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[House Report 113-568]
[From the U.S. Government Publishing Office]

113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-568

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

 
WATERS OF THE UNITED STATES REGULATORY OVERREACH PROTECTION ACT OF 2014

                                _______
                                

 July 31, 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. 5078]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 5078) to preserve existing rights 
and responsibilities with respect to waters of the United 
States, and for other purposes, having considered the same, 
report favorably thereon without amendment and recommend that 
the bill do pass.

                                CONTENTS

                                                                   Page
Purpose of Legislation...........................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................    11
Legislative History and Consideration............................    11
Committee Votes..................................................    11
Committee Oversight Findings.....................................    11
New Budget Authority and Tax Expenditures........................    11
Congressional Budget Office Cost Estimate........................    12
Performance Goals and Objectives.................................    12
Advisory of Earmarks.............................................    12
Duplication of Federal Programs..................................    12
Disclosure of Directed Rulemakings...............................    12
Federal Mandates Statement.......................................    12
Preemption Clarification.........................................    13
Advisory Committee Statement.....................................    13
Applicability to the Legislative Branch..........................    13
Section-by-Section Analysis of the Legislation...................    13
Changes in Existing Law Made by the Bill, as Reported............    17
Dissenting Views.................................................    18

                       PURPOSE OF THE LEGISLATION

    The purpose of H.R. 5078 is to preserve existing rights and 
responsibilities under the Federal Water Pollution Control Act 
with respect to Waters of the United States by prohibiting the 
U.S. Environmental Protection Agency (EPA) and the U.S. Army 
Corps of Engineers (Corps) (collectively, the ``Agencies'') 
from developing, finalizing, adopting, implementing, applying, 
administering, or enforcing a proposed rule or guidance the 
Agencies have developed regarding the scope of federal 
jurisdiction under the Federal Water Pollution Control Act. The 
bill also requires the Agencies to engage in a federalism 
consultation with state and local officials to formulate 
recommendations for a regulatory proposal that would identify 
the scope of waters covered under the Federal Water Pollution 
Control Act and the scope of waters not covered under the Act.

                BACKGROUND AND NEED FOR THE LEGISLATION

Background

    Congress enacted the Federal Water Pollution Control Act 
Amendments of 1972 (commonly known as the ``Clean Water Act'' 
or ``CWA'') with the objective to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters.'' (See CWA 101(a); 33 U.S.C. Sec. 1251.) In enacting 
the CWA, it was the ``policy of the Congress to recognize, 
preserve, and protect the primary responsibilities and rights 
of states to prevent, reduce, and eliminate pollution, to plan 
the development and use (including restoration, preservation, 
and enhancement) of land and water resources, and to consult 
with the [EPA] Administrator in the exercise of his authority 
under this Act.'' (See id. at Sec. 101(b).)
    The Clean Water Act prohibits the discharge of any 
pollutant by any person, unless in compliance with one of the 
enumerated permitting provisions in the Act. The two permitting 
authorities in the CWA are section 402 (the National Pollutant 
Discharge Elimination System, or ``NPDES''), for discharges of 
pollutants from point sources, and section 404, for discharges 
of dredged or fill material. While the goals of the Clean Water 
Act speak to the restoration and maintenance of the ``Nation's 
waters,'' both section 402 and 404 govern discharges to 
``navigable waters,'' which are defined in section 502(7) of 
the CWA as ``the waters of the United States, including the 
territorial seas.''
    EPA has the basic responsibility for implementing the CWA, 
and is responsible for implementing the NPDES program under 
section 402. Under the NPDES program, it is unlawful for a 
point source to discharge pollutants into ``navigable waters,'' 
unless the discharge is authorized by and in compliance with an 
NPDES permit issued by EPA (or by a state, under a comparable 
approved state program).
    EPA shares responsibility with the Corps for implementing 
section 404 of the CWA. Under this permitting program, it is 
unlawful to discharge dredged or fill materials into 
``navigable waters,'' unless the discharge is authorized by and 
in compliance with a dredge or fill (section 404) permit issued 
by the Corps (or by a state, under a comparable approved state 
program).
    In enacting the CWA, Congress intended the states and EPA 
to implement the Act as a federal-state partnership, where 
these parties act as co-regulators. The CWA established a 
system where EPA and the Corps provide a federal regulatory 
floor, from which states can receive approval from EPA to 
administer state water quality programs pursuant to state law, 
at equivalent or potentially more stringent levels, in lieu of 
federal implementation. Currently, 46 states have approved-
NPDES programs under section 402 of the Act, and two states 
have approved-dredge or fill programs under section 404 of the 
Act.

Historical administrative interpretations of federal jurisdiction under 
        the Clean Water Act

    The Clean Water Act claims federal jurisdiction over the 
Nation's ``navigable waters,'' which are defined in the Act as 
``the waters of the United States, including the territorial 
seas.'' (CWA Sec. 502(7); 33 U.S.C. Sec. 1362.)
    Neither the statute nor the legislative history on the 
definition of ``navigable waters'' in the CWA definitively 
describes the outer reaches of jurisdiction under the Act. As a 
result, EPA and the Corps have promulgated over the years 
several sets of rules interpreting the agencies' jurisdiction 
over ``waters of the United States'' and the corresponding 
scope of CWA authority. The latest amendments to those rules 
were promulgated in 1993.
    Because the use of the term ``navigable waters,'' and 
hence, ``waters of the United States,'' affects both sections 
402 and 404 of the CWA, as well as provisions related to the 
discharge of oil or hazardous substances, the existing 
regulations defining the term ``waters of the United States'' 
are found in several sections of the Code of Federal 
Regulations.
    The current regulatory definition of the term ``waters of 
the United States'' is:

``Waters of the United States'' or ``waters of the U.S.'' 
means:

    (a) All waters which are currently used, were used in the 
past, or may be susceptible to use in interstate or foreign 
commerce, including all waters which are subject to the ebb and 
flow of the tide;
    (b) All interstate waters, including interstate 
``wetlands;''
    (c) All other waters such as intrastate lakes, rivers, 
streams (including intermittent streams), mudflats, sandflats, 
``wetlands,'' sloughs, prairie potholes, wet meadows, playa 
lakes, or natural ponds the use, degradation, or destruction of 
which would affect or could affect interstate or foreign 
commerce including any such waters:
          (1) Which are or could be used by interstate or 
        foreign travelers for recreational or other purposes;
          (2) From which fish or shellfish are or could be 
        taken and sold in interstate or foreign commerce; or
          (3) Which are used or could be used for industrial 
        purposes by industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as waters 
of the United States under this definition;
    (e) Tributaries of waters identified in paragraphs (a) 
through (d) of this definition;
    (f) The territorial sea; and
    (g) ``Wetlands'' adjacent to waters (other than waters that 
are themselves wetlands) identified in paragraphs (a) through 
(f) of this definition.
    Waste treatment systems, including treatment ponds or 
lagoons designed to meet the requirements of CWA (other than 
cooling ponds as defined in 40 CFR 423.11(m) which also meet 
the criteria of this definition) are not waters of the United 
States. This exclusion applies only to manmade bodies of water 
which neither were originally created in waters of the United 
States (such as disposal area in wetlands) nor resulted from 
the impoundment of waters of the United States.
    Waters of the United States do not include prior converted 
cropland. Notwithstanding the determination of an area's status 
as prior converted cropland by any other federal agency, for 
the purposes of the Clean Water Act, the final authority 
regarding Clean Water Act jurisdiction remains with EPA.
    (See, e.g., 33 C.F.R. Sec. 328.3; 40 CFR 122.2; 40 C.F.R. 
Sec. 230.3 for the definition in the agencies' regulations.)

Supreme Court cases on Clean Water Act jurisdiction

    There has been a substantial amount of litigation in the 
federal courts on the scope of CWA jurisdiction over the past 
four decades, including three U.S. Supreme Court cases:
     United States v. Riverside Bayview Homes Inc., 474 
U.S. 121 (1985) (``Riverside Bayview'').
     Solid Waste Association of Northern Cook County v. 
United States Corps of Engineers, 531 U.S. 159 (2001) (also 
known as ``SWANCC'').
     The combined cases of Rapanos v. United States and 
Carabell v. U.S. Army Corps of Engineers, 547 U.S. 715 (2006) 
(collectively referred to as ``Rapanos'').
    The Supreme Court, in the Riverside Bayview case, upheld 
the Corps' jurisdiction over wetlands adjacent to 
jurisdictional waters, and held that such wetlands were 
``waters of the United States'' within the meaning of the Clean 
Water Act.
    However, in both the SWANCC and Rapanos case decisions, the 
Supreme Court began to articulate limits to federal 
jurisdiction under the CWA regarding the scope of what are 
considered ``waters of the United States.'' Some view these 
cases as signaling a narrowing of the interpreted scope of CWA 
jurisdiction over ``waters of the United States'' because the 
Supreme Court no longer would allow the Agencies to assert very 
broad jurisdiction over most all waters around the nation.
    In the SWANCC case, the Supreme Court rejected the Corps' 
assertion of authority to regulate intrastate, isolated waters, 
including wetlands (here, an abandoned sand and gravel pit with 
excavation trenches that had evolved into seasonal and 
permanent ponds) based solely on the presence of migratory 
birds. The Court held that the Corps' interpretation of its 
jurisdictional regulations was not consistent with the CWA and 
raised serious constitutional questions regarding the scope of 
CWA jurisdiction under the Commerce Clause.
    In the Rapanos case, the Supreme Court overturned the 
expansive definition of jurisdiction over wetlands claimed by 
the Agencies, although the Court was unable to agree on the 
proper test for determining the extent to which federal 
jurisdiction applies to wetlands. The Court issued a 4-1-4 
opinion that did not produce a clear, legal standard on 
determining jurisdiction under the CWA. Instead, the Rapanos 
decision produced three distinct opinions on the appropriate 
scope of federal authorities under the CWA: (1) the plurality 
opinion, written by Justice Scalia, provided a ``relatively 
permanent/flowing waters'' test, supported by four justices; 
(2) Justice Kennedy's opinion, which proposed a ``significant 
nexus'' test, and (3) Justice Stevens' dissenting opinion, 
supported by the remaining justices, which advocated for 
maintenance of existing EPA and Corps authority over waters and 
wetlands.

Administrative interpretations of the Supreme Court cases

    Following the SWANCC and Rapanos decisions, EPA and the 
Corps issued several guidance documents interpreting how the 
Agencies would implement the Supreme Court decisions.
    In January 2001, immediately following the Supreme Court's 
decision in SWANCC, the Agencies published a guidance 
memorandum that outlined the agencies' legal analysis of the 
impacts of the SWANCC decision. (See Supreme Court Ruling 
Concerning CWA jurisdiction over Isolated Waters (Jan. 19, 
2001).)
    In January 2003, the Agencies published a revised interim 
guidance memorandum that amended the agencies' views on the 
state of the law after the SWANCC case as to what waterbodies 
are subject to federal jurisdiction under the CWA. (See 68 Fed. 
Reg. 1991 (Jan. 15, 2003).)
    Subsequent to the Supreme Court decision in Rapanos, the 
Agencies developed interpretative guidance on how to implement 
the Rapanos decision. In June 2007, the Agencies issued a 
preliminary guidance memorandum aimed at answering questions 
regarding CWA regulatory authority over wetlands and streams 
raised by the Supreme Court in Rapanos. (See Joint Legal 
Memorandum, Clean Water Act Jurisdiction Following the U.S. 
Supreme Court's Decision in Rapanos v. United States & Carabell 
v. United States (June 5, 2007).)
    Then in December 2008, the Agencies issued an updated 
guidance memorandum on the terms and procedures to be used to 
determine the extent of federal jurisdiction over waters, 
building upon the previous guidance issued in June 2007. (See 
Updated Joint Legal Memorandum, Clean Water Act Jurisdiction 
Following the U.S. Supreme Court's Decision in Rapanos v. 
United States & Carabell v. United States (Dec. 2, 2008).)
    The December 2008 guidance provided that CWA jurisdiction 
over navigable waters would be asserted if such waters meet 
either the Scalia (``relatively permanent waters'') or Kennedy 
(``significant nexus'') tests. According to the 2008 guidance, 
individual permit applications must, on a case-by-case basis, 
undergo a jurisdictional determination, based on either the 
Scalia or Kennedy tests.
    The 2003 and 2008 guidance remains in effect today.

