19–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 112–681 

TO PRESERVE EXISTING RIGHTS AND RESPONSIBILITIES WITH RESPECT 

TO WATERS OF THE UNITED STATES, AND FOR OTHER PURPOSES 

SEPTEMBER 20, 2012.—Committed to the Committee of the Whole House on the 

State of the Union and ordered to be printed 

Mr. MICA, from the Committee on Transportation and 

Infrastructure, submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 4965] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Transportation and Infrastructure, to whom 

was referred the bill (H.R. 4965) to preserve existing rights and responsibilities with respect to waters of the United States, and for 

other purposes, having considered the same, report favorably thereon with an amendment and recommend that the bill as amended 

do pass. 

CONTENTS 

Page 

Purpose of the Legislation ...................................................................................... 2 

Background and Need for the Legislation ............................................................. 2 

Hearings ................................................................................................................... 9 

Legislative History and Consideration .................................................................. 10 

Committee Votes ...................................................................................................... 10 

Committee Oversight Findings ............................................................................... 12 

New Budget Authority and Tax Expenditures ...................................................... 12 

Congressional Budget Office Cost Estimate .......................................................... 12 

Performance Goals and Objectives ......................................................................... 13 

Advisory of Earmarks .............................................................................................. 13 

Federal Mandate Statement ................................................................................... 13 

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 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 


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SECTION 1. IDENTIFICATION OF WATERS PROTECTED BY THE CLEAN WATER ACT. 

(a) IN GENERAL.—The Secretary of the Army and the Administrator of the Environmental Protection Agency are prohibited from— 

(1) finalizing, adopting, implementing, administering, or enforcing the proposed guidance described in the notice of availability and request for comments 

entitled ‘‘EPA and Army Corps of Engineers Guidance Regarding Identification 

of Waters Protected by the Clean Water Act’’ (EPA–HQ–OW–2011–0409) (76 

Fed. Reg. 24479 (May 2, 2011)); and 

(2) using the guidance described in paragraph (1), any successor document, 

or any substantially similar guidance made publicly available on or after December 3, 2008, as the basis for any decision regarding the scope of the Federal 

Water Pollution Control Act (33 U.S.C. 1251 et seq.) or any rulemaking. 

(b) RULES.—The use of the guidance described in subsection (a)(1), or any successor document or substantially similar guidance made publicly available on or 

after December 3, 2008, as the basis for any rule shall be grounds for vacating the 

rule. 

PURPOSE OF THE LEGISLATION

The purpose of H.R. 4965 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 and the Army Corps of Engineers 

from finalizing, adopting, implementing, administering, or enforcing proposed guidance the Agencies have developed regarding the 

scope of the Federal Water Pollution Control 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 

the CWA) to ‘‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ The 1972 Amendments significantly changed the approach of the Federal Water Pollution 

Control Act, which can trace its roots back to the Rivers and Harbors Act of 1899, and more immediately to the Water Quality Act 

of 1948. 

Before 1972, the predecessor statutes to the CWA had addressed 

water pollution largely by funding State and municipal wastewater 

treatment systems and by requiring the establishment of State 

water quality standards. This approach had not been sufficiently 

effective in controlling individual discharges of pollution. The 1972 

Amendments aimed to address this problem by instituting a system requiring individual permits for discharges of pollutants to 

navigable waters. 

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 

502(7); 33 U.S.C. § 1362.) As inferred by the definition of ‘‘navigable 

waters’’ in the CWA, a somewhat wider variety of waters than just 

traditional ‘‘navigable in fact’’ waters (which had long been the traditional basis for Federal jurisdiction under previous law) are included under the jurisdiction of the CWA. 

The U.S. Environmental Protection Agency (EPA) has the basic 

responsibility for administering and enforcing most of the CWA, 

and is responsible for implementing the National Pollutant Discharge Elimination System (NPDES) permitting program under 

section 402 of the CWA. Under the NPDES program, it is unlawful 


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for a facility 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 U.S. Army Corps of Engineers (Corps) for implementing the dredge and fill (wetlands) permitting program under section 404 of the CWA. Under the wetlands permitting program, it is unlawful for a facility to discharge 

dredge or fill materials into ‘‘navigable waters,’’ unless the discharge is authorized by and in compliance with a dredge or fill 

(404) permit issued by the Corps. 

The CWA does not contemplate a single, Federally-led water 

quality program. Rather, Congress intended the States and EPA to 

implement the CWA as a Federal-State partnership where the 

States and EPA act as co-regulators. The CWA established a system where States can receive EPA approval to implement water 

quality programs under State law, in lieu of Federal implementation. These States are called ‘‘authorized States.’’ Under the CWA, 

47 States and territories currently have authorized programs. 

Federal jurisdiction under the CWA 

Since enactment of the CWA in 1972, EPA and the Corps (hereinafter, the Agencies) have individually or jointly promulgated several sets of regulations interpreting the Agencies’ jurisdiction over 

‘‘navigable waters.’’ The first of these regulations was promulgated 

by the Corps in 1972, shortly after enactment, and generally limited CWA Section 404 jurisdiction to only traditional navigable 

waters. The EPA’s initial interpretation linked jurisdiction under 

the CWA to waters in or on which activity might affect interstate 

commerce. 

