposed the project and 
applied for the permit--in effect ``pre-emptively'' vetoing 
such a project.

 LEGISLATION TO CLARIFY WHEN EPA CAN VETO A PROJECT UNDER CWA SECTION 
                                 404(C)

    The EPA's moves under CWA section 404(c) to 
``preemptively'' veto the prospective project in Alaska, along 
with the EPA's actions to revoke (``retroactively'' veto) parts 
of the Spruce project's issued permit, both have raised 
concerns about the lack of finality and certainty of the CWA 
section 404 permit process, and the effect this lack of 
certainty could have on future investments in vital 
infrastructure and other development projects that require 404 
permits. The CWA section 404 permit process is critical to a 
wide range of industries and projects.
    In response to the EPA's recent actions to withdraw the 
discharge authorization for the Spruce project after issuance 
of the project's permit, and intent to preemptively veto the 
project in Alaska, the bill's sponsor introduced H.R. 4854 to 
clarify when the EPA has the authority to restrict or deny the 
use of a particular disposal site under section 404 of the CWA. 
The bill provides that the EPA has the authority under section 
404(c) to withdraw a project's discharge site specification 
only after the Corps has completed its review of a 404 permit 
application and prior to the Corps' issuance of the 404 permit 
for the project. Under the bill, the EPA does not have the 
authority to disapprove a section 404 dredge or fill permit for 
a disposal site before the Corps has completed its review of a 
404 permit application or after the Corps has issued the 
permit.

                                Hearings

    On July 15, 2014, the Subcommittee on Water Resources and 
Environment held an oversight hearing to receive testimony from 
representatives of private sector stakeholders and of the legal 
academic community on the EPA's interpretation of its permit 
veto authority under section 404 of the CWA.

                 Legislative History and Consideration

    On June 12, 2014, Subcommittee on Water Resources and 
Environment Chairman Bob Gibbs, along with 13 original co-
sponsors, introduced H.R. 4854, the ``Regulatory Certainty Act 
of 2014,'' to clarify when the Administrator of the EPA has the 
authority to restrict or deny the use of a particular disposal 
site under section 404 of the CWA.
    On July l6, 2014, the Committee on Transportation and 
Infrastructure met in open session to consider H.R. 4854, and 
ordered the bill reported favorably to the House by a roll call 
vote with a quorum present. The vote was 33 yeas to 22 nays.
    Representative Tim Bishop offered an amendment in 
Committee. The amendment would extend the time the EPA has to 
veto a section 404 permit from not fewer than 30 consecutive 
days to 365 consecutive days or such shorter period as the EPA 
determines is sufficient to conduct a review of a proposed 
disposal site. The amendment was defeated by voice vote with a 
quorum present. Representative Garamendi also offered an 
amendment in Committee. The amendment would retain authority in 
EPA to veto a disposal site if substantial new evidence is 
provided that indicates that the discharge of materials into 
the disposal site is having an unacceptable adverse effect on 
municipal water supplies, shellfish beds, fishery areas, 
wildlife, or recreational areas. The amendment was defeated by 
a roll call vote with a quorum present. The vote was 31 nays to 
24 yeas.

                            Committee Votes

    Clause 3(b) of rule XIII of the Rules of the House of 
Representatives requires each committee report to include the 
total number of votes cast for and against on each record vote 
on a motion to report and on any amendment offered to the 
measure or matter, and the names of those members voting for 
and against. During consideration of H.R. 4854, two record 
votes were taken.
    The first record vote was taken on an amendment offered in 
Committee by Representative Garamendi. The Committee disposed 
of this amendment by record vote as follows:

    The other record vote was taken on reporting the bill to 
the House with a favorable recommendation. The bill was 
reported to the House with a favorable recommendation after a 
record vote which was disposed of as follows:

                      Committee Oversight Findings

    With respect to the requirements of clause 3(c)(1) of rule 
XIII of the Rules of the House of Representatives, the 
Committee's oversight findings and recommendations are 
reflected in this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives does not apply where a cost estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974 has been timely submitted prior to the filing of the 
report and is included in the report. Such a cost estimate is 
included in this report.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the enclosed cost estimate for H.R. 4854 from the 
Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, September 5, 2014.
Hon. Bill Shuster,
Chairman, Committee on Transportation and Infrastructure, House of 
        Representatives, Washington DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 4854, the 
Regulatory Certainty Act of 2014.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