The Agencies' proposed revised Clean Water Act guidance

    In 2010, the Agencies drafted new joint guidance to 
describe their latest views of federal regulatory jurisdiction 
over U.S. waters under the CWA and to replace the Agencies' 
2003 and 2008 guidance.
    The proposed CWA jurisdiction guidance underwent several 
months of interagency review before being released in May 2011, 
when the Agencies published, in the Federal Register, a joint 
notice announcing the availability of the guidance. (76 Fed. 
Reg. 24,479 (May 2, 2011) (notice entitled EPA and Army Corps 
of Engineers Guidance Regarding Identification of Waters 
Protected by the Clean Water Act).) The proposed guidance 
purported to describe how the Agencies would identify waters 
subject to jurisdiction under the CWA and implement the Supreme 
Court's decisions in SWANCC and Rapanos concerning the extent 
of waters covered by the CWA. The Agencies noted, among other 
things, in the proposed guidance that ``the extent of waters 
over which the agencies assert jurisdiction under the CWA will 
increase compared to the extent of waters over which 
jurisdiction has been asserted under existing guidance.'' 
(Proposed Guidance, at p.3.)
    Members of Congress, stakeholders, and states submitted 
comments to the Agencies, expressing, among other things, 
concern that the proposed guidance misconstrues the Supreme 
Court's cases, is inconsistent with the Agencies' regulations, 
and expands federal jurisdiction under the CWA; that the 
proposed guidance amounts to being a de facto rule because it 
effectively amends existing regulations that were at issue in 
the Rapanos and SWANCC cases by describing new conditions under 
which the Agencies may assert jurisdiction; and the 
Administrative Procedure Act (5 U.S.C. 500 et seq.) mandates 
that, when the Agencies revise preexisting regulations or make 
specific, binding regulatory pronouncements, those 
pronouncements and rules must be promulgated pursuant to formal 
notice-and-comment rulemaking; that the Agencies are using 
interim or final guidance as a substitute for regulation or to 
change or expand the effects of regulation, and the Agencies 
should, instead, proceed to formal rulemaking and not issue or 
apply the proposed guidance in the interim. (See generally, 
Comments Submitted to the Agencies, contained in EPA Docket 
Folder, Draft Guidance on Identifying Waters Protected by the 
Clean Water Act, Docket ID No. EPA-HQ-OW-2011-0409); see also 
Letter, Comments of the Association of State and Interstate 
Water Pollution Control Administrators (ASIWPCA), to Nancy K. 
Stoner, Acting Assistant Administrator for Water and Jo Ellen 
Darcy, Assistant Secretary of the Army (Civil Works), Re: EPA 
and Army Corps of Engineers Draft Guidance on Identifying 
Waters Protected by the Clean Water Act, Docket ID No. EPA-HQ-
OW-2011-0409 (July 29, 2011); Environmental Council of the 
States (ECOS), Policy Resolution Number 11-1, Objection to U.S. 
Environmental Protection Agency's Imposition of Interim 
Guidance, Interim Rules, Draft Policy and Reinterpretation 
Policy (approved Mar. 30, 2011); ECOS, Policy Resolution Number 
11-8, On the Use of Guidance (approved Sept. 26, 2011).)
    In February 2012, the Agencies prepared and sent to the 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget (OMB/OIRA) for regulatory review under 
Executive Order 12866 revised proposed CWA jurisdiction 
guidance. (Guidance on Identifying Waters Protected By the 
Clean Water Act (dated Feb. 17, 2012) (referred to as ``Clean 
Water Protection Guidance,'' Regulatory Identifier Number (RIN) 
2040-ZA11, received Feb. 21, 2012).) The revised guidance was 
largely unchanged from the proposed version.
    In September, 2013, the Corps and EPA announced their 
withdrawal, from OMB/OIRA, of the proposed guidance before the 
guidance was finalized. At the same time, the Agencies sent to 
OMB/OIRA, for regulatory review, a draft rule entitled 
Definition of `Waters of the United States' Under the Clean 
Water Act (RIN: 2040-AF30). The draft rule purported to 
``clarify'' which waterbodies are subject to federal 
jurisdiction under the CWA.

The Agencies' proposed revised Clean Water Act jurisdiction rule

    In April 2014, the Agencies published in the Federal 
Register a proposed rule that would revise the regulatory 
definition of the term ``waters of the United States'' under 
the CWA. (See 79 Fed. Reg. 22188 (Apr. 21, 2014) (Definition of 
`Waters of the United States' Under the Clean Water Act).) The 
proposed rule purports to ``clarify'' which waterbodies are 
subject to federal jurisdiction under the CWA. The rulemaking 
notice provided a 91 day public comment period on the rule, 
which the Agencies later extended an additional 91 days. (See 
79 Fed. Reg. 35712 (June 24, 2014) (Definition of `Waters of 
the United States' Under the Clean Water Act; Extension of 
Comment Period).)
    The proposed rule would redefine the term ``waters of the 
United States'' in the regulations for all CWA programs, and in 
particular would cover sections 303 (water quality standards), 
311 (oil and hazardous substances releases), 401 (state water 
quality certifications), 402 (NPDES permitting and stormwater), 
and 404 (wetlands permitting).
    The proposed rule would redefine the term ``waters of the 
United States'' as follows:

``Waters of the United States'' or ``waters of the U.S.'' 
means:

    (a) For purposes of all sections of the Clean Water Act, 33 
U.S.C. 1251 et seq. and its implementing regulations, subject 
to the exclusions in paragraph (b) of this definition, the term 
``waters of the United States'' means:
          (1) All waters which are currently used, were used in 
        the past, or may be susceptible to use in interstate or 
        foreign commerce, including all waters which are 
        subject to the ebb and flow of the tide;
          (2) All interstate waters, including interstate 
        wetlands;
          (3) The territorial seas;
          (4) All impoundments of waters identified in 
        paragraphs (a)(1) through (3) and (5) of this 
        definition;
          (5) All tributaries of waters identified in 
        paragraphs (a)(1) through (4) of this definition;
          (6) All waters, including wetlands, adjacent to a 
        water identified in paragraphs (a)(1) through (5) of 
        this definition; and
          (7) On a case-specific basis, other waters, including 
        wetlands, provided that those waters alone, or in 
        combination with other similarly situated waters, 
        including wetlands, located in the same region, have a 
        significant nexus to a water identified in paragraphs 
        (a)(1) through (3) of this definition.
    (b) The following are not ``waters of the United States'' 
notwithstanding whether they meet the terms of paragraphs 
(a)(1) through (7) of this definition--
          (1) Waste treatment systems, including treatment 
        ponds or lagoons, designed to meet the requirements of 
        the Clean Water Act. This exclusion applies only to 
        manmade bodies of water which neither were originally 
        created in waters of the United States (such as 
        disposal area in wetlands) nor resulted from the 
        impoundment of waters of the United States.
          (2) Prior converted cropland. Notwithstanding the 
        determination of an area's status as prior converted 
        cropland by any other federal agency, for the purposes 
        of the Clean Water Act, the final authority regarding 
        Clean Water Act jurisdiction remains with EPA.
          (3) Ditches that are excavated wholly in uplands, 
        drain only uplands, and have less than perennial flow.
          (4) Ditches that do not contribute flow, either 
        directly or through another water, to a water 
        identified in paragraphs (a)(1) through (4) of this 
        definition.
          (5) The following features:
                  (i) Artificially irrigated areas that would 
                revert to upland should application of 
                irrigation water to that area cease;
                  (ii) Artificial lakes or ponds created by 
                excavating and/or diking dry land and used 
                exclusively for such purposes as stock 
                watering, irrigation, settling basins, or rice 
                growing;
                  (iii) Artificial reflecting pools or swimming 
                pools created by excavating and/or diking dry 
                land;
                  (iv) Small ornamental waters created by 
                excavating and/or diking dry land for primarily 
                aesthetic reasons;
                  (v) Water-filled depressions created 
                incidental to construction activity;
                  (vi) Groundwater, including groundwater 
                drained through subsurface drainage systems; 
                and
                  (vii) Gullies and rills and non-wetland 
                swales.
    The proposed rule also would provide new definitions of 
certain terms used in the proposed rule, including 
``adjacent,'' ``neighboring,'' ``riparian area,'' 
``floodplain,'' ``tributary,'' ``wetlands,'' and ``significant 
nexus.''
    Stakeholders have expressed both support of and concern 
with the proposed rule.
    Those expressing support for the proposed rule have 
suggested that this effort will provide greater clarity and 
certainty in the confusing jurisdictional and regulatory 
requirements following the Supreme Court decisions, as well as 
provide a scientifically-based means for protecting headwater 
and intermittent streams, while preserving existing regulatory 
and statutory exemptions for certain activities.
    Those expressing concern with the proposed rule have 
criticized the process by which the Agencies have moved forward 
with the proposed rulemaking, as well as the substance of the 
rule itself.
    The process concerns include the sequence and timing of the 
actions that the Agencies have taken to develop the rule, which 
many believe undermine the credibility of the rule and the 
process to develop it. Among other things, stakeholders have 
expressed concern that the process prejudges the science 
underlying the rule, and state and local governments and the 
regulated community all have expressed concern that the 
Agencies have failed to consult with them in the development of 
the rule, thereby threatening to undermine the federal-state 
partnership and erode state authority under the CWA. Some have 
called for the Agencies to step back and follow a collaborative 
rulemaking process. (See, e.g., Testimony of J.D. Strong, 
Executive Director of the Oklahoma Water Resources Board, on 
behalf of the Oklahoma Water Resources Board, Western 
Governors' Association, and the Western States Water Council 
(presented at the House Committee on Transportation and 
Infrastructure, Subcommittee on Water Resources and Environment 
Hearing on ``Potential Impacts of Proposed Changes to the Clean 
Water Act Jurisdiction Rule'' (June 11, 2014) (hereinafter, 
``2014 CWA Hearing''); Testimony of Warren ``Dusty'' Williams, 
General Manager/Chief Engineer, Riverside County Flood Control 
& Water Conservation District, on behalf of the National 
Association of Counties and the National Association of Flood 
and Stormwater Management Agencies (presented at the 2014 CWA 
Hearing); Testimony of Bob Stallman, President, American Farm 
Bureau Federation (presented at the 2014 CWA Hearing).)
    Many of those expressing substantive concern with the 
proposed rule suggest the rule fails to provide reasonable 
clarity, is inconsistent with Supreme Court precedent, and 
could broaden the scope of CWA jurisdiction, thereby triggering 
greater regulatory obligations under the CWA, including permit 
obligations for discharges to waters that currently may not be 
subject to the Act. Some note that the proposed rule leaves 
many key concepts unclear, undefined, or subject to Agency 
discretion, and suggest that the vague definitions and concepts 
will not provide the intended regulatory certainty and will 
result in litigation over their proper meaning. (See, e.g., 
Testimony of J.D. Strong, Executive Director of the Oklahoma 
Water Resources Board (presented at the 2014 CWA Hearing); 
Testimony of Warren ``Dusty'' Williams, General Manager/Chief 
Engineer, Riverside County Flood Control & Water Conservation 
District, on behalf of the National Association of Counties and 
the National Association of Flood and Stormwater Management 
Agencies (presented at the 2014 CWA Hearing); Testimony of Bob 
Stallman, President, American Farm Bureau Federation (presented 
at the 2014 CWA Hearing); Testimony of Mark T. Pifher, Manager, 
Southern Delivery System, Colorado Springs Utilities, on behalf 
of the National Water Resources Association (presented at the 
2014 CWA Hearing); Testimony of Kevin Kelly, Chairman of the 
Board, National Association of Home Builders (presented at the 
2014 CWA Hearing).)

The Agencies' interpretive rule

    Along with the proposed rule, the Agencies published in the 
Federal Register a notice of availability of an interpretive 
rule on CWA section 404(f)(1)(a) exemptions for normal farming, 
silviculture, and ranching activities. (See 79 Fed. Reg. 22276 
(Apr. 21, 2014) Notice of Availability Regarding the Exemption 
From Permitting Under Section 404(f)(1)(A) of the Clean Water 
Act to Certain Agricultural Conservation Practices).) The 
statutory exemptions under CWA section 404(f)(1)(a) provide an 
exemption from Section 404 permitting requirements for normal 
farming, silviculture, and ranching practices where these 
activities are part of an ongoing farming, ranching, or 
forestry operation. (See CWA section 404(f)(1)(a); 33 U.S.C. 
Sec. 1344(f)(1)(A).)
    The interpretive rule became immediately effective and 
includes a list of 53 agricultural activities that are exempt 
from permitting requirements so long as they are conducted 
consistent with Natural Resources Conservation Service (NRCS) 
conservation practice standards. The interpretive rule has no 
effect on CWA jurisdiction, since the exemptions are not an 
exclusion from CWA jurisdiction.
    Agricultural stakeholders have expressed concerns with the 
proposed interpretive rule. For example, many are unsure 
whether this is intended to be interpretive guidance or a 
legislative rule under the Administrative Procedure Act, and 
are concerned that the Agencies made the interpretive rule 
immediately effective, without advance notice and comment. Many 
also are opposed to the requirement that, for a farmer to be 
exempt from permitting requirements, the farmer must conduct an 
agricultural conservation practice consistent with the listed 
NRCS conservation practice standards, a requirement, they point 
out, that is nowhere found in the law. They are concerned that 
the interpretive rule, in effect, limits a farmer's ability to 
use the agricultural exemptions by introducing compliance with 
NRCS standards as a qualification for their use. (See, e.g., 
Testimony of Bob Stallman, President, American Farm Bureau 
Federation (presented at the 2014 CWA Hearing).)