The Agencies later promulgated further sets of regulations, including in 1974, 1975, 1977, 1986, and 1993, which gradually 

broadened the scope of their asserted Federal jurisdiction over 

‘‘navigable waters.’’ In the 1986 publication of regulations, the 

Agencies for the first time explicitly asserted jurisdiction over nonnavigable, isolated, intrastate waters that are or may be used as 

habitat for migratory birds (sometimes referred to as the ‘‘Migratory Bird Rule’’). (51 Fed. Reg. 41,206, 41,217 (Nov. 13, 1986).) 

Today, the Agencies’ regulations assert jurisdiction over a wide 

range of waters in their regulatory definition of ‘‘waters of the 

United States.’’ Such waters include: waters which have been, are 

currently, or may be susceptible to being used in interstate or foreign commerce, including waters which are subject to the ebb and 

flow of the tide; interstate waters including interstate wetlands and 

all other waters such as intrastate lakes, rivers, streams (including 

intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes and natural ponds; the territorial sea; and certain impoundments, tributaries, and wetlands 

adjacent to such waters. (See, e.g., 33 C.F.R. § 328.3, 40 C.F.R. 

§ 230.3(s) for the complete definition in the Agencies’ regulations.) 

Federal jurisdiction under the CWA over ‘‘traditional’’ navigable 

(sometimes referred to as ‘‘navigable-in-fact’’) waters has not been 

in question. However, controversies quickly arose shortly after enactment of the Act in 1972 over whether there is Federal jurisdiction of the CWA over upstream headwaters, isolated waterbodies, 


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intermittent and ephemeral streams, manmade ditches, swales, 

and ponds, and other non-navigable waters, and more generally 

over where the outer limits of Federal jurisdiction lie under the 

CWA. 

Some interests have sought to preserve a balance of power and 

long-term cooperative relationship between the Federal government 

and the States with regard to water management and water quality, and have argued for a limited scope of Federal jurisdiction over 

waterbodies. This would allow States to assert jurisdiction over 

State waters where the Federal interest in those waters is limited 

or nonexistent. 

On the other hand, other interests have argued for an expansive 

(and some, an unlimited) scope of Federal jurisdiction over 

waterbodies, to include most any wet areas, because of their perceived need for a strong Federal, top-down role in regulating activities affecting them. A strong Federal, top-down approach undermines the Federal-State partnership that Congress originally envisioned for implementing the CWA. 

Supreme Court cases on CWA jurisdiction 

There has been a substantial amount of litigation in the Federal 

courts on the scope of CWA jurisdiction over the past nearly 40 

years, including three U.S. Supreme Court cases: • United States v. Riverside Bayview Homes, Inc., 474 U.S. 121 

(Dec. 4, 1985) (‘‘Riverside Bayview’’). • Solid Waste Association of Northern Cook County v. United 

States Corps of Engineers, 531 U.S. 159 (Jan. 9, 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 (June 19, 2006) (collectively referred to as ‘‘Rapanos’’). 

The Supreme Court, in the Riverside Bayview case, found that 

the Corps had acted reasonably in interpreting the Act to require 

permits for the discharge of material into wetlands adjacent to 

other jurisdictional waters of the United States. 

However, both the SWANCC and Rapanos case decisions were 

notable because 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 essentially 

boundless jurisdiction over virtually all waters and wet areas 

around the Nation. 

In the SWANCC case, the Supreme Court rejected the Agencies’ 

claims that use of an isolated waterbody (here, an abandoned sand 

and gravel pit with excavation trenches that had evolved into seasonal and permanent ponds) by migratory birds was sufficient to 

make it a ‘‘water of the United States.’’ 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 response to the SWANCC case, on January 15, 2003, the 

Agencies published an Advance Notice of Proposed Rulemaking on 


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Federal regulatory jurisdiction over isolated waters and an Interim 

Guidance Memorandum for field staff pending completion of the 

proposed rulemaking or the issuance of further interim guidance. 

(68 Fed. Reg. 1991 (Jan. 15, 2003).) The Interim Guidance Memorandum noted that the intent of the guidance was to summarize 

the existing state of the law after the SWANCC case as to what 

waterbodies are subject to Federal jurisdiction under the CWA. 

After soliciting public comment to determine if further regulatory 

clarification was needed, on December 16, 2003, the Agencies announced they would not issue a new rule on Federal regulatory jurisdiction over isolated wetlands. (Press Release, U.S. Army Corps 

of Eng’rs & U.S. Envtl. Prot. Agency, EPA and Corps of Engineers 

Issue Wetlands Decision (Dec. 16, 2003).) The Interim Guidance 

Memorandum remains issued and in effect. 

In the Rapanos case, the Supreme Court overturned the expansive definition of Federal 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, resulting in a split decision. This split decision 

left the Agencies with nonuniform guidelines from the Court as to 

how to interpret the CWA’s jurisdictional scope in the future. While 

the Rapanos Court was divided, the Court recognized that there 

are limits to Federal jurisdiction, and the Agencies’ previous view 

of essentially unbounded jurisdiction under the CWA was unfounded. After Rapanos, the Agencies have had to demonstrate 

whether a water is subject to Federal jurisdiction under the CWA, 

supported by a careful scientific analysis. 