 H.R. 4854--Regulatory Certainty Act of 2014

    Section 404 of the Clean Water Act (CWA) established a 
program to regulate the discharge of dredged or fill material 
(for example, rock, sand, soil, clay, plastics, construction 
debris, wood chips, or waste from mining or other excavation 
activities) into the nation's waters and wetlands. Proposed 
activities that could result in such discharges are regulated 
through a permit and review process wherein the U.S. Army Corps 
of Engineers (Corps) is responsible for making permitting 
decisions. The Environmental Protection Agency (EPA), under 
section 404(c) of the CWA, has the authority to restrict, 
prohibit, deny, or withdraw areas specified in permits before 
or after the permits are issued by the Corps.
    H.R. 4854 would amend the CWA to restrict the time during 
which EPA may modify those permits. Specifically, H.R. 4854 
would require the Corps to issue a notice to EPA that they have 
completed all procedures for processing an application for a 
permit; EPA would then have 30 days to revoke or modify the 
permit.
    Under current law, EPA seldom modifies or revokes permits 
issued by the Corps--since 1972 EPA has used this authority 13 
times. Based on information from EPA, CBO expects that a 
shortened review period as proposed by this legislation would 
probably not significantly reduce EPA's expenses to review 
permits. Under the bill, EPA would retain its authorities under 
section 404(c) of the CWA during the 30-day period following 
processing of a permit application by the Corps. CBO expects 
that, for projects posing the most concern for EPA, it is 
likely that EPA would incur permit review costs whether or not 
H.R. 4854 is enacted.
    Pay-as-you-go procedures do not apply to H.R. 4854 because 
enacting the bill would not affect direct spending or revenues.
    H.R. 4854 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
performance goal and objective of this legislation is to 
provide that the Administrator of the EPA does not have the 
authority to disapprove a permit before the Corps has completed 
processing a CWA section 404 permit or after it has been issued 
by the Corps.

                          Advisory of Earmarks

    Pursuant to clause 9 of rule XXI of the Rules of the House 
of Representatives, the Committee is required to include a list 
of congressional earmarks, limited tax benefits, or limited 
tariff benefits as defined in clause 9(e), 9(f), and 9(g) of 
rule XXI of the Rules of the House of Representatives. No 
provision in the bill includes an earmark, limited tax benefit, 
or limited tariff benefit under clause 9(e), 9(f), or 9(g) of 
rule XXI.

                    Duplication of Federal Programs

    Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013), 
the Committee finds that no provision of H.R. 4854 establishes 
or reauthorizes a program of the federal government known to be 
duplicative of another federal program, a program that was 
included in any report from the Government Accountability 
Office to Congress pursuant to section 21 of Public Law 111-
139, or a program related to a program identified in the most 
recent Catalog of Federal Domestic Assistance.

                   Disclosure of Directed Rulemakings

    Pursuant to section 3(k) of H. Res. 5, 113th Cong. (2013), 
the Committee estimates that enacting H.R. 4854 does not 
specifically direct the completion of any specific rulemakings 
within the meaning of section 551 of title 5, United States 
Code.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act (P.L. 104-4).

                        Preemption Clarification

    Section 423 of the Congressional Budget Act of 1974 
requires the report of any Committee on a bill or joint 
resolution to include a statement on the extent to which the 
bill or joint resolution is intended to preempt state, local, 
or tribal law. The Committee states that H.R. 4854 does not 
preempt any state, local, or tribal law.

                      Advisory Committee Statement

    No advisory committees within the meaning of section 5(b) 
of the Federal Advisory Committee Act are created by this 
legislation.

                Applicability to the Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (P.L. 104-1).

               Section-by-Section Analysis of Legislation

Section 1. Short title

    Section 1 of H.R. 4854 designates the title of the bill as 
the ``Regulatory Certainty Act of 2014.''