Legislation to preserve the rights and responsibilities with respect to 
        waters of the U.S.

    In light of the concerns that many stakeholders have 
expressed regarding the proposed revised CWA guidance, the 
proposed revised CWA jurisdiction rule, and the interpretive 
rule, Representative Southerland, along with House Committee on 
Transportation and Infrastructure Chairman Shuster, Water 
Resources and Environment Subcommittee Chairman Gibbs, House 
Committee on Agriculture Chairman Lucas, House Committee on 
Transportation and Infrastructure Ranking Member Rahall, House 
Committee on Agriculture Ranking Member Peterson, and 
Representatives Capito, Crawford, Matheson, Schrader, Ribble, 
Enyart, Mullin, and Jolly, introduced H.R. 5078 on July 11, 
2014.
    The sponsors of H.R. 5078 introduced this legislation to 
prohibit the Agencies from developing, finalizing, adopting, 
implementing, applying, administering, or enforcing the 
proposed revised CWA guidance, the proposed revised CWA 
jurisdiction rule, or the interpretive rule, and to require the 
Agencies to engage in a federalism consultation with state and 
local officials to formulate recommendations for a regulatory 
proposal that would identify the scope of waters covered under 
the CWA and the scope of waters not covered under the Act. 
Without this legislation, Congress, the states, and other 
stakeholders will not have any reasonable assurance that the 
Agencies will take into consideration, in a meaningful way, the 
substantive and process concerns expressed by stakeholders 
about the Agencies' regulatory actions pertaining to redefining 
the scope of jurisdiction under the CWA or the exemption for 
agricultural conservation practices.

                                HEARINGS

    On June 11, 2014, the Subcommittee on Water Resources and 
Environment held a hearing to receive testimony from the Deputy 
Administrator of the EPA, the Assistant Secretary of the Army 
for Civil Works, and representatives of state and local 
government and private sector stakeholders on the joint EPA and 
Corps proposed rulemaking to redefine the regulatory term 
``waters of the United States'' under the Clean Water Act.

                 LEGISLATIVE HISTORY AND CONSIDERATION

    On July 11, 2014, Representative Steve Southerland 
introduced H.R. 5078, the ``Waters of the United States 
Regulatory Overreach Protection Act of 2014.'' On July 16, 
2012, the Committee on Transportation and Infrastructure met in 
open session to consider H.R. 5078, and ordered the bill 
reported favorably to the House by voice vote with a quorum 
present.
    Delegate Eleanor Holmes Norton offered an amendment in 
Committee. The amendment would exempt the bill's prohibition on 
finalizing or using the proposed rule or guidance from applying 
to any waters used for or affecting certain stated purposes. 
The amendment was defeated by voice vote with a quorum present. 
Representative Maloney also offered an amendment in Committee. 
The amendment would strike the prohibition on finalizing or 
using the proposed rule and strike the requirement that EPA 
report on the consensus reached with state and local 
governments or report on why a consensus was not reached. The 
amendment was defeated by voice vote with a quorum present.

                            COMMITTEE VOTES

    Clause 3(b) of rule XIII of the House of Representatives 
requires each committee report to include the total number of 
votes cast for and against on each recorded vote on a motion to 
report and on any amendment offered to the measure or matter, 
and the names of those members voting for and against. During 
consideration of H.R. 5078, no recorded votes were taken.

                      COMMITTEE OVERSIGHT FINDINGS

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

               NEW BUDGET AUTHORITY AND TAX EXPENDITURES

    Pursuant to clause 3(c)(2) of rule XIII of the Rules of the 
House of Representatives, the Committee estimates that enacting 
this legislation would have no significant impact on the 
federal budget. The Committee does not have the Congressional 
Budget Office cost estimate which is being prepared by the 
Director of the Congressional Budget Office pursuant to section 
402 of the Congressional Budget Act of 1974, and will include 
an estimate of new budget authority, entitlement authority, and 
tax expenditures or revenues resulting from H.R. 5078. As soon 
as it is available, the Committee will provide the cost 
estimate in a supplemental 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 
estimates that enacting this legislation would have no 
significant impact on the federal budget. The Committee does 
not have the cost estimate for H.R. 5078 from the Director of 
the Congressional Budget Office and will provide it in a 
supplemental report as soon as it is available.

                    PERFORMANCE GOALS AND OBJECTIVES

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
performance goals and objectives of this legislation are to 
reduce regulatory burdens that would be caused by the Agencies 
finalizing, adopting, implementing, administering, or enforcing 
a proposed rule or guidance to redefine the scope of federal 
regulatory jurisdiction under the Clean Water Act, and to 
direct the Agencies to develop consensus recommendations for a 
regulatory proposal that would identify the scope of waters 
covered under the CWA and the scope of waters not covered under 
the Act by requiring the Agencies to engage in a federalism 
consultation with state and local officials.

                          ADVISORY OF EARMARKS

    In compliance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 5078 does not contain any 
Congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                    DUPLICATION OF FEDERAL PROGRAMS

    Pursuant to section 3(j) of H. Res. 5, 113th Cong. (2013), 
the Committee finds that no provision of H.R. 5078 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. 5078 does not 
specifically direct the completion of any specific rule makings 
within the meaning of section 551 of title 5, United States 
Code.

                       FEDERAL MANDATES STATEMENT

    The Committee estimates that enacting this legislation 
would have no significant impact on the federal budget. The 
Committee does not have the cost estimate for H.R. 5078 from 
the Director of the Congressional Budget Office and will 
provide it in a supplemental report as soon as it is available 
to provide an estimate of federal mandates prepared by the 
Director of the Congressional Budget Office pursuant to section 
423 of the Unfunded Mandates Reform Act (Public Law 104-4).

                        PREEMPTION CLARIFICATION

    Section 423 of the Congressional Budget Act of 1974 
requires the report of any Committee on a bill or joint 
resolution to include a statement on the extent to which the 
bill or joint resolution is intended to preempt state, local, 
or tribal law. The Committee states that H.R. 5078 does not 
preempt any state, local, or tribal law.

                      ADVISORY COMMITTEE STATEMENT

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

                APPLICABILITY TO THE LEGISLATIVE BRANCH

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

             SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short title

    Section 1 of H.R. 5078 states that this Act may be cited as 
the ``Waters of the United States Regulatory Overreach 
Protection Act of 2014.''

Section 2. Rules and guidance

            Subsection (a): Identification of waters protected by the 
                    Clean Water Act
    Paragraph (1)(A) of subsection (a) (``In General'') 
prohibits the Secretary of the Army and the Administrator of 
the Environmental Protection Agency (hereinafter, the 
``Agencies'') from developing, finalizing, adopting, 
implementing, applying, administering, or enforcing either the 
Agencies':
          (i) proposed rule described in the notice of proposed 
        rule published in the Federal Register entitled 
        ``Definition of `Waters of the United States' Under the 
        Clean Water Act.'' The notice was published on April 
        21, 2014, in Volume 79 of the Federal Register at page 
        22188; or
          (ii) proposed guidance submitted to the Office of 
        Information and Regulatory Affairs of the Office of 
        Management and Budget for regulatory review under 
        Executive Order 12866, entitled ``Guidance on 
        Identifying Waters Protected By the Clean Water Act.'' 
        The guidance document was dated February 17, 2012 and 
        was referred to as ``Clean Water Protection Guidance,'' 
        Regulatory Identifier Number (RIN) 2040--ZA11, received 
        on February 21, 2012.
    Paragraph (1)(A) is intended to prevent the Agencies from 
finalizing the proposed rule or proposed guidance, or in any 
way using the proposed rule or proposed guidance, including 
developing, adopting, implementing, administering, or enforcing 
the proposed rule or proposed guidance, for any purpose 
whatsoever. The bill prohibits the Agencies from finalizing or 
implementing the proposed rule or proposed guidance in order to 
have the Agencies engage in a federalism consultation with 
state and local officials to formulate recommendations for a 
regulatory proposal that would identify the scope of waters 
covered under the CWA and the scope of waters not covered under 
the Act.
    Paragraph (1)(B) of subsection (a) expands on the 
prohibition in paragraph (1)(A) by prohibiting the Agencies 
from using the proposed rule or proposed guidance described in 
paragraph (1)(A), or any successor document, or any 
substantially similar proposed rule or guidance, as the basis 
for any decision regarding the scope or enforcement of the CWA 
or as the basis for any rulemaking.
    Paragraph (1)(B) is intended to prevent the Agencies from 
attempting to use, either directly or indirectly, the proposed 
rule or proposed guidance as the basis for any regulatory or 
other decision regarding the scope or applicability of the CWA. 
This includes any decision regarding whether any permitting, 
enforcement, or other regulatory requirement under any section 
of the CWA (including sections 404, 402, 401, 311, 303, and 
301) applies to a particular activity, circumstance, discharge, 
or water.
    This paragraph also is intended to prevent the Agencies 
from attempting to use, either directly or indirectly, the 
proposed rule or proposed guidance or any of the guidelines, 
interpretations, clarifications, considerations, or 
understandings contained in the proposed rule or proposed 
guidance, as the basis for any rulemaking that either of the 
Agencies has initiated or may initiate.
    Further, this paragraph is intended to prevent the Agencies 
from attempting to use any successor document, or any 
substantially similar proposed rule or proposed guidance, as 
the basis for any decision regarding the scope of the CWA or 
any rulemaking, as discussed in the preceding paragraphs. Any 
successor document or any substantially similar proposed rule 
or proposed guidance includes any earlier drafts of the 
proposed rule or proposed guidance developed prior to April 21, 
2014 or February 21, 2012, respectively, or any potential 
future versions of the proposed rule or proposed guidance, or 
related or similar proposed rule or proposed guidance, that the 
Agencies might develop in the future. This includes any 
previous or subsequent documents that may have been or will be 
developed that contain any or all of the guidelines, 
interpretations, clarifications, considerations, or 
understandings contained in the proposed rule or proposed 
guidance.
    The Agencies' 2003 and 2008 Clean Water Act guidance would 
be preserved and remain in effect under the bill.
    Paragraph (2) of subsection (a) (``Use of Rules and 
Guidance'') states that use of the proposed rule or proposed 
guidance, or any successor document, or any substantially 
similar proposed rule or proposed guidance, as the basis for 
any rulemaking or decision regarding the scope or enforcement 
of the CWA shall be grounds for vacating the rule, decision, or 
enforcement action. This paragraph reinforces the prohibition 
in paragraph (1) against the use of the proposed rule or 
proposed guidance, or of any successor document or any 
substantially similar proposed rule orproposed guidance, as the 
basis for any rulemaking or decision regarding the scope or enforcement 
of the CWA.
    This subsection is intended to provide grounds for a party 
challenging the validity of a rule, a provision in a rule, or a 
decision regarding the scope or enforcement of the CWA to 
vacate the rule, decision, or enforcement action if the 
proposed rule or proposed guidance, or any successor document 
or any substantially similar rule or guidance (including any of 
the guidelines, interpretations, clarifications, 
considerations, or understandings contained in the proposed 
rule or proposed guidance, successor document, or substantially 
similar guidance), was used as the basis for the rule, 
provision in the rule, or decision.
            Subsection (b): Exemption for certain agricultural 
                    conservation practices
    Paragraph (1) of subsection (b) (``In General'') prohibits 
the Agencies from developing, finalizing, adopting, 
implementing, applying, administering, or enforcing the 
interpretive rule described in the notice of availability 
published in the Federal Register entitled ``Notice of 
Availability Regarding the Exemption from Permitting Under 
Section 404(f)(1)(A) of the Clean Water Act to Certain 
Agricultural Conservation Practices.'' The notice was published 
on April 21, 2014, in Volume 79 of the Federal Register at page 
22276. The paragraph is intended to prevent the Agencies from 
finalizing the interpretive rule, or in any way using the 
interpretive rule, for any purpose whatsoever.
    Paragraph (2) of subsection (b) (``Withdrawal'') requires 
the Agencies to withdraw the interpretive rule. The paragraph 
makes it clear that the interpretive rule shall have no force 
or effect.
    Paragraph (3) of subsection (b) (``Application'') states 
that the CWA section 404(f)(1)(a) permitting exemptions for 
normal farming, silviculture, and ranching activities shall be 
applied without regard to the interpretive rule. The paragraph 
makes it clear that compliance with NRCS agricultural 
conservation practice standards is not a prerequisite for a 
farmer to qualify for the section 404(f)(1)(a) permitting 
exemptions. The exemptions are to be applied independent of the 
interpretive rule or the NRCS standards.