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) (available at http://water.epa.gov/lawsregs/guidance/wetlands 

/upload/2007_6_5_wetlands_RapanosGuidance6507. pdf).) 

On December 2, 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) (available at http://water.epa.gov/ 

lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA_ Jurisdiction_Following_Rapanos120208.pdf).) The guidance was not 

intended to increase or decrease CWA jurisdiction from that as articulated by the Supreme Court in Rapanos, and it did not supersede or nullify the January 2003 guidance, which addressed jurisdiction over isolated waters in light of SWANCC. 

The Agencies’ proposed revised CWA guidance 

In 2010, the Agencies decided to weigh in again on defining the 

scope of Federal jurisdiction under the CWA. In late 2010, the 

Agencies drafted new joint guidance to describe their latest views 


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of Federal regulatory jurisdiction over waters of the United States 

under the CWA and to replace the Agencies’ 2003 and 2008 guidance. 

The draft 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; hereinafter, ‘‘Proposed Guidance’’).) The Agencies’ Proposed Guidance 

purported to describe how the Agencies will 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 Proposed Guidance immediately generated substantial negative reaction, both among stakeholders and within Congress. Criticisms focused on two primary issues: (i) the Proposed Guidance 

would broaden the number and kinds of waters subject to regulation, beyond what the CWA and the Supreme Court’s rulings allow; 

and (ii) the Agencies are implementing policy changes through supposedly non-binding guidance that generally is not reviewable by 

courts, instead of through a formal rulemaking. 

The Agencies acknowledged 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 (available at http://water.epa.gov/lawsregs/guidance /wetlands/upload/wous_guidance_4-2011.pdf).) The Agencies 

also said they intend to expand the applicability of the Proposed 

Guidance beyond section 404, to all other Clean Water Act provisions that use the term ‘‘waters of the United States,’’ including 

sections 402, 401, 311, and 303. (Id.) Further, the Agencies expressly noted that the Proposed Guidance ‘‘will supersede’’ prior interpretations on the scope of ‘‘waters of the United States.’’ (Id. at 

p.1.) 

Because the Proposed Guidance would go beyond merely clarifying the scope of U.S. waters subject to CWA programs, and is 

aimed, as even the Agencies have acknowledged, at increasing the 

scope of the CWA’s jurisdiction over more waters and more provisions of the Act as compared to practices under the currently applicable 2003 and 2008 guidance, the Proposed Guidance would make 

substantive changes in CWA policy that would expand the regulatory powers of the Agencies in implementing the CWA, and 

would expand the regulated community’s regulatory obligations 

under the CWA. 

As a result, many Members of Congress, stakeholders, and even 

States have become extremely concerned that the Proposed Guidance amounts to being a de facto rule instead of mere advisory 

guidelines, and believe that the Agencies are attempting to shortcircuit the process for changing agency policy and the scope of 

CWA jurisdiction without either Congressional action or approval, 

or following the proper, transparent rulemaking process that is dictated by the Administrative Procedure Act (5 U.S.C. 500 et seq.). 

Three separate Congressional letters were sent to the Agencies 

over the past year expressing concern that the Proposed Guidance 


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misconstrues and manipulates the legal standards announced in 

the SWANCC and Rapanos Supreme Court decisions in order to expand the scope of Federal jurisdiction under the CWA, and abuses 

proper administrative process by seeking to change the CWA 

through guidance instead of by a formal rulemaking. 

On April 14, 2011, 170 Members of the U.S. House of Representatives sent a letter to the Agencies stating concerns that the development of a new guidance document that would increase significantly the scope of the CWA’s jurisdiction would amount to a de 

facto rule instead of mere advisory guidelines, and urged the Agencies to not pursue the guidance but instead to conduct a formal 

rulemaking. (See Letter to Lisa P. Jackson, Administrator, U.S. Environmental Protection Agency, and Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works (Apr. 14, 2011) (letter discussed 

a draft of the Proposed Guidance) (available at http://republicans. 

transportation.house.gov/Media/file/112th/Water/2011-04-14-EPA_ Guidance_Letter.pdf).) 

On June 30, 2011, 41 Members of the U.S. Senate sent a letter 

to the Agencies outlining specific concerns with the Proposed Guidance and expressing their concerns that the guidance contained 

clear legal and regulatory consequences that go beyond being simply advisory guidelines, and that changing the legal rights and responsibilities of individuals must be done through a formal rulemaking. The letter went on to request that the Agencies abandon 

any further action on this guidance document. (See Letter to Lisa 

P. Jackson, Administrator, U.S. Environmental Protection Agency, 

and Jo-Ellen Darcy, Assistant Secretary of the Army for Civil 

Works (June 30, 2012) (available at http://epw.senate.gov/public/ 

index.cfm?FuseAction=Files.View&FileStore_id=ec609d07-a036-49e 

8-a8a0-c46652b479bd).) 