Section 2. Permits for dredged or fill material

    Section 2 of the bill amends section 404(c) of the CWA to 
clarify when the EPA has the authority to restrict or deny the 
use of a particular dredge or fill disposal site under section 
404 of the Act.
    The period during which the EPA may prohibit the 
specification (including the withdrawal of specification) of 
any defined area as a disposal site, or deny or restrict the 
use of any defined area for specification (including the 
withdrawal of specification) as a disposal site, is limited to 
the time period that (i) begins on the date that the Corps 
provides notice to the EPA that the Corps has completed all 
procedures for processing an application for a section 404 
permit relating to the specification and is ready to determine, 
in accordance with the record and applicable regulations, 
whether the permit should be issued; and (ii) ends on the date 
that the Corps issues the permit. Under the bill, the EPA does 
not have the authority to disapprove or revoke a permit under 
CWA section 404(c) before the Corps has completed its review of 
a section 404 permit application or after the Corps has issued 
the section 404 permit.
    The bill begins the period during which the EPA can 
``veto'' a project when the Corps has completed processing a 
section 404 permit application and is ready to make a permit 
issuance determination, to ensure that a project applicant has 
had a reasonable opportunity to apply for a permit. Starting 
the clock at this point would help to ensure that the EPA bases 
its decision of whether to approve of or ``veto'' a permit on a 
complete, project-specific administrative record (including the 
environmental review) for the project in question. By ending 
the period during which the EPA can ``veto'' a project when the 
Corps issues a permit, the bill aims to ensure that a project 
applicant can rely on the finality of the issued permit.
    To help ensure that the EPA is sufficiently knowledgeable 
of a project and has adequate time to make a decision of 
whether to approve of or ``veto'' a section 404 permit, the 
bill requires the Corps to give the EPA notice that the Corps 
has completed all procedures for processing a permit 
application and is ready to determine whether the permit should 
be issued. The Corps also is required to ensure that the period 
the EPA has to make a permit ``veto'' decision consists of not 
fewer than 30 consecutive days.
    The Corps has the discretion to provide the EPA with more 
time than the 30 consecutive day minimum provided in the bill. 
The bill does not mandate a longer minimum period of time in 
order to minimize delays in issuing section 404 permits.
    The bill does not alter the authority of the Corps to issue 
a section 404 permit, or to modify, suspend, or revoke a 
section 404 permit should it find a violation of the permit. 
The bill also does not change the requirements that the EPA 
must satisfy in order to exercise its ``veto'' authority under 
CWA section 404(c).

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
H.R. 4854, as reported, are shown as follows:

                  FEDERAL WATER POLLUTION CONTROL ACT

           *       *       *       *       *       *       *
TITLE IV--PERMITS AND LICENSES

           *       *       *       *       *       *       *

                  permits for dredged or fill material

  Sec. 404. (a) * * *

           *       *       *       *       *       *       *

  [(c)] (c)(1) The Administrator is authorized to prohibit the 
specification (including the withdrawal of specification) of 
any defined area as a disposal site, and he is authorized to 
deny or restrict the use of any defined area for specification 
(including the withdrawal of specification) as a disposal site, 
whenever he determines, during the period described in 
paragraph (2) and after notice and opportunity for public 
hearings, that the discharge of such materials into such area 
will have an unacceptable adverse effect on municipal water 
supplies, shellfish beds and fishery areas (including spawning 
and breeding areas), wildlife, or recreational areas. Before 
making such determination, the Administrator shall consult with 
the Secretary. The Administrator shall set forth in writing and 
make public his findings and his reasons for making any 
determination under this subsection.
    (2)(A) The period during which the Administrator may 
prohibit the specification (including the withdrawal of 
specification) of any defined area as a disposal site, or deny 
or restrict the use of any defined area for specification 
(including the withdrawal of specification) as a disposal site, 
under paragraph (1) shall--
          (i) begin on the date that the Secretary provides 
        notice to the Administrator that the Secretary has 
        completed all procedures for processing an application 
        for a permit under this section relating to the 
        specification and is ready to determine, in accordance 
        with the record and applicable regulations, whether the 
        permit should be issued; and
          (ii) end on the date that the Secretary issues the 
        permit.
    (B) The Secretary shall ensure that the period described in 
subparagraph (A) consists of not fewer than 30 consecutive 
days.
    (C) The Secretary may issue a permit under this section 
only after the Secretary provides notice to the Administrator 
in accordance with this paragraph.