Section 3. Federalism consultation

            Subsection (a): In general
    Subsection (a) requires the Agencies to jointly consult 
with relevant state and local officials to develop 
recommendations for a regulatory proposal that would, 
consistent with applicable rulings of the United States Supreme 
Court, identify the scope of waters covered under the CWA, and 
also the scope of waters not covered under the Act. Those 
waters not covered under the Act would be reserved to the 
states to determine whether and how to regulate. The 
recommendations for a regulatory proposal would need to be 
consistent with applicable rulings of the United States Supreme 
Court. This would include the Supreme Court's rulings in the 
Riverside Bayview, SWANCC, and Rapanos cases. The term ``state 
and local officials'' (defined in Section 4) means elected or 
professional state and local government officials or their 
representative regional or national organizations.
            Subsection (b): Consultation requirements
    Subsection (b) lays out the consultation requirements the 
Agencies must follow in conducting the federalism consultation 
under subsection (a). In developing the recommendations under 
subsection (a), the Agencies are required to:
          (1) provide relevant state and local officials with 
        notice and an opportunity to participate in the 
        consultation process under subsection (a);
          (2) seek to consult state and local officials that 
        represent a broad cross-section of regional, economic, 
        and geographic perspectives in the United States;
          (3) emphasize the importance of collaboration with 
        and among the relevant state and local officials;
          (4) allow for meaningful and timely input by state 
        and local officials;
          (5) be respectful of maintaining the federal-state 
        partnership in implementing the CWA;
          (6) take into consideration the input of state and 
        local officials regarding matters involving differences 
        in state and local geography, hydrology, climate, legal 
        frameworks, economies, priorities, and needs;
          (7) promote transparency in the consultation process 
        under subsection (a); and
          (8) explore with state and local officials whether 
        Federal objectives under the CWA can be attained by 
        means other than through a new regulatory proposal.
            Subsection (c): Reports
    Paragraph (1) of subsection (c) (``In General'') requires 
the Agencies to prepare, and publish in the Federal Register 
for public review and comment, a draft report describing the 
recommendations developed in the consultation process under 
subsection (a). The report is to be published not later than 12 
months after the date of enactment of the Act.
    Paragraph (2) of subsection (c) (``Consensus Requirement'') 
restricts the Agencies to including, in the report, only those 
recommendations on which consensus has been reached among the 
Corps, EPA, and the state and local officials consulted in the 
federalism consultation under subsection (a). Recommendations 
that one or more of the parties did not agree with or reach 
consensus on shall not be included in the report.
    Paragraph (3) of subsection (c) (``Failure To Reach 
Consensus'') provides that, if the Corps, EPA, and the State 
and local officials consulted under subsection (a) fail to 
reach consensus on a regulatory proposal, the draft report 
shall identify that consensus was not reached and shall 
describe:
          (A) the areas and issues where consensus was reached;
          (B) the areas and issues of continuing disagreement 
        that resulted in the failure to reach overall 
        consensus; and
          (C) the reasons for the continuing disagreements.
    Paragraph (4) of subsection (c) (``Duration Of Review'') 
requires that the Agencies shall provide not fewer than 180 
days for the public review and comment of the draft report.
    Paragraph (5) of subsection (c) (``Final Report'') requires 
that the Agencies shall, in consultation with the state and 
local officials, address any comments received during the 
public comment period under paragraph (4), and prepare a final 
report describing the final results of the consultation process 
under subsection (a). The final report shall take into account 
the views of the state and local officials, in addition to 
those of the Agencies.
            Subsection (d): Submission of report to congress
    Subsection (d) requires that, not later than 24 months 
after the date of enactment of the Act, the Agencies are to 
jointly submit to the committees of jurisdiction in the House 
of Representatives and the Senate, specifically the Committee 
on Transportation and Infrastructure of the House of 
Representatives and the Committee on Environment and Public 
Works of the Senate, and make publicly available, the final 
report prepared under subsection (c)(5).

Section 4. Definitions

    Section 4 provides definitions for the following terms used 
in the bill:
    (1) Secretary. The term ``Secretary'' means the Secretary 
of the Army.
    (2) Administrator. The term ``Administrator'' means the 
Administrator of the Environmental Protection Agency.
    (3) State and Local Officials. The term ``State and local 
officials'' means elected or professional State and local 
government officials or their representative regional or 
national organizations.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    H.R. 5078 would not make any changes to existing law.

                            DISSENTING VIEWS

    We recognize that the reach and application of Federal 
Clean Water Act protections have long been subject to rigorous 
debate. Since the Act's enactment over the veto of President 
Nixon in 1972, the three branches of the Federal government 
have wrestled with how and where to apply the general premise 
of the Act--to prohibit the discharge of pollutants into the 
``waters of the United States'' unless such discharges are 
covered by a point source permit (under section 402) or a 
dredge and fill permit (under section 404)--in furtherance of 
its goal to ``restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters.''
    Yet, we also recognize that a clear understanding of the 
Act's reach and application is essential both to the regulated 
community and the American public. Clarity is essential to the 
regulated community so they can understand and meet their legal 
obligations under the Clean Water Act. Likewise, clarity is 
critical to the general public so they may be assured that 
water quality is uniformly protected, regardless of what state 
or region of the country the water may be located. The American 
people have a right to expect that wherever they travel in the 
country, the waters where they drink, swim, fish, hunt, or 
otherwise enjoy nature are clean, and that wherever they live, 
their property is reasonably protected from the risk of 
flooding.
    Today, confusion and uncertainty on the reach and 
application of Clean Water Act protections abound. Much of this 
confusion was created by two decisions of the U.S. Supreme 
Court\1\ which called into question the scope of Federal 
protections under the Clean Water Act. Additional uncertainty 
was created by the Bush administration, which adopted two 
separate administrative guidance documents (that remain in 
force today) interpreting these Supreme Court decisions in a 
manner that has been described as ``arbitrary'', ``confusing'', 
and ``frustrating''.
---------------------------------------------------------------------------
    \1\See Solid Waste Agency of Northern Cook County v. U.S. Army 
Corps of Engineers (SWANCC), 531 U.S. 159 (2001) and Rapanos v. United 
States, 547 U.S. 715 (2006).
---------------------------------------------------------------------------
    In response to this regulatory confusion, and to calls from 
both the regulated and environmental community for additional 
regulatory clarity,\2\ the Obama administration released a 
proposed rule\3\ to reduce the confusion about what waters are 
covered by Clean Water Act protections, to clarify the types of 
waters covered by the Act, based on the best available science, 
and to save businesses time and money. In addition, the 
administration has extended the public comment period on the 
proposed rule (through October, 2014) to allow all parties to 
weigh in with their support, concerns, or proposed changes to 
the rule.
---------------------------------------------------------------------------
    \2\For nearly a decade, members of Congress, state and local 
officials, industry, agriculture, environmental, and the public have 
asked for a rulemaking to provide additional regulatory clarity. See 
http://www2.epa.gov/uswaters/persons-and-organizations-requesting-
clarification-waters-united-states-rulemaking.
    \3\See Definition of ``Waters of the United States'' Under the 
Clean Water Act; Proposed Rule. 79 Fed. Reg. 22187 (April 21, 2014).
---------------------------------------------------------------------------
    Yet, while all parties would benefit from (and most are 
demanding) greater clarity, the Committee on Transportation and 
Infrastructure now reports this bill (H.R. 5078) that can only 
perpetuate the confusion and uncertainly, the associated 
increases in project costs and delays, as well as diminished 
protection of the nation's rivers, streams, and lakes, and the 
public health and economic benefits that derive from these 
waterbodies.
    Unfortunately, over the past few years, the debate on the 
reach and application of the Clean Water Act has been driven 
more by the rhetoric than the reality. Nowhere is this more 
evident than with this administration's efforts to interpret 
the 2001 and 2006 decisions of the Supreme Court through 
Federal agency actions.
    Historically, the U.S. Environmental Protection Agency 
(EPA) and the Department of the Army, Corps of Engineers 
(Corps), under both Republican\4\ and Democratic\5\ 
administrations, have utilized the Federal regulatory process, 
including the use of interpretative administrative guidance 
documents and formal agency rulemaking, to clarify how Federal 
agencies will implement the Act.
---------------------------------------------------------------------------
    \4\See Advance Notice of Proposed Rulemaking on the Clean Water Act 
Regulatory Definition of ``Waters of the United States'', Joint 
Memorandum, 68 Fed. Reg. 1991, 1995 (January 15, 2003); EPA and Army 
Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction 
after Rapanos, 72 Fed. Reg. 31824 (June 8, 2007); and Clean Water Act 
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. 
United States & Carabell v. United States, located at http://
water.epa.gov/lawsregs/guidance/wetlands/upload/
2008_12_3_wetlands_CWA_Jurisdiction_Following_Rapanos120208.pdf5.
    \5\See EPA and Corps Memorandum, entitled ``Supreme Court Ruling 
Concerning CWA Jurisdiction over Isolated Waters,'' dated January 19, 
2001, located at /www.spn.usace.army.mil/regulatory/misc/
swancc.pdf>.
---------------------------------------------------------------------------
    However, the regulated community, conservation and 
environmental organizations, and several States, as well as 
several justices of the Supreme Court, have commented that 
current interpretations on the reach and application of the Act 
remain confusing, inconsistent, and costly, are unfair to the 
regulated public, and provide little environmental benefit. 
According to the Corps, in recent years, the vast majority of 
permit applicants under section 404 would rather concede Clean 
Water Act jurisdiction\6\ than maneuver through the formal 
process for determining whether a waterbody may (or may not) be 
covered by the Act.
---------------------------------------------------------------------------
    \6\The Committee received testimony that, following the Rapanos 
decision, the EPA and the Corps regulatory process was in ``turmoil'' 
and that the ``typical 60 to 120 day permit process . . . slowed to a 
crawl.'' See Testimony of Marcus J. Hall, County Engineer, Committee on 
Transportation and Infrastructure, Hearing on the ``Status of the 
Nation's Waters, including Wetlands, Under the Jurisdiction of the 
Federal Water Pollution Control Act'', July 19, 2007. In response to 
requests from the regulated community, the Corps published Regulatory 
Guidance Letter (RGL) 08-02, which allows permit applicants to concede 
jurisdiction under the Clean Water Act for the waterbody in question, 
and receive expedited review of the subsequent permit application.
---------------------------------------------------------------------------
    For example, according to the public comments submitted by 
the American Farm Bureau Federation, the National Association 
of Home Builders, and other regulated entities, ``The [Bush 
administration] Guidance is causing confusion and added delays 
in an already burdened and strained permit decision-making 
process, which ultimately will result (and is resulting) in 
increased delays and costs to the public at large.''\7\
---------------------------------------------------------------------------
    \7\See Comments of American Farm Bureau Federation, the National 
Association of Home Builders, et. al., submitted January 22, 2008, 
(Docket No. EPA-HQ-OW-2007-0282).
---------------------------------------------------------------------------
    We agree. Yet, at this time, it is unlikely that Congress 
can reach consensus on how to legislatively respond to the 
Supreme Court decisions in a way that continues progress 
towards improving the Nation's water quality. Therefore, 
Federal agencies must be allowed to utilize every opportunity 
in the administrative process to clarify the Clean Water Act, 
in accordance with the precedent of the Supreme Court. In our 
view, this is exactly what would be accomplished by allowing 
the administration to complete its proposed rulemaking process.
    Yet, H.R. 5078 inexplicitly moves in the opposite 
direction.
    H.R. 5078 would lock-in-place today's confusing, 
inconsistent, costly, and controversial program guidance--not 
only for the current administration, but potentially for future 
administrations, as well. As reported, H.R. 5078 would create 
significant legal hurdles that would render future Federal 
rulemaking efforts difficult and costly, as well as open up 
additional opportunities for litigation and regulatory 
confusion in an area that is already prone to such challenges.
    Should H.R. 5078 be enacted, this legislation will:
           LPerpetuate the increased permitting costs 
        to the regulated community, including construction 
        project sponsors, municipalities, industrial 
        dischargers, and landowners;
           LAdd unnecessary delay (and increased costs) 
        to project sponsors as they struggle to figure out what 
        the rules may be across the nation;
           LIncrease the costs of compliance and 
        oversight for States;
           LIncrease the potential for litigation on 
        the applicability and reach of the Clean Water Act; and
           LAbandon Clean Water Act protections over 
        rivers, lakes, and streams, and adversely impact the 
        millions of Americans who rely on these waters for 
        drinking water, recreation, hunting and fishing, and 
        other economic benefits.
    If the intent of H.R. 5078 is to make Federal Clean Water 
Act protections so confusing, costly, and haphazard as to 
render them meaningless--then this legislation may succeed as 
intended. If the intent of this legislation is to benefit the 
lawyers, lobbyists, and polluters by perpetuating the 
regulatory confusion and uncertainty that allows unscrupulous 
individuals to hide in the regulatory shadows--then, again, 
this legislation may succeed.
    We cannot support this legislation. In our view, neither 
the regulated community nor the general public can logically 
benefit from passage of H.R. 5078. A more prudent approach 
would be to allow the regulatory process to work, as intended, 
rather than tying the hands of the Executive Branch to pursue 
clarifying changes.
    We have encouraged all parties to fully utilize the public 
comment period to make their views on the proposed rule known, 
and we have received commitments from the administration that, 
in areas where additional clarity may be necessary (consistent 
with the goals of the Clean Water Act and Supreme Court 
precedent), such changes will be considered before the rule is 
finalized.
    Instead, H.R. 5078 perpetuates the increased costs and 
delay experienced by the regulated community, as well as the 
confusion and uncertainly felt by the general public whether 
large categories of waterbodies are at increased risk of 
pollution or degradation.
    In our view, this is the wrong approach.