On November 8, 2011, a bicameral letter from the House Committee on Transportation and Infrastructure and the Senate Environment and Public Works Committee, the committees of jurisdiction over the CWA, was sent to the Agencies, again insisting that 

the Agencies not finalize the guidance and further requesting that 

they solicit input, through an advance notice of proposed rulemaking, from the general public, scientific communities, and Federal and State resource agencies, to determine the appropriate 

scope of CWA jurisdiction and the range of issues to be covered by 

proposed regulations. (See Letter to Lisa P. Jackson, Administrator, 

U.S. Environmental Protection Agency, and Jo-Ellen Darcy, Assistant Secretary of the Army for Civil Works (Nov. 8, 2012) (available 

at http://republicans.transportation.house.gov/Media/file/112th/ 

Water/110811_Jackson_Darcy_Guidance.pdf).) 

In addition, representatives of State environmental protection 

agencies have expressed concern over the Agencies using interim or 

final guidance as a substitute for regulation or to change or expand 

the effects of regulation. State environmental protection agency 

representatives have urged the Agencies to proceed to formal rulemaking and not to issue or apply the Proposed Guidance in the interim. (See, e.g., 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 


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Waters Protected by the Clean Water Act, Docket ID No. EPA–HQ– 

OW–2011–0409 (July 29, 2011) (available at http://www.regulations 

.gov/#!documentDetail;D=EPA-HQ-OW-2011-0409-3521).) 

Representatives of State environmental protection agencies also 

have urged the Agencies to limit the use of guidance to ‘‘interpretation’’ of their regulations, and not as a substitute for regulation, or 

to change or expand the effects of a regulation, such as adding or 

deleting entities covered by current regulation. (See, e.g., 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).) 

State environmental protection agency representatives believe 

that the Agencies should adhere to the requirements of the Federal 

environmental statutes, the Administrative Procedure Act, and 

their own guidance governing rulemaking to provide for adequate 

public notice and comment on proposed and final actions. (See, e.g., 

ECOS, Policy Resolution Number 11–1.) 

Moreover, many stakeholders have submitted comments to the 

Agencies, expressing concern, among other things, 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 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. (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 (available at http://www.regulations.gov/#!docket 

Detail;dct=FR%252BPR%252BN%252BO%252BSR%252BPS;rpp= 

25;po=0;D=EPA-HQ-OW-2011-0409).) 

Despite the many substantive and administrative process concerns voiced by Members of Congress, State environmental protection agency representatives, and stakeholders regarding the Proposed Guidance, the Agencies decided to move forward towards finalizing and implementing the Proposed Guidance, largely unchanged from the proposed version, and not to conduct a formal 

rulemaking pursuant to the Administrative Procedure Act. 

On February 21, 2012, the Agencies sent to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management 

and Budget, for regulatory review pursuant to Executive Order 

12866, a final guidance document entitled Guidance on Identifying 

Waters Protected by the Clean Water Act (RIN: 2040–ZA11), relating to the identification of waters subject to jurisdiction under the 

CWA (hereinafter, ‘‘Final Guidance’’; available at http://op.bna.com/ 

env.nsf/id/jsun-8s629h/$File/CWA%20guide.pdf). The OIRA notice 

of pending regulatory review of the Final Guidance is available at 

http://www.reginfo.gov/public/do/eoDetails?rrid=121645. 


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The Agencies made some subtle revisions to the guidance, but 

the core of the Final Guidance for determining CWA jurisdiction 

remained largely unchanged from the Proposed Guidance, and 

would continue to assert expanded Federal jurisdiction under the 

CWA as compared to the Agencies’ 2003 and 2008 guidance. 

Because of the continued substantive changes in CWA regulatory 

policy that the Agencies would make with the Final Guidance and 

the Agencies’ continued failure to conduct a formal rulemaking, on 

March 28, 2012, House Committee on Transportation and Infrastructure Chairman John L. Mica, Senate Environment and Public 

Works Committee Ranking Member James M. Inhofe, House Committee on Agriculture Chairman Frank D. Lucas, Senate Committee on Agriculture, Nutrition and Forestry Ranking Member 

Pat Roberts, House Subcommittee on Water Resources and Environment Chairman Bob Gibbs, and Senate Subcommittee on Water 

and Wildlife Ranking Member Jeff Sessions sent a letter to the Administrator of OIRA, Cass R. Sunstein, requesting that the wetlands jurisdictional guidance not be finalized. 

The letter to the OIRA Administrator stated, among other things, 

that ‘‘If the Administration seeks statutory changes to the Clean 

Water Act a proposal must be submitted to Congress for legislative 

action. If the Administration seeks to make regulatory changes, a 

notice and comment rulemaking is required, following the proper, 

transparent rulemaking process that is dictated by the Administrative Procedure Act.’’ (See Letter to Cass R. Sunstein, Administrator of OIRA (Mar. 28, 2012) (available at http://republicans. 

transportation.house.gov/Media/file/112th/Water/ 2012-03- 

28%20_%20Joint%20Letter%20to%20OMB%20re%20CWA%20 

Guidance.pdf), at p.1.) 