           *       *       *       *       *       *       *

                            DISSENTING VIEWS

    I recognize the difference of opinion among Members of 
Congress on the activities of Executive branch to protect 
public health and the environment. Yet, I remain troubled by 
the all-too-common tone taken by the Republican majority in 
carrying out its oversight activities of the current 
administration, especially as it pertains to implementation of 
the Clean Water Act.
    Too often, this Republican majority has elevated the 
rhetoric surrounding controversial issues over the reality. 
Take the record surrounding H.R. 4854 as an example.
    On the day before the Committee markup of H.R. 4854, the 
Subcommittee on Water Resources and Environment held a hearing, 
entitled ``EPA's Expanded Interpretation of its Permit 
Authority Veto under the Clean Water Act''--as though the U.S. 
Environmental Protection Agency has created some new authority 
by its actions where none previously existed. Similarly, 
throughout this Committee report to accompany H.R. 4854, there 
are references to EPA's ``first-ever `preemptive' veto,'' as 
well as suggestions that EPA has arbitrarily or capriciously 
exercised its 404(c) authority.\1\
---------------------------------------------------------------------------
    \1\On September 30, 2014, the United States District Court for the 
District of Columbia ruled that EPA's Final Determination of the U.S. 
Environmental Protection Agency Pursuant to Sec. 404(c) of the Clean 
Water Act Concerning Spruce No. 1 Mine, Logan County, West Virginia was 
``reasonable, supported by the record, and based on considerations 
within the agency's purview.'' See Mingo Logan Coal Company, Inc v. 
U.S. EPA, U.S. Dist. Court. Dist. of Columbia (2014) (Civil Action No. 
10-0541 (ABJ)).
---------------------------------------------------------------------------
    As the former-Senator of New York, Daniel Patrick Moynihan, 
once said, ``Everyone is entitled to his own opinion, but not 
his own facts.''
    Therefore, it is important that we evaluate H.R. 4854 we 
all use the same set of facts to understand this legislation in 
its historical context.
    Here are the facts.
    Fact number 1--Congress enacted the Clean Water Act in 
1972, and provided the U.S. Army Corps of Engineers and EPA 
complimentary roles in the implementation of the Federal 
section 404 permit authority over discharges of dredged or fill 
material at specified sites in waters of the United States, 
including the adoption of EPA's 404(c) oversight 
responsibility.
    Fact number 2--Since enactment of the Clean Water Act, the 
Corps has processed, on average, 60,000 section 404 permit 
actions per year--resulting in over 2.5 million approved permit 
actions since 1972. During that same period, EPA has exercised 
its section 404(c) authority a total of 13 times. That is 13 
permits in 42 years.
    Fact number 3--Of the 13 times EPA has previously exercised 
its 404(c) authority, three of these 404(c) actions were taken 
after a Corps of Engineers permits were already issued--two 
under Republican administrations, and once under a Democratic 
administration. An additional 2 404(c) actions were taken in 
the time period before a Clean Water Act permit was issued by 
the Corps--both under a Republican administration.
    I am enclosing, as part of these dissenting views, the 
written testimony of Professor Patrick Parenteau, a law 
professor who testified at the July 15, 2014 hearing on this 
issue. This testimony summarizes the history and use of the 
404(c) authority by both Republican and Democratic 
administrations over the decades.
    As history has shown, the EPA under the leadership of both 
Republican and Democratic administrations have used its 
Congressionally-authorized oversight authority over the section 
404 program in a limited, and relatively-consistent manner. To 
characterize the agency's recent actions related to section 
404(c) as an ``expanded interpretation'' is simply not 
supported by the facts.
    It is fair for Members of Congress to have a difference of 
opinion on how the Corps and EPA have carried out their Clean 
Water Act responsibilities. However, when we use that 
difference of opinion to mischaracterize or worse, to demonize, 
the actions of these agencies, I believe we fail to uphold our 
larger Congressional responsibilities.
    While I recognize that those who projects and industries 
may have been directly affected by these actions may have a 
different view, I believe that these groups will have a 
difficult time in arguing that the Federal agencies have 
``abused'' this authority over the years.
    In my view, EPA seems to have exercised its 404(c) 
authority with restraint, acting only when the activities would 
have an ``unacceptable adverse effect'' on the local 
environment--the test that Congress established for the 
agencies back in 1972. I do not believe a legitimate case has 
been made to warrant the changes called for in H.R. 4854.
    Accordingly, I respectfully oppose passage of H.R. 4854.

                                        Tim Bishop,
                                            Ranking Member,
                   Subcommittee on Water Resources and Environment.
```