Background

    The Clean Water Act was enacted in 1972, with a goal of to 
restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.
    Generally speaking, the Clean Water Act prohibits the 
discharge of any pollutants into the ``waters of the United 
States'' unless the discharges are covered by a point source 
permit (under section 402 of the Act) or a dredge and fill 
permit (under section 404 of the Act).
    The term ``waters of the United States'' applies equally to 
both sections 402 and 404 of the Act, as well as the other 
regulatory provisions of the Clean Water Act (e.g., 
establishment of water quality standards and total maximum 
daily load (TMDLs) allocations), and is statutorily defined as 
meaning ``the waters of the United States, including the 
territorial seas.'' Both the EPA and the Corps have further 
defined the term ``waters of the United States'' by 
regulation.\8\
---------------------------------------------------------------------------
    \8\The regulatory definition of the term ``waters of the United 
States'' is defined in regulations of the Corps (33 CFR 328.8) and EPA 
(40 CFR 122.2), as:
    ``(a) The term waters of the United States means
       (1) All waters which are currently used, or were used in the 
past, or may be susceptible to use in interstate or foreign commerce, 
including all waters which are subject to the ebb and flow of the tide;
       (2) All interstate waters including interstate wetlands;
       (3) 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 including any such waters:
         (i) Which are or could be used by interstate or foreign 
travelers for recreational or other purposes; or
         (ii) From which fish or shellfish are or could be taken and 
sold in interstate or foreign commerce; or
         (iii) Which are used or could be used for industrial purpose 
by industries in interstate commerce;
       (4) All impoundments of waters otherwise defined as waters of 
the United States under the definition;
       (5) Tributaries of waters identified in paragraphs (a) (1) 
through (4) of this section;
       (6) The territorial seas;
       (7) Wetlands adjacent to waters (other than waters that are 
themselves wetlands) identified in paragraphs (a) (1) through (6) of 
this section.''
---------------------------------------------------------------------------
    In 2001 and 2006, the Supreme Court issued two decisions 
that have impacted the jurisdictional scope of the Act. These 
decisions called into question whether the Act continues to 
apply to isolated, intrastate, non-navigable waters (the Solid 
Waste Agency of Northern Cook County v. Corps of Engineers, or 
SWANCC decision) or to the waters and tributaries in the upper 
reaches of a watershed (the Rapanos decision). Generally 
speaking, these decisions challenged what had been a decades-
old understanding that Federal protections were to be broadly 
applied, consistent with the comprehensive nature of the Act to 
restore and protect water quality, and the economic, 
environmental, and public health benefits associated with clean 
water.\9\
---------------------------------------------------------------------------
    \9\During the Floor debate on the Conference Report to S. 2770 
(which would later be enacted as the 1972 Clean Water Act), 
Representative John D. Dingell noted that ``the conference report 
defines the term `navigable waters'' broadly for water quality 
purposes. It means all `the waters of the United States' in a 
geographical sense. It does not mean `navigable waters of the United 
States' in the technical sense as we sometimes see in some laws. . . . 
[This] new definition encompasses all water bodies, including main 
streams and their tributaries, for water quality purposes. No longer 
are the old, narrow definitions of navigability, as determined by the 
Corps of Engineers, going to govern matters covered by this bill.'' See 
Congressional Record, October 4, 1972 at 33756-57.
---------------------------------------------------------------------------
    As a result, the last three Presidential administrations 
have utilized the regulatory process, using both administrative 
guidance and rulemaking, to interpret how court decisions have 
impacted Clean Water Act protections. While attempts by the 
Bush administration to undertake a rulemaking\10\ did not 
result in changes to Clean Water Act regulations, it issued 
three interpretative guidance documents. The most recent of 
these, finalized in 2003 and 2008, remain in use by EPA and the 
Corps for asserting Clean Water Act jurisdiction. These 
guidance documents authorize EPA and the Corps to assert Clean 
Water Act protections using either of the two tests outlined by 
Justices Scalia and Kennedy in the Rapanos decision, as well as 
for asserting jurisdiction over isolated, non-navigable, 
intrastate waters under the SWANCC decision.
---------------------------------------------------------------------------
    \10\See Advanced Notice of Proposed Rulemaking on the Clean Water 
Act Regulatory Definition of ``Water of the United States'', 68 Fed. 
Reg. 1991 (January 15, 2003).
---------------------------------------------------------------------------
    Yet, in years that have passed since these court decisions, 
stakeholders from both the regulated community and the 
conservation and environmental community have stated their 
belief that the status quo Clean Water Act regulatory system is 
broken, and in desperate need of clarity and certainty.
     ``With no clear regulatory definitions to guide 
their determinations, what has emerged is a hodgepodge of ad 
hoc and inconsistent jurisdictional theories.''\11\
---------------------------------------------------------------------------
    \11\``Comments of the American Farm Bureau Federation, the National 
Association of Realtors, and the Foundation for Environmental and 
Economic Progress, et al., submitted April 16, 2003, (Docket No. EPA-
HQ-OW-2002-0050).
---------------------------------------------------------------------------
     ``The [2007 Bush administration] Guidance is 
causing confusion and added delays in an already burdened and 
strained permit decision-making process, which ultimately will 
result (and is resulting) increased delays and costs to the 
public at large.''\12\
---------------------------------------------------------------------------
    \12\Comments of the American Farm Bureau Federation, the National 
Association of Homebuilders, et. al., submitted January 22, 2008, 
(Docket No. EPA-HQ-OW-2007-0282).
---------------------------------------------------------------------------
     ``The 2003 SWANCC Guidance and the 2008 Rapanos 
guidance have placed millions of wetland acres and tens of 
thousands of stream miles at risk of pollution and destruction. 
Given the interrelationship between waters, the existing 
Guidance has put all of the Nation's waters at risk by 
retreating from the comprehensive protection needed to achieve 
the Act's goals.''\13\
---------------------------------------------------------------------------
    \13\Comments of the National Wildlife Federation, the Izaak Walton 
League of America, Theodore Roosevelt Conservation Partnership, Trout 
Unlimited, and The Wildlife Society, submitted July 31, 2011, (Docket 
No. EPA-HQ-OW-2011-409).
---------------------------------------------------------------------------
     ``[Clean Water Act] processes and administration 
under the interim guidance released immediately subsequent to 
the SWANCC and Rapanos cases, and under the 2003 and 2008 
guidance, seem to have been universally frustrating. Permit 
applicants, farmers, conservationists, landowners, communities, 
state and local agencies and other affected entities have all 
long expressed a strong desire for greater certainty and 
clearer processes since SWANCC. . .''\14\
---------------------------------------------------------------------------
    \14\Comments of Ducks Unlimited, submitted July 20, 2011, (Docket 
No. EPA-HQ-OW-2011-0409).
---------------------------------------------------------------------------
     ``Until a comprehensive set of rules regarding 
which water bodies the Agencies will regulate as waters of the 
United States is promulgated, the public and Agency field staff 
will be beleaguered by partial answers, confusing standards, 
and ad hoc, overbroad, and arbitrary decisions pertaining to 
the scope of federal [Clean Water Act] jurisdiction.''\15\
---------------------------------------------------------------------------
    \15\Comments of the Waters Advocacy Coalition, submitted July 29, 
2011, (Docket No. EPA-HQ-OW-2011-0409).
---------------------------------------------------------------------------
    In response to these widespread calls for regulatory 
clarity, on April 21, 2014, EPA and the Corps issued a proposed 
rulemaking to provide greater certainly on the reach and 
application of the Clean Water Act. On that date, both agencies 
published in the Federal Register, proposed a rule that would 
have replaced the existing 2003 and 2008 guidance documents of 
the Bush administration, and provided a 90 day period for 
public comment on the proposed changes.\16\
---------------------------------------------------------------------------
    \16\See 79 Fed. Reg. 22187 (April 21, 2014).
---------------------------------------------------------------------------
    On June 24, 2014, EPA and the Corps extended the public 
comment period on the proposed rule through October 20, 
2014.\17\
---------------------------------------------------------------------------
    \17\See 79 Fed. Reg. 35712 (June 24, 2014).
---------------------------------------------------------------------------