After receiving no response from either the OIRA Administrator 

or the Agencies, and no other indication that the Agencies would 

abandon their efforts to finalize their guidance, Chairmen Mica, 

Gibbs, and Lucas, along with House Committee on Transportation 

and Infrastructure Ranking Member Nick J. Rahall II and House 

Committee on Agriculture Ranking Member Collin C. Peterson, 

and Representative Kristi Noem, introduced H.R. 4965 on April 27, 

2012. 

The sponsors of H.R. 4965 introduced this legislation to prohibit 

the Agencies from finalizing, adopting, implementing, administering, or enforcing the Proposed or Final Guidance, or using the 

Proposed or Final Guidance, or any substantially similar guidance, 

as the basis for any decision regarding the scope of the CWA or for 

any rulemaking. Without this legislation, Congress, the States, and 

other stakeholders will not have any assurance that the Agencies 

will not continue in their efforts to implement, through guidance, 

policies to expand the scope of CWA jurisdiction. 

HEARINGS

On March 2, 2011 and March 28, 2012, the Subcommittee on 

Water Resources and Environment held hearings to receive testimony from the EPA on the Agency’s budget and program priorities, 

and their impacts on jobs, liberty, and the economy. Among the 

program priorities the Subcommittee explored in these hearings 

was the Agencies’ efforts and rationale for developing new CWA jurisdictional guidance. On March 8, 2011, the Subcommittee on 


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Water Resources and Environment held a hearing to receive testimony from the Army Corps of Engineers on the Corps’ budget and 

program priorities. Among the program priorities the Subcommittee explored in this hearing was the Corps’ role in developing new CWA jurisdictional guidance. On May 5 and 11, 2011, 

the Subcommittee held hearings to receive testimony from State 

regulators, regulated businesses, economists, and the EPA on 

EPA’s surface mining policies and other related extra-regulatory 

activities. The Subcommittee explored, among other things, the 

EPA’s use of interim or final guidance as a substitute for regulations or to change or expand the effects of regulation, and the need 

for the EPA to conduct a formal rulemaking instead of issuing 

guidance in these circumstances. 

LEGISLATIVE HISTORY AND CONSIDERATION

On April 27, 2012, Committee on Transportation and Infrastructure Chairman John Mica introduced H.R. 4965, ‘‘A Bill to Preserve 

Existing Rights and Responsibilities with Respect to Waters of the 

United States, and for other purposes.’’ On June 7, 2012, the Committee on Transportation and Infrastructure met in open session to 

consider H.R. 4965, and ordered the bill reported favorably to the 

House by recorded vote with a quorum present. The vote was 33 

yeas to 18 nays. 

An amendment was offered in Committee by Chairman Bob 

Gibbs, which was adopted by voice vote. The amendment aimed to 

clarify that the current effective status of the Agencies’ 2003 and 

2008 CWA guidance was to be preserved. The amendment provided 

that the bill’s prohibition of using the guidance as the basis for any 

decision regarding the scope of the Clean Water Act or any rulemaking included the use of any successor document, or any substantially similar guidance made publically available on or after 

December 3, 2008. 

Delegate Eleanor Holmes Norton also offered an amendment that 

would have exempted the bill from applying to any waters used as 

or affecting public drinking water supplies. Ranking Member 

Rahall objected to the amendment by raising a point of order on 

the grounds that issues relating to drinking water fall under the 

Safe Drinking Water Act and, thus, under the jurisdiction of the 

House Committee on Energy and Commerce. Chairman Mica 

upheld the objection that the amendment was not germane. 

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. 

4965, a total of one recorded vote was taken, ordering the bill reported as amended. The bill, as amended, was ordered favorably reported to the House by a vote of 33 Ayes and 18 Nays. 


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COMMITTEE OVERSIGHT FINDINGS

Pursuant to clause 3(c)(1) of rule XIII of the Rules of the House 

of Representatives, the Committee on Transportation and Infrastructure’s oversight findings and recommendations are reflected in 

this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

In compliance with clause 3(c)(2) of rule XIII of the Rules of the 

House of Representatives, the Committee adopts as its own the estimate of new budget authority, entitlement authority, or tax expenditures or revenues contained in the cost estimate prepared by 

the Director of the Congressional Budget Office pursuant to section 

402 of the Congressional Budget Act of 1974, included below. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

With respect to the requirement of clause 3(c)(3) of rule XIII of 

the Rules of the House of Representatives and section 402 of the 

Congressional Budget Act of 1974, the Committee has received the 

following cost estimate for H.R. 4965 from the Director of the Congressional Budget Office: 

U.S. CONGRESS, CONGRESSIONAL BUDGET OFFICE, Washington, DC, June 20, 2012. 

Hon. JOHN L. MICA, 

Chairman, Committee on Transportation and Infrastructure, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 4965, a bill to preserve 

existing rights and responsibilities with respect to waters of the 

United States, and for other purposes. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Susanne S. Mehlman. 

Sincerely, 

DOUGLAS W. ELMENDORF. 

Enclosure. 

H.R. 4965—A bill to preserve existing rights and responsibilities 

with respect to waters of the United States, and for other purposes 

H.R. 4965 would prohibit the Environmental Protection Agency 

(EPA) and the Army Corp of Engineers (Corps) from finalizing or 

implementing guidance provided in the document entitled ‘‘EPA 

and Army Corps of Engineers Guidance Regarding Identification of 

Water Protected by the Clean Water Act.’’ That document was sent 

to the Office of Management and Budget for regulatory review earlier this year. Enacting this legislation also would prohibit those 

federal agencies from using similar guidance as the basis for any 

decision regarding the scope of the Clean Water Act’s jurisdiction 

or in any rulemaking activities. 

Based on information from EPA and the Corps, CBO expects that 

implementing this legislation would have no significant impact on 

the budget because the bill would not prohibit the agencies from 

using existing guidelines (predating the proposed guidance or any 


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13 

similar guidance) to determine whether waters and wetlands are 

protected under the Clean Water Act. Pay-as-you-go procedures do 

not apply to H.R. 4965 because enacting the bill would not affect 

direct spending or revenues. 

H.R. 4965 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act. 

The CBO staff contact for this estimate is Susanne S. Mehlman. 

This estimate was approved by Peter H. Fontaine, Assistant Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

With respect to the requirement of clause 3(c)(4) of rule XIII of 

the Rules of the House of Representatives, the performance goals 

and objectives of this legislation are to reduce regulatory burdens 

that would be caused by the Agencies finalizing, adopting, implementing, administering, or enforcing guidance that would expand 

the scope of Federal regulatory jurisdiction under the Clean Water 

Act. 

ADVISORY OF EARMARKS

In compliance with clause 9 of rule XXI of the Rules of the House 

of Representatives, H.R. 4965 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. 

FEDERAL MANDATES STATEMENT

The Committee adopts as its own the estimate of Federal mandates prepared by the Director of the Congressional Budget Office 

pursuant to section 423 of the Unfunded Mandates Reform Act 

(Public Law 104–4). 

PREEMPTION CLARIFICATION

Section 423 of the Congressional Budget Act of 1974 requires the 

report of any Committee on a bill or joint resolution to include a 

statement on the extent to which the bill or joint resolution is intended to preempt State, local, or tribal law. The Committee states 

that H.R. 4965 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. Identification of waters protected by the Clean Water Act 

Subsection (a) 

The Committee is opposed to changes to the scope and meaning 

of the Clean Water Act, which the Agencies seek to implement 


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through the administrative means of issuing what the Agencies 

label as ‘‘guidance.’’ The intent of the Committee with H.R. 4965 

is to prohibit the Agencies from finalizing or implementing the 

Agencies’ proposed guidance in order to significantly broaden the 

scope of Federal jurisdiction under the Clean Water Act. 

In this regard, Section 1(a) of H.R. 4965 (‘‘In General’’) prohibits 

the Secretary of the Army and the Administrator of the Environmental Protection Agency (hereinafter, the ‘‘Agencies’’) from taking 

any actions with respect to the Agencies’ proposed guidance to 

identify waters protected by the Clean Water Act. The actions prohibited are further specified in paragraphs (1) and (2) of subsection 

(a). 

Paragraph (1) of Section 1(a) prohibits the Agencies from finalizing, adopting, implementing, administering, or enforcing the proposed guidance described in the Agencies’ notice of availability and 

request for comments entitled EPA and Army Corps of Engineers 

Guidance Regarding Identification of Waters Protected by the Clean 

Water Act. The notice was published on May 2, 2011, in Volume 76 

of the Federal Register at page 24,479 (No. 84). The docket identification number for the proposed guidance discussed in the notice 

is: EPA-HQ-OW–2011–0409. The proposed guidance referred to in 

the notice is entitled ‘‘Draft Guidance on Identifying Waters Protected by the Clean Water Act’’ (hereinafter, ‘‘Proposed Guidance’’). 

This paragraph is intended to prevent the Agencies from skirting 

the law and abusing proper administrative process by prohibiting 

the Agencies from finalizing the Proposed Guidance, or in any way 

using the Proposed Guidance, including adopting, implementing, 

administering, or enforcing the Proposed Guidance, for any purpose 

whatsoever. The bill prohibits the Agencies from finalizing or implementing the Proposed Guidance because of the concerns that the 

Proposed Guidance would broaden the number and kinds of waters 

subject to regulation, beyond what the CWA and the Supreme 

Court’s rulings allow, and that the Agencies are implementing substantive policy changes through supposedly non-binding guidance 

that generally is not reviewable by courts, instead of through a formal rulemaking. 

Paragraph (2) of Section 1(a) expands on the prohibition in paragraph (1) by prohibiting the Agencies from using the Proposed 

Guidance described in paragraph (1) of subsection 1(a), or any successor document, or any substantially similar guidance made publicly available on or after December 3, 2008, as the basis for any 

decision regarding the scope of the Federal Water Pollution Control 

Act or as the basis for any rulemaking. 

This paragraph is intended to prevent the Agencies from attempting to use, either directly or indirectly, the Proposed Guidance as the basis for any regulatory or other decision regarding the 

scope or applicability of the Clean Water Act. This includes any decision regarding whether any permitting or other regulatory requirement under any section of the Clean Water Act (including sections 404, 402, 401, 311, 303, and 301) applies to a particular activity, circumstance, discharge, or water. 