Comparison between current 2008 guidance and 2014 proposed rule

    In order to understand the legal context in which H.R. 5078 
is being considered, it is also important to compare the 
existing guidance documents with the 2014 proposed rule.
    While the rhetoric surrounding the proposed rule may 
suggest otherwise, generally speaking, the 2008 guidance and 
the 2014 proposed guidance are remarkably similar in scope. 
Where these documents most strikingly differ is in providing 
the regulated community with greater detail on the legal and 
scientific analysis that will trigger Clean Water Act 
protections over waterbodies, as well as providing the 
opportunity to utilize previous Clean Water Act determinations 
as a basis to assert or deny Clean Water jurisdiction.
    It is this lack of detail and required analysis from the 
2008 guidance which has caused much of the confusion and 
uncertainty in the regulated community (and the associated 
delays and increased permitting costs), as well as the loss of 
Clean Water Act protections over certain types and categories 
of waterbodies.
            Similarities Between 2008 guidance and 2014 proposed rule
    Both the guidance and the proposed rule are intended to 
provide the public with information on how EPA and the Corps 
will identify waters protected by the Clean Water Act, and how 
the agencies will implement the 2001\18\ and 2006 decisions of 
the Supreme Court on this issue. Both documents state that they 
are intended to address the ``uncertainty'' and permitting 
delays\19\ that have resulted from the Supreme Court decisions, 
and to improve ``predictability and consistency by increasing 
clarity as to the scope of `waters of the United States' 
protected under the Act''.\20\
---------------------------------------------------------------------------
    \18\The 2008 guidance includes a reference to an earlier 2003 
guidance document issued by the Bush administration that addressed 
questions regarding implementation of the 2001 Supreme Court decision 
(the SWANCC decision), which was unaffected by the 2008 guidance. This 
2003 guidance document, published in the Federal Register on January 
15, 2003, superseded an earlier 2001 guidance document on this issue 
produced by the Clinton administration (dated January 19, 2001).
    \19\See 72 Fed. Reg. 31824, 31825 (June 8, 2007).
    \20\See 79 Fed. Reg. 2187, 22188 (April 21, 2014).
---------------------------------------------------------------------------
    Both documents also describe the process applying Clean 
Water Act protections using either the legal rationale of the 
Rapanos plurality (authored by Justice Scalia) (``relatively 
permanent waters'' and ``continuous surface connection'' test) 
or the opinion of Justice Kennedy (``significant nexus'' test).
    The 2008 guidance and 2014 proposed rule also provide a 
strikingly similar list of waterbodies where Clean Water Act 
protections are applied. For example, under both documents, the 
agencies will continue to assert Clean Water Act jurisdiction 
over:
           All waters which are currently used, were 
        used in the past, or may be susceptible to use in 
        interstate or foreign commerce, including all waters 
        which are subject to the ebb and flow of the tide;
           All interstate water, including interstate 
        wetlands;
           The Territorial seas;
           All impoundments of such waters;
           Tributaries; and
           Adjacent wetlands.
    In addition, both documents would determine the 
jurisdiction of certain waterbodies if a fact-based analysis 
determines that these waters have a ``significant nexus'' to 
another traditionally jurisdictional water.
    Finally, both documents identify certain types of 
waterbodies that are not subject to Clean Water Act 
jurisdiction, such as waste treatment systems, prior converted 
croplands, and certain erosional features (gullies and rills), 
swales, and ditches.
            Differences between 2008 guidance and 2014 proposed rule
    The 2014 proposed rule would replace the existing guidance 
documents to improve the predictability and clarity of Clean 
Water Act implementation. Yet, like the 2008 guidance document, 
EPA and the Corps have stated that these differences are 
``consistent with the CWA, as interpreted by the Supreme Court, 
and as supported by science, and to provide maximum clarity to 
the public, as the agencies work to fulfil the CWA's objectives 
and policy to protect water quality, public health, and the 
environment.''\21\
---------------------------------------------------------------------------
    \21\See 79 Fed. Reg. 22187, 22190 (April 21, 2014).
---------------------------------------------------------------------------
            Jurisdiction over tributaries and adjacent waters
    One significant difference between the 2008 guidance and 
the 2014 proposed rule addresses how the agencies will assert 
jurisdiction over tributaries and adjacent waters.
    For the first time, the agencies have proposed a definition 
of the term ``tributaries'' and propose that only those waters 
that meet this definition and that flow directly or indirectly 
into a traditional navigable water, an interstate water, or the 
territorial seas are jurisdictional as tributaries.
    Similarly, the 2014 proposed rule would amend the 
definition of ``adjacent'' to cover both adjacent wetlands and 
other adjacent waterbodies. This definition (including 
corresponding definitions of the terms ``neighboring,'' 
``riparian area'', and ``floodplain'') afford greater clarity 
to the identification of waters that would be jurisdictional by 
rule under this category using well understood ecological 
concepts. In addition, the 2014 proposed rule would clarify 
that waters outside of riparian and floodplain areas only be 
jurisdictional if they have a confined surface or shallow 
subsurface connection to a traditional navigable water, an 
interstate water, the territorial seas, or an impoundment or 
tributary of such waters. As a result, no additional site-
specific analysis would be required for the adjacent waters 
category.
    This is a change from the process followed under the 2008 
guidance. Under the 2008 guidance, only certain waters 
(traditional navigable waters, interstate waters, wetlands 
adjacent to traditional navigable waters or interstate waters, 
and non-navigable tributaries to traditional navigable waters 
that are relatively permanent) are considered jurisdictional by 
themselves. As a result, under the 2008 guidance, all other 
tributaries, waters, and adjacent wetlands are required to 
undergo a lengthy and costly ``significant nexus'' evaluation 
to a traditional navigable water or interstate water before 
Clean Water Act jurisdiction may be asserted.
    According to the 2014 proposed rule, ``the finding of 
significant nexus [for all tributaries, by rule] is based in 
the chemical, physical, and biological interrelationship 
between a water, the tributary network, and the traditional 
navigable waters, interstate waters, and the territorial 
seas.''\22\ According to the proposed rule, ``tributaries and 
their adjacent waters, and the traditional navigable waters, 
interstate waters, and territorial seas to which these waters 
flow, are an integrated ecological system, and discharges of 
pollutants, including the discharges of dredged or fill 
material, into these components of the ecological system, must 
be regulated under the CWA to restore and maintain the 
chemical, physical and biological integrity of these waters, 
[and] is consistent with the statute, the Supreme Court's 
decisions, the best available science, and scientific and 
technical expertise.''\23\
---------------------------------------------------------------------------
    \22\See 79 Fed. Reg. 22187, 22205 (April 21, 2014).
    \23\See 70 Fed. Reg. 22187, 22210 (April 21, 2014).
---------------------------------------------------------------------------
    This proposed change will greatly benefit the regulated 
community, because it will reduce some permitting costs and 
speed the permit review process in the long-term by clarifying 
jurisdictional matters that have been time-consuming and 
confusing for field staff and the regulated community.
            ``Similarly situated in the region'' analysis
    One critical clarification contained in the 2014 proposed 
rule addresses the agencies' interpretation of Justice 
Kennedy's significant nexus analysis, and the ability to assess 
the relationship of a waterbody to its surrounding watershed in 
determining the reach and application of Clean Water Act 
protections.
    In determining whether a waterbody has a significant nexus 
to other jurisdictional waters, Justice Kennedy stated that the 
appropriate analysis included reviewing whether the waterbody 
``either alone or in combination with similarly situated lands 
in the region, significantly affect the chemical, physical, and 
biological integrity of other covered waters more readily 
understood as `navigable'''.\24\ While Justice Kennedy did not 
define what he meant by the terms ``similarly situated'' or 
``in the region,'' public commentators have argued that it is a 
reasonable inference for Federal agencies to take into 
consideration the connections between waters (including 
wetlands) and the ecological and hydrological values (including 
nutrient reduction and food control) provided by these 
waters.\25\
---------------------------------------------------------------------------
    \24\See Rapanos v. United States, 547 U.S. 715, 780 (2006).
    \25\See Comments of the National Wildlife Federation, the Izaak 
Walton League of America, Theodore Roosevelt Conservation Partnership, 
Trout Unlimited, and The Wildlife Society, submitted July 31, 2011, 
(Docket No. EPAHQ-OW-2011-409).
---------------------------------------------------------------------------
    According to Justice Kennedy: ``Where an adequate nexus is 
established for a particular wetland, it may be permissible, as 
a matter of administrative convenience or necessity, to presume 
covered status for other covered wetlands in the region.''\26\
---------------------------------------------------------------------------
    \26\See Rapanos v. United States, 547 U.S. 715, 782 (2006). This 
legal reasoning was echoed in public comments on the 2011 guidance, 
which stated, ``There is no indication that if Justice Kennedy meant to 
apply the significant nexus test on a case-by-case basis to tributaries 
. . . he would find collective impacts to be irrelevant to such 
consideration. Indeed, given his stress on ecological factors and 
aggregation of impacts, all inferences are to the contrary. Justice 
Kennedy's opinion clearly implies aggregation should take place on a 
broader regional scale, such as the watershed of traditionally 
navigable water, using solid ecology.'' See Comments of the National 
Wildlife Federation, the Izaak Walton League of America, Theodore 
Roosevelt Conservation Partnership, Trout Unlimited, and The Wildlife 
Society, submitted July 31, 2011, (Docket No. EPA-HQ-OW-2011-409).
---------------------------------------------------------------------------
    Yet, the 2008 guidance adopted a narrow view in defining 
the use of the term ``similarly situated'' by: (1) limiting the 
significant nexus analysis to only those wetlands that are 
directly adjacent to the tributary where Clean Water Act 
coverage is being determined (for purposes of determining 
collective impacts of adjacent wetlands); and (2) by limiting 
the scope of significant nexus review to the potential impacts 
caused by a singular reach of the stream of the same order to 
the downstream traditionally navigable water. In addition, the 
2008 guidance did not interpret the ``in the region'' concept 
advanced by Justice Kennedy, but instead requires Federal 
agencies (and the regulated community) to conduct independent 
(and costly) analyses for each potential reach of targeted 
waterbodies.
    As a result, under the 2008 guidance, agency determinations 
of Clean Water Act protections have been limited to a review of 
the significant nexus of the smallest possible reach of a 
waterbody to a downstream ``traditionally-navigable water'', 
and that each reach must be evaluated independently for its own 
significant nexus evaluation. Ironically, this approach has 
resulted in more burdensome, expensive, and impractical 
information gathering exercises the regulated community (and 
the Federal and State agencies) in order to demonstrate a 
significant nexus.\27\ This Committee has received numerous 
reports and Congressional testimony on the associated costs and 
project delays from this process.
---------------------------------------------------------------------------
    \27\See Congressionally Requested Report on Comments Related to 
Effects of Jurisdictional Uncertainty on Clean Water Act 
Implementation, prepared by the EPA Office of Inspector General (Report 
No. 09-N-0149), available at http://www.epa.govioig/reports/2009/
20090430-09-N-0149.pdf.
---------------------------------------------------------------------------
    In contrast, the 2014 proposed rule generally authorizes 
agency field staff to assess whether a waterbody has a 
significant nexus, where the waterbody ``either alone or in 
combination with other similarly situated waters, including 
wetlands, located in the same region, have a significant 
nexus'' to a traditionally navigable water, an interstate 
water, or the territorial seas.\28\ The proposed rule defines 
the term ``significant nexus'' to mean a water that 
``significantly affects the chemical, physical, or biological 
integrity'' of a traditional navigable water, an interstate 
water, or the territorial seas, and further states that, ``for 
an effect to be significant, it must be more than speculative 
or insubstantial.\29\
---------------------------------------------------------------------------
    \28\See 79 Fed. Reg. 22187 (April 21, 2014).
    \29\See 79 Fed. Reg. 22187 (April 21, 2014). The guidance also 
notes that other waters are similarly situated when ``they perform 
similar functions and are located sufficiently close together or 
sufficiently close to a 'water of the United States' so that they can 
be evaluated as a single landscape unit with regard to their effect on 
the chemical, physical, or biological integrity'' of a traditionally 
navigable water, an interstate water, or the territorial seas.
---------------------------------------------------------------------------
    This change recognizes that, over time, there may be 
multiple determinations of Clean Water Act authority within the 
same watershed, and allows agency field staff to utilize 
previous jurisdictional assessments in analyzing future 
waterbodies.
    This proposed change will greatly benefit the regulated 
community, because it will reduce some permitting costs and 
speed the permit review process in the long-term by clarifying 
jurisdictional matters that have been time-consuming and 
confusing for field staff and the regulated community. At the 
same time, this change contains sufficient safeguards to ensure 
that waterbodies cannot be deemed jurisdictional simply for the 
fact that they lie within the same watershed as another 
jurisdictional water.
            Clean Water Act protections of isolated, non-navigable, 
                    intrastate waterbodies
    Another significant clarification proposed in the 2014 
rulemaking is what analysis EPA or the Corps must utilize to 
apply Clean Water Act protections over so-called 
``geographically'' isolated, intrastate waterbodies.
    In 2001, the Supreme Court raised questions whether non-
navigable, isolated, intrastate waterbodies, such as vernal 
pools, playa lakes, and prairie potholes, were subject to Clean 
Water Act protections. The Court concluded that neither EPA nor 
the Corps could apply the Clean Water Act to such waters where 
the sole basis for asserting Clean Water Act coverage is the 
actual or potential use of such waters as habitat for migratory 
birds.\30\
---------------------------------------------------------------------------
    \30\See 531 U.S. 159, 174 (2001).
---------------------------------------------------------------------------
    However, neither Republican nor Democratic administrations 
have interpreted the 2001 Supreme Court decision as precluding 
Clean Water Act protections over isolated, intrastate waters, 
in any situation.
    For example, in 2001, the Clinton administration issued 
guidance which suggested that the 2001 Supreme Court decision 
was limited in scope, and that ``field staff should no longer 
rely on the use of waters or wetlands as habitat by migratory 
birds as the sole basis for the assertion of regulatory 
jurisdiction under the CWA. . . . The Court's decision did not 
specifically address what other connections with interstate 
commerce might support the assertion of CWA jurisdiction over 
`non-navigable, isolated, intrastate waters' under subsection 
(a)(3).''\31\
---------------------------------------------------------------------------
    \31\See EPA and Corps Memorandum, entitled ``Supreme Court Ruling 
Concerning CWA Jurisdiction over Isolated Waters'', dated January 19, 
2001, located at /http://www.spn.usace.army.mi/regulatory/misc/
swancc.pdf>.
---------------------------------------------------------------------------
    Similarly, in 2003, the Bush administration issued guidance 
which restated the holding of the 2001 Supreme Court decision 
that neither EPA nor the Corps could assert Clean Water Act 
jurisdiction over ``isolated waters that are both intrastate 
and non-navigable where the sole basis for asserting CWA 
jurisdiction rests on any of the factors listed in the 
`Migratory Bird Rule'''.\32\ However, again, the 2003 guidance 
suggested that Clean Water Act jurisdiction over other non-
navigable, intrastate isolated waters could be asserted ``on 
other grounds listed in 33 CFR Sec. 328.3(a)(3)(i)-(iii),\33\ 
[but] field staff should seek formal project-specific 
Headquarters approval prior to asserting jurisdiction over such 
waters.''\34\
---------------------------------------------------------------------------
    \32\See 68 Fed. Reg. 1995, 1996 (January 15, 2003).
    \33\33 CFR 328.3(a)(3) states that the term ``waters of the United 
States'' includes ``(3) 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 including any such waters: (i) 
Which are or could be used by interstate or foreign travelers for 
recreational or other purposes; or (ii) From which fish or shellfish 
are or could be taken and sold in interstate or foreign commerce; or 
(iii) Which are used or could be used for industrial purpose by 
industries in interstate commerce.''
    \34\See 68 Fed. Reg. 1995, 1996 (January 15, 2003).
---------------------------------------------------------------------------
    The 2014 proposed rule restates the understanding of both 
the Clinton and Bush administration guidance documents that the 
Clean Water Act protections can continue to apply to isolated, 
non-navigable, intrastate waters, such as those traditionally 
listed in 33 CFR Sec. 328.3(a)(3). However, where the 2014 
proposed rule differs is how agencies may assert Clean Water 
Act protections over such waters.
    While both the Clinton and Bush administration guidance 
documents left undefined how isolated, non-navigable, 
intrastate waters could be determined jurisdictional--leaving 
the decision up to an ad hoc consultation with ``agency legal 
counse1''\35\ or ``formal project-specific Headquarters 
approval''\36\--the 2014 proposed rule clarifies that agency 
staff are to use the same ``significant nexus'' standard for 
asserting jurisdiction over isolated, non-navigable, intrastate 
waters, as they do for other waters that are not jurisdictional 
by rule.
---------------------------------------------------------------------------
    \35\See EPA and Corps Memorandum, entitled ``Supreme Court Ruling 
Concerning CWA Jurisdiction over Isolated Waters'', dated January 19, 
2001, located at /http://www.spn.usace.army.mil/regulatory/misc/
swancc.pdf>.
    \36\See 68 Fed. Reg. 1995, 1996 (January 15, 2003).
---------------------------------------------------------------------------
    Under the 2014 proposed rule, ``for the purpose of 
assessing whether a particular `water is a `water of the United 
States' because it, alone or in combination with other 
similarly situated waters, has a significant nexus to [a 
traditionally navigable water, an interstate water, or the 
territorial seas], the agencies are proposing to define each of 
the elements of Justice Kennedy's significant nexus standard in 
the definition of significant nexus.''\37\ The 2014 proposed 
rule drops the legal distinction of the term ``geographically'' 
isolated, which the agencies note ``should not be confused with 
functional isolation, because geographically isolated wetlands 
can still have hydrological and biological connections to 
downstream waters''\38\
---------------------------------------------------------------------------
    \37\See 79 Fed. Reg. 22187, 22246 (April 21, 2014).
    \38\See 79 Fed. Reg. 22187, 22225 (April 21, 2014).
---------------------------------------------------------------------------
    This clarification in the 2014 proposed rule is legally 
consistent with the opinion of Justice Kennedy when he 
described the Supreme Court's rationale for asserting 
jurisdiction over other isolated, non-navigable, intrastate 
waters, stating ``[in SWANCC], the Court held, under the 
circumstances presented there, that to constitute `navigable 
waters' under the Act, a water or wetland must possess a 
`significant nexus' to waters that are or were navigable in 
fact or that could reasonable be so made.''\39\
---------------------------------------------------------------------------
    \39\See 547 U.S. 715, 759 (2006).
---------------------------------------------------------------------------
            Traditional navigable waters and interstate waters
    Another change in the 2014 proposed rule addresses the 
definition and jurisdictional status of ``traditional navigable 
waters'' and ``interstate waters''.
    Both the 2008 guidance and the 2014 proposed rule authorize 
the agencies to assert Clean Water Act jurisdiction over 
traditional navigable waters, including those waters subject to 
sections 9 or 10 of the Rivers and Harbors Act (i.e., waters 
that are subject to the ebb and flow of the tine and/or are 
presently used, or have been used in the past, or may be 
susceptible for being used in commercial navigation),\40\ 
including commercial water-borne recreation.
---------------------------------------------------------------------------
    \40\See 33 CFR 392.4. According to regulatory definition of 
navigable waters, for the purposes of the Rivers and Harbors Act, a 
determination of navigability, once made, applies laterally over the 
entire surface of the waterbody and is not extinguished by later 
actions or events which impede or destroy navigable capacity.
---------------------------------------------------------------------------
    However, the 2008 guidance and the 2014 proposed rule 
differ on the standard of evidence necessary to be considered 
``susceptible to being used in the future for commercial 
navigation, including commercial water-borne navigation.'' 
Federal court rulings have held that ``actual use is not 
necessary for a navigability determination,'' and that a 
waterbody ``need only be susceptible to being used for 
waterborne commerce to be navigable-in-fact.''\41\ Accordingly, 
the 2014 proposed rule guidance clarifies that such a 
determination need not be require evidence of actual use (or 
intent for use) in commercial navigation, but can be maintained 
by current boating and canoe trips for recreation or trips 
taken solely for the purpose of demonstrating a waterbody can 
be navigated.
---------------------------------------------------------------------------
    \41\See Proposed 2011 Guidance at 24, citing FPL Energy Marine 
Hydro L.L.C. v. FERC, 287 F. 3rd 1151, 1157 (D.C. Cir. 2002) and Alaska 
v. Ahtna, Inc., 891 F. 2d 1401, 1405 (9th Cir. 1989).
---------------------------------------------------------------------------
    In addition, the 2014 proposed rule clarifies Clean Water 
Act jurisdiction over interstate waters by stating that such 
waters are, by definition, subject to Clean Water Act 
jurisdiction, ``without imposing a requirement that they be 
traditional navigable waters themselves or be connected to a 
traditional navigable water.''\42\
---------------------------------------------------------------------------
    \42\See 79 Fed. Reg. 22182, 22200 (April 21, 2014).
---------------------------------------------------------------------------
            Scope of Clean Water Act authorities affected by Supreme 
                    Court decisions
    The 2014 proposed rule also clarifies the extent to which 
recent decisions of the Supreme Court have affected the 
regulatory authorities of the Clean Water Act. While the SWANCC 
and Rapanos cases were focused on the application of section 
404 of the Act (related to permits for the placement of dredge 
and fill materials), subsequent judicial decisions have made it 
clear that any impacts to the regulatory definition of 
``navigable waters'' and ``waters of the United States'' affect 
the entirety of the Act.
    Accordingly, the 2014 proposed rule clarifies that 
questions on the reach and application of the Act affect other 
regulatory authorities, including section 402 (related to 
permits for point source discharges), section 311 (related to 
the discharge of oil or hazardous substances), the 
establishment of water quality standards and total maximum 
daily load programs under section 303, and the section 401 
state water quality certification program.
    This clarification does not represent a change in agency 
practice, per se, as both EPA and the Corps have been applying 
the holdings of the 2001 and 2006 decisions to all Clean Water 
Act programs since they were issued. For example, in the 2003 
guidance, issued during the Bush administration, EPA and the 
Corps noted that, ``the Court's decision [in SWANCC] may affect 
the scope of regulatory jurisdiction under other provisions of 
the CWA as well, including the Section 402 [National Pollutant 
Discharge Elimination System] program, the Section 311 oil 
spill program, water quality standards under Section 303, and 
Section 401 water quality certification.''\43\
---------------------------------------------------------------------------
    \43\See 68 Fed. Reg. 1995, 1996 (January 15, 2003).
---------------------------------------------------------------------------
    However, this clarification brings agency regulations in 
line with agency practice as well as to the holdings of recent 
judicial decisions.
            Waters generally not subject to the Clean Water Act
    As stated earlier, both the 2008 guidance and the 2014 
proposed rule identify types of waters that are generally not 
protected by the Clean Water Act, including erosional features 
(gullies and rills), swales, and ditches.
    Yet, the 2014 proposed rule expands the list of waters and 
aquatic areas that are no longer covered by the Clean Water 
Act, and permanently defines in the regulation that these 
waters are no longer subject to the regulatory requirements of 
the Act, even if they otherwise fall within the definition of 
jurisdictional waters. Under the 2014 proposed rule, the 
following waters and aquatic areas are, by regulation, not 
protected by the Clean Water Act:
      Waste treatment systems, including treatment 
ponds or lagoons, designed to meet the requirements of the 
Clean Water Act. This exclusion applies only to manmade bodies 
of water which neither were originally created in waters of the 
United States (such as disposal area in wetlands) nor resulted 
from the impoundment of waters of the United States.
      Prior converted cropland. Notwithstanding the 
determination of an area's status as prior converted cropland 
by any other Federal agency, for the purposes of the Clean 
Water Act, the final authority regarding Clean Water Act 
jurisdiction remains with EPA.
      Ditches that are excavated wholly in uplands, 
drain only uplands, and have less than perennial flow.
      Ditches that do not contribute flow, either 
directly or through another water, to a [traditional navigable 
water, an interstate water, or a territorial sea].
     The following features:
             Artificially irrigated areas that would revert to 
        upland should application of irrigation water to that 
        area cease;
             Artificial lakes or ponds created by excavating 
        and/or diking dry land and used exclusively for such 
        purposes as stock watering, irrigation, settling 
        basins, or rice growing;
             Artificial reflecting pools or swimming pools 
        created by excavating and/or diking dry land;
             Small ornamental waters created by excavating and/
        or diking dry land for primarily aesthetic reasons;
             Water-filled depressions created incidental to 
        construction activity;
             Groundwater, including groundwater drained through 
        subsurface drainage systems; and
             Gullies and rills and non-wetland swales.
    This list of waters and aquatic areas that are permanently 
excluded from the scope of the Clean Water Act provides greater 
clarity to the regulated community and the general public as to 
which waters are subject to the Clean Water Act permitting 
requirements.

H.R. 5078, as reported, will perpetuate the regulatory uncertainty and 
        confusion on the scope of Clean Water Act protections

    As stated earlier, the debate surrounding the scope of the 
Clean Water Act has been driven more by the rhetoric than the 
reality.
    In the 113th Congress, on at least four separate occasions, 
various Committees of the U.S. House of Representatives have 
held hearings on the Administration's proposed rulemaking. Yet, 
despite listening to several hours of questions and answers by 
administration witnesses on the intent of and potential 
benefits of the proposed rulemaking, proponents of H.R. 5078 
continue to mischaracterize this effort.
    For example, the following statements by administration 
witnesses have been made at hearings before this Committee\44\, 
the Committee on Agricultures,\45\ and the Committee on 
Science, Space and Technology.\46\
---------------------------------------------------------------------------
    \44\Hearing of the House Committee on Transportation and 
Infrastructure, Subcommittee on Water Resources and Environment, 
entitled ``The President's Fiscal Year 2015 Budget: Administration 
Priorities for the U.S. Army Corps of Engineers (April 2, 2014) and 
Hearing of the House Committee on Transportation and Infrastructure, 
Subcommittee on Water Resources and Environment, entitled ``Potential 
Impacts of Proposed Changes to the Clean Water Act Jurisdictional 
Rule'' (June 11, 2014).
    \45\Hearing of the House Committee on Agriculture, Subcommittee on 
Conservation, Energy, and Forestry, entitled ``A review of the 
Interpretive Rule regarding the applicability of the Clean Water Act 
agricultural exemptions. June 19, 2014.
    \46\Hearing of the House Committee on Science, Space, and 
Technology, entitled ``Navigating the Clean Water Act: Is Water Wet?'' 
July 9, 2014.
---------------------------------------------------------------------------

Benefits of the proposed Clean Water Act jurisdictional rule

    Testimony: ``[The proposed rule] will increase 
transparency, consistency, and predictability in making 
jurisdictional determinations and reduce existing costs and 
confusion and delays.'' EPA Assistant Administrator, Bob 
Perciasepe (7/9/14)
    Question: What benefit does this proposed rule provide to 
the variability that exists across the country today in 
interpreting the scope of the Clean Water Act?
    Answer: ``[The Corps and EPA have] defined in this proposal 
clear hydrologic science-oriented approaches to determining 
jurisdiction--as opposed to the general one under the current 
regulations, which is will it have an effect on interstate 
commerce. . . . [That's] pretty important, and [it is going to] 
really instruct the field people who do this work, mostly in 
the Army Corps of Engineers, to have a more consistent approach 
and a more consistent sense of how they get the work done. I 
think that is my primary reason why I believe that this 
[proposed rule] would be a significant improvement over the 
existing situation.'' Perciasepe (7/9/14)

Scope of waters covered by the Proposed Rule

    Testimony: ``In adherence with the Supreme Court, [the 
proposed rule] would reduce the scope of waters protected under 
the Clean Water Act compared to the existing regulations on the 
book. It would not assert jurisdiction over any type of waters 
not previously protected over the past 40 years.'' Perciasepe 
(6/11/14)
    Question: Is there any body of water that was not regulated 
by the Clean Water Act in the 30 years it existed prior to the 
two Supreme Court decisions (SWANCC and Rapanos) that would be 
subject to Clean Water Act regulation under the proposed rule?
    Answer: ``No.'' Assistant Secretary of the Army (Civil 
Works), Jo Ellen Darcy (4/2/2014)
    Question: Are there any examples where the proposed rule 
expands the definition of jurisdictional waters that is 
currently the case under the 2008 Bush guidance?
    Answer: ``No.'' Darcy (6/11/14); ``I do [agree with that 
answer]. There is no expansion.'' Perciasepe (6/11/14)
    Question: If the proposed rule is finalized, it would 
protect roughly 3 percent more waters than are protected today, 
but almost 5 percent fewer waters than were protected prior to 
the Supreme Court's 2001 decision. Is that correct?
    Answer: ``Those numbers are correct.'' Darcy (6/11/14)

Types of Waters Specifically Excluded from Coverage under the Proposed 
        Rule

    Question: Can you tell me what waters would definitely no 
longer be regulated by the Federal Government under this 
proposed rule?
    Answer: ``We have a series of exclusions that are defined 
here, and if you would like, I can read those to you. It is 
under section (b)(1) of the definition of the rule. It is 
``waters that are not going to be considered are waste water 
treatments, prior converted cropland, ditches that are 
excavated wholly in uplands, ditches that do not contribute 
flow either directly or through other waters to a water, and 
artificially irrigated areas that would revert to uplands, 
artificial lakes. . . . etc. This whole list. Do you want me to 
continue?'' Darcy (6/11/14)
            Ditches
    Testimony: ``[The proposed rule] would reduce Clean Water 
Act jurisdiction over ditches compared to the previous 2008 
guidance.'' Perciasepe (6/11/14)
    Question: In determining Clean Water Act jurisdiction, 
would the proposed rule assert jurisdiction over fewer ditches 
that is currently the case today under the 2008 Bush 
administration guidance?
    Answer: ``That is correct.'' Darcy (6/11/14)
            Artificial lakes, ponds, puddles, wet depressions and 
                    swimming pools
    Testimony: ``The [proposed] rule does not apply to lands, 
whole flood plains, backyards, wet spots or puddles.'' 
Perciasepe (6/11/14)
    Answer: ``Artificial lakes, ponds, swimming pools; they are 
specifically excluded. We are writing them in the rule.'' 
Perciasepe (6/11/14)
    Question: If a farmer has a small depression area in their 
farm field where water ponds after it rains, are these waters 
subject to Clean Water Act jurisdiction under the proposed 
rule?
    Answer: ``They are not.'' Perciasepe (7/9/14)
            Groundwater
    Answer: ``We explicitly make sure to mention that 
groundwater is not included [within the scope of the proposed 
rule]. Perciasepe (6/11/14)
            Green infrastructure related projects
    Question: Would ``green infrastructure'' and low-impact 
technologies fall within the purview of the proposed rule?
    Answer: ``We don't believe that will happen, and it is not 
our intent.'' Perciasepe (6/11/14)
            Water recycling projects
    Question: Does the waste treatment exemption apply to water 
recycling projects?
    Answer: ``We don't think water recycling projects that are 
existing today are covered [by the Clean Water Act], and we are 
not trying to change that.'' Perciasepe (6/11/14)
            Stormwater
    Answer: ``[We] are not trying to change the stormwater 
rules in this legislation.'' Perciasepe (6/11/14)