This paragraph is also intended to prevent the Agencies from attempting to use, either directly or indirectly, the Proposed Guidance or any of the guidelines, interpretations, clarifications, considerations, or understandings contained in the guidance, as the basis 


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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 guidance as the basis for any decision regarding the scope 

of the Clean Water Act or any rulemaking, as discussed in the preceding paragraphs. Any successor document or any substantially 

similar guidance includes any earlier drafts of the Proposed Guidance developed prior to May 2, 2011, or any potential future 

versions of the Proposed Guidance, or of related or similar 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 Guidance. 

The Committee adopted a clarifying change to the language in 

paragraph (2) in a Committee meeting held on June 7, 2012, to 

make it clear that the Committee intends to maintain a regulatory 

status quo under the Clean Water Act by preserving the current 

effective status of the Agencies’ 2003 and 2008 Clean Water Act 

guidance regarding the scope of jurisdiction under the Act. The 

change clarified that the bill’s prohibition on the use of ‘‘any substantially similar guidance’’ regarding the scope of the Federal 

Water Pollution Control Act or as the basis for any rulemaking 

means the use of ‘‘any successor document, or any substantially 

similar guidance made publicly available on or after December 3, 

2008.’’ The Agencies’ Interim Guidance Memorandum issued after 

the SWANCC decision was dated December 16, 2003 and the Agencies’ updated interpretative guidance on how to implement the 

Rapanos decision was dated December 2, 2008. Hence, the Agencies’ 2003 and 2008 Clean Water Act guidance would be preserved 

and remain in effect under the bill. 

Subsection (b) 

Section 1(b) of the bill (‘‘Rules’’) states that use of the Proposed 

Guidance, or any successor document, or any substantially similar 

guidance made publicly available on or after December 3, 2008, as 

the basis for any rule shall be grounds for vacating the rule. This 

subsection reinforces the prohibition in Section 1(a)(2) against the 

use of the Proposed Guidance, or of any successor document or any 

substantially similar guidance, as the basis for any rulemaking. 

This subsection is intended to provide grounds for a party challenging the validity of a rule or a provision in a rule to vacate the 

rule if the Proposed Guidance, or any successor document or any 

substantially similar guidance (including any of the guidelines, interpretations, clarifications, considerations, or understandings contained in the Proposed Guidance, successor document, or substantially similar guidance), was used as the basis for the rule or a provision in the rule. 

The Committee adopted a clarifying change to the language of 

subsection (b) in a Committee meeting held on June 7, 2012, to 

make it clear that the Committee intends to preserve the current 

effective status of the Agencies’ 2003 and 2008 Clean Water Act 

guidance and to allow for the development of rules based on the 

2003 and 2008 guidance. The change clarified that grounds for 


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vacating a rule as a result of the use of ‘‘any substantially similar 

guidance’’ as the basis for the rule means the use of ‘‘any successor 

document, or any substantially similar guidance made publicly 

available on or after December 3, 2008.’’ (As noted earlier, the 

Agencies’ Interim Guidance Memorandum issued after the 

SWANCC decision was dated December 16, 2003 and the Agencies’ 

updated interpretative guidance on how to implement the Rapanos 

decision was dated December 2, 2008. Hence, the Agencies’ 2003 

and 2008 Clean Water Act guidance would be preserved and remain in effect under the bill.) 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

Clause 3(e) of rule XIII of the Rules of the House of Representatives (the Ramseyer Rule) requires that changes in existing law 

made by a bill, as reported, be shown. If enacted, H.R. 4965 would 

not repeal or amend any statute or part thereof. 


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1See 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). 

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. Yet, while all parties would benefit from (and many are 

demanding) greater clarity, the Committee on Transportation and 

Infrastructure now reports this bill (H.R. 4965) 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 the 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), 


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2See Advance Notice of Proposed Rulemaking on the Clean Water Act Regulatory Definition 

of ‘‘Waters of the United States’’, Joint Memorandum, 68 Fed. Reg. 1991, 1995 (January 15, 

2003); EPA and Army Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction 

after Rapanos, 72 Fed. Reg. 31824 (June 8, 2007); and Clean Water Act Jurisdiction Following 

the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, 

located at <http://water.epa.gov/lawsregs/guidance/wetlands/upload/2008_12_3_wetlands _CWA_Jurisdiction_Following_Rapanos120208.pdf>. 3See EPA and Corps Memorandum, entitled ‘‘Supreme Court Ruling Concerning CWA Jurisdiction over Isolated Waters,’’ dated January 19, 2001, located at <http:// 

www.spn.usace.anny.mil/regulatory/misc/swancc.pdf>. 4The 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. 5See 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). 

under both Republican 2 and Democratic 3 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. Indeed, many Federal agencies, including EPA and the Corps, 

have for decades used administrative guidance to facilitate the interpretation and implementation of Federal laws. In fact, today, 

Federal agency decisions on the application and reach of the Act 

continue to be guided by a 2008 guidance document issued under 

the Bush administration. 

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 majority of permit applicants under section 404 would 

rather concede Clean Water Act jurisdiction 4 than maneuver 

through the formal process for determining whether a waterbody 

may (or may not) be covered by the Act. 

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 [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) in increased delays 

and costs to the public at large.’’ 5

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. 