Impact of the Proposed Rule on existing agricultural exemptions

    Question: Do the existing farmland exemptions that existed 
in the Clean Water Act and implementing regulations, such as 
for prior converted cropland and irrigation return flows, 
remain within the proposed rulemaking?
    Answer: ``Yes, they do for farming, silviculture, and 
ranching.'' Darcy (4/2/14)
    Answer (2): ``[All] of the existing exemptions for farming, 
silviculture, and ranching in the current Clean Water Act, 
those exemptions remain in place. In addition, we have done an 
interpretative rule with the Department of Agriculture and EPA, 
stating about what additional farming practices would be 
exempt.'' Darcy (4/2/14)

Impact of the Interpretive Rule on Agriculture

    Testimony: ``Under current law, normal farming activities 
are exempt when they are part of an established farming 
operation and do not change the reach or use of waters. Normal 
farming includes things like plowing, cultivating, minor 
drainage, harvesting, and upland soil and water conservation 
practices. The Interpretive Rule does not affect any of those 
existing agricultural exemptions. Indeed, it adds to them, 
making even more room for agriculture. . . . With the 
Interpretive Rule, now an additional 56 conservation practices 
from stream crossings to wetlands enhancement carried out in 
the waters of the United States are no longer subject to 
permitting requirements.'' Under Secretary for Natural 
Resources and Environment, USDA, Robert Bonnie (6/19/14)
    Testimony: ``The Interpretive Rule signals a new 
opportunity for recognizing the value of producers' 
conservation efforts. . . . America's farm and ranch families 
make decisions every day that help to improve and secure our 
water resources. The Interpretive Rule will make those 
decisions and actions a little easier and produce a substantial 
benefit for farms and ranches, their communities and the Nation 
as a whole.'' Bonnie (6/19/14)

Consistency with the rulings of the U.S. Supreme Court

    Question: Would you define ``significant''?
    Answer: ``Significant nexus means that a water, including a 
wetland, either alone or in combination with other similarly-
situated waters in the region in that watershed significantly 
affects the chemical, physical or biological integrity of a 
water identified as a jurisdictional water.'' Darcy (6/11/14)
    Question: Is the definition of ``significant nexus'' in the 
proposed rule wholly within the confines of Justice Kennedy's 
ruling in the Rapanos case?
    Answer: ``That is correct.'' Darcy (6/11/14)
    Question: It is correct that the proposed rule also adheres 
to Justice Scalia's definition of a relatively permanent 
connection to traditional navigable waters?
    Answer: ``That is correct.'' Darcy (6/11/14)
    Question: In the proposed rule, there are two tests for 
asserting potential Clean Water Act jurisdiction--the 
relatively permanent connection test (of Justice Scalia) and 
the significant nexus test (of Justice Kennedy). Is there any 
way in which any aspect of the proposed rule extends 
jurisdiction beyond the four corners of those two definitions?
    Answer: ``No.'' Darcy (6/11/14); ``I do [agree with that 
statement], and, in fact, I would just augment slightly that in 
addition to [those] definitions . . . we actually are using 
this rulemaking to, by rule, exclude certain things. So even 
with that test, some, notwithstanding if they would pass that 
test or not, are excluded.'' Perciasepe (6/11/14)

Floodplains

    Answer: ``We are using the term `floodplain' to try to get 
at the issue of adjacency which has been in a number of the 
Supreme Court cases. But just because it is a floodplain 
doesn't mean that it is jurisdictional. It still would have to 
be a water in the floodplain, you know, standing water or a 
wetland with the hydric soils and the vegetation or an actual 
running stream through a floodplain area . . . I want to be 
really clear that the entire floodplain, which may flood, is 
not jurisdictional.'' Perciasepe (6/11/14)

Reduced risk of litigation

    Question: Do you believe this new rulemaking will create 
fewer lawsuits?
    Answer: ``I do.'' Darcy (6/11/14)

Science

    Testimony: ``[The proposed rule] represents the best peer-
reviewed science about functions and values of the Nation's 
waters.'' Perciasepe (6/11/14)
    Question: Did the Federal agencies consult with EPA's 
Science Advisory Board on the proposed rule?
    Answer: ``The Science Advisory Board will be looking at 
this proposed rule before it goes final . . . we have extended 
the time period for public comment [, among other reasons,] to 
complete the Science Advisory Board's review of some of the 
science documents so that review is out there at the same time 
as the rule-making docket is still open.'' Perciasepe (6/11/14)

Public Comment

    Question: Who may comment on the proposed rule?
    Answer: ``Under the proposed rule, anyone who believes they 
would be impacted by the proposed rule can comment to us.'' 
Darcy (6/11/14)
    Question: Are the Federal agencies committed to listening 
carefully to the objections to the proposed rule, to take them 
into account, and to modify, where appropriate, the ambiguities 
and to clarify? Is that your commitment?
    Answer: ``Yes.'' Darcy (6/11/14); ``Yes.'' Perciasepe (6/
11/14)
    At the same time, while the stated intent of this 
legislation is to block the administration from issuing its 
proposed rule on the scope of Clean Water Act protections, 
enactment of this legislation will lock-in-place the existing 
2008 guidance that, as noted earlier, has been criticized both 
by regulated entities as well as the conservation and 
environmental communities.
    As reported, H.R. 5078 would also create significant legal 
hurdles that would, at a minimum, render future Federal 
rulemaking efforts more difficult and costly and open up 
additional opportunities for litigation and regulatory 
confusion in an area that is already prone to such challenges.
    From their public statements, it is understandable that 
neither the regulated community nor the conservation and 
environmental community believe the 2008 guidance adequately 
addresses the uncertainty raised by the Supreme Court. These 
groups, and others, recognize how the regulatory uncertainty 
created by the 2008 guidance is having adverse impacts both on 
the economy (through confusion, delay, and increased compliance 
costs) as well as the environment, and have called for 
additional administrative clarity. Both groups have publicly 
called on the administration to conduct a formal rulemaking in 
order to clarify the scope of Clean Water Act protections 
following the Supreme Court decisions. In their view, having 
the agencies conduct a rulemaking will provide the general 
public with clear, consistent regulatory standards, based on 
underlying science, that should significantly improve the 
implementation of the Clean Water Act.
    Unfortunately, H.R. 5078 was not drafted to promote 
regulatory clarity, but only perpetuates regulatory 
uncertainty, in contravention to recent efforts by the 
Committee to streamline the project delivery process.
    It seeks to lock-in-place the existing guidance documents 
that have been roundly criticized as causing confusion, adding 
delays, and increasing costs to the American public. It also 
seeks to lock-in-place standards that leave millions of 
waterbodies vulnerable to pollution, jeopardizing countless 
recreational, hunting, fishing opportunities that are 
associated with these waterbodies, as well as the associated 
economic benefits. It also places the public health of over 117 
million Americans at risk of having their drinking water 
sources contaminated.
    Finally, H.R. 5078 needlessly complicates the rulemaking 
process for future administrations, contrary to the wishes of 
both the regulated and conservation and environmental 
communities, among others, and opens the door to increased 
litigation in an already overly-litigious area.
    In short, H.R. 5078 creates more problems than it solves, 
and should be opposed.
            Codifying regulatory confusion and delay and increased 
                    compliance costs
    As introduced, H.R. 5078 carries forward language adopted 
in the 112th Congress that would lock-in-place the use of the 
2008 administration guidance as the final say on how to 
interpret the 2001 and 2006 rulings of the Supreme Court.
    Under this provision, the current and future Federal 
agencies would be prohibited from advancing any future guidance 
or other administrative interpretative documents to provide the 
general public with additional clarity on how the agencies will 
interpret the reach and application of the Clean Water Act--
either to improve the implementation of the guidance or to 
narrow its interpretation.
    More troubling, the provision calls into question the 
ability of the current or future Presidential administrations 
from proceeding with a future notice-and-comment rulemaking to 
define the reach and application of the Clean Water Act--a 
process that has been publicly requested by the regulated 
community, the conservation and environmental organizations, 
and several justices of the U.S. Supreme Court.
    This language creates significant uncertainty how Federal 
agencies would have to proceed with a rulemaking to avoid 
having such rulemaking be vacated under subsection (b) of H.R. 
5078, as ``substantially similar'' to the 2014 proposed rule. 
For example, if any future administration proposes a rulemaking 
that adopts the legal reasoning of Justice Kennedy to examine 
the interrelationship of ``similarly situated [waters] in the 
region,'' could such a rulemaking be stricken down under H.R. 
5078 simple because the concepts proposed in the future 
rulemaking also appeared in the 2014 proposed rule?
    Last Congress, during the Committee markup of similar 
legislation (H.R. 4965, 112th Congress) proponents of that bill 
suggested that the administration should engage in a 
``transparent rulemaking process under the Administrative 
Procedures Act.'' That is exactly what the Obama administration 
did in proposing the 2014 proposed rule. Yet, inexplicability, 
H.R. 5078 would make any future agency rulemaking efforts more 
complicated, more costly, and more susceptible to litigation 
and challenges.

Conclusion

    We recognize that there is a tremendous amount of confusion 
and uncertainty surrounding the reach and application of the 
Clean Water Act, today. Unfortunately, this confusion and 
uncertainty comes with a real cost to the general public.
    First, the confusion and uncertainty has resulted in 
increased compliance costs and delays in implementing projects 
and activities covered by the Act's permitting provisions. In 
addition, the confusion and uncertainty has resulted in the 
loss of Clean Water Act protections for countless waterbodies 
that were covered prior to 2001. This loss of protection has 
left waterbodies that were once protected under Federal law 
vulnerable to potential polluters. The confusion and 
uncertainly has also placed at risk the drinking water sources 
of approximately 177 million Americans that rely on surface 
waters for all or a portion of their drinking water supply.
    Not surprisingly, stakeholders from the regulated 
community, the conservation and the environmental communities, 
as well as members of the Supreme Court, have called on Federal 
agencies to clarify the reach and application of the Clean 
Water Act.
    Clarity is essential to the regulated public so they can 
understand and meet their legal obligations under the Clean 
Water Act, and avoid unnecessary project delays and the 
associated increased compliance costs. Likewise, clarity is 
essential to the American public so they are assured that water 
quality is uniformly protected, regardless of what state or 
region of the country the water is located.
    Yet, H.R. 5078 ignores these demands for clarity, and 
instead proposes to freeze-in-time an existing 2008 guidance 
document that the regulated community has characterized as 
``causing confusion and added delays in an already burdened and 
strained permit decision-making process which ultimately will 
result (and is resulting) increased delays and costs to the 
public at large.''
    This legislation also makes future agency rulemaking 
efforts more complicated, more costly, and more susceptible to 
additional litigation and challenges, which is contrary to 
calls from both the regulated community and conservation and 
environmental organizations for a public rulemaking.
    Prudence demands that the Federal agencies utilize every 
means of the regulatory process available to clarify the 
application and reach of the Clean Water Act in accordance with 
the precedent of the Supreme Court. The Obama administration 
has honored the requests of Congress, the Court, and 
stakeholders from across the spectrum, to initiate a public 
rulemaking to provide this clarity; however, that effort (and 
future efforts) would be stymied by H.R. 5078.
    In our view, H.R. 5078 makes no effort to improve the 
current regulatory process, and, in fact, may make the 
regulatory process more cumbersome and confusing. This 
legislation perpetuates the increased costs and delay 
experienced by the regulated community, as well as the 
confusion and uncertainly felt by the general public whether 
large categories of waterbodies are at increased risk of 
pollution or degradation.
    In our view, this is the wrong approach--both for 
addressing the confusion caused by the Supreme Court decisions 
as well as for achieving the goals of fishable and swimmable 
waters called for in the Clean Water Act.
    For these reasons, we oppose H.R. 5078.

                                   Tim Bishop.
                                   Eleanor Holmes Norton.
                                   Jerrold Nadler.
                                   Donna F. Edwards.
                                   Grace F. Napolitano.

                                  
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