Yet, H.R. 4965 inexplicitly moves in the opposite direction, as 

this legislation would be in direct contravention to the Committee 

leadership’s recent efforts to streamline project delivery in the Surface Transportation reauthorization bill. Instead of streamlining 


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project delivery, this legislation would perpetuate the regulatory 

confusion and uncertainly (and related increases in compliance 

costs) in place today. 

H.R. 4965 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. 4965 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. 4965 be enacted, this legislation will: • Perpetuate the increased permitting costs to the regulated 

community, including construction project sponsors, municipalities, industrial dischargers, and landowners; • Add unnecessary delay (and increased costs) to project 

sponsors as they struggle to figure out what the rules may be 

across the nation; • Increase the costs of compliance and oversight for States; • Increase the potential for litigation on the applicability 

and reach of the Clean Water Act; and • Abandon 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. 4965 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. 

We cannot support this legislation. In our view, neither the regulated community nor the general public can logically benefit from 

passage of H.R. 4965. 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. 

Instead, H.R. 4965 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. 

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 


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6The 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.’’ 7During 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. 8See Advanced Notice of Proposed Rulema1cing on the Clean Water Act Regulatory Definition 

of ‘‘Waters of the United States’’, 68 Fed. Reg. 1991 (January 15, 2003). 

further defined the term ‘‘waters of the United States’’ by regulation.6

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.7

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 8 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. 

Yet, in years that have passed since these court decisions, stakeholders from both the regulated community and the conservation 


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9 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). 10 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). 11 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). 12 Comments of Ducks Unlimited, submitted July 20, 2011, (Docket No. EPA–HQ–OW–2011– 

0409). 13 Comments of the Waters Advocacy Coalition, submitted July 29, 2011, (Docket No. EPA– 

HQ–OW–2011–0409). 14See 76 Fed. Reg. 24479 (May 2, 2011). The text of the draft guidance is electronically available at <http://water.epa.gov/lawsregs/guidance/wetlands/upload/wous_guidance_4-2011.pdf> 

(hereinafter Proposed 2011 Guidance). 15See 72 Fed. Reg. 31824 (June 8, 2007). 

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.’’ 9

• ‘‘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.’’ 10

• ‘‘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.’’ 11

• ‘‘[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 lons expressed a strong desire 

for greater certainty and clearer processes since SWANCC . . .’’ 12

• ‘‘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] justification.’’ 13

On May 2, 2011, EPA and the Corps attempted to provide greater certainty on the reach and application of the Clean Water Act. 

On that date, both agencies published in the Federal Register, proposed revisions to 2008 guidance, and provided a 60-day period for 

public comment on the proposed changes.14 (In contrast, when the 

Bush administration published its initial 2007 guidance, it made 

the guidance ‘‘effective immediately,’’ and provided a concurrent 

comment period to ‘‘solicit input on early experience with implementing the guidance.’’) 15


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16See 76 Fed. Reg. 39101 (July 5, 2011). 17The 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). 18See 72 Fed. Reg. 31824, 31825 (June 8, 2007). 19See 76 Fed. Reg. 24479 (May 2, 2011). 

On July 5, 2011, EPA and the Corps extended the public comment period on the proposed 2011 guidance for an additional 30 

days.16

In the same Federal Register notice, EPA and the Corps announced their intention to undertake a subsequent notice-and-comment rulemaking ‘‘to further clarify which waters are subject to 

[Clean Water Act] jurisdiction, consistent with the Supreme Court 

decisions.’’ 

Comparison between current 2008 guidance and 2011 proposed 

guidance 

In order to understand the legal context in which H.R. 4965 is 

being considered, it is also important to compare the existing guidance documents with the 2011 proposed guidance. 

While the rhetoric surrounding the 2011 proposed guidance may 

suggest otherwise, generally speaking, the 2008 guidance and the 

2011 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 2011 proposed guidance 

Both guidance documents 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 17 and 2006 decisions of the Supreme Court on this 

issue. Both guidance documents state that they are intended to address the ‘‘uncertainty’’ and permitting delays 18 that have resulted 

from the Supreme Court decisions, and to improve ‘‘predictability 

and clarity regarding the scope of ‘waters of the United States’ ’’.19

Both documents also describe the process of 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 and proposed 2011 guidance documents also provide a 

strikingly similar list of waterbodies where Clean Water Act proVerDate Mar 15 2010 06:15 Sep 25, 2012 Jkt 019006 PO 00000 Frm 00022 Fmt 6604 Sfmt 6604 E:\HR\OC\HR681.XXX HR681

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20See 76 Fed. Reg. 24479 (May 2, 2011). 21See Rapanos v. United States, 547 U.S. 715, 780 (2006). 

tections are applied. For example, under both the 2008 and proposed 2011 guidance documents, the agencies: 

• Will assert Clean Water Act jurisdiction over the following 

waters: 

» Traditionally navigable waters; 

» Wetlands adjacent to traditionally navigable waters; 

» Non-navigable tributaries to traditionally navigable 

waters that are relatively permanent; and 

» Wetlands that directly abut relatively permanent waters. 

• Will decide jurisdiction if a fact-specific analysis determines 

they have a ‘‘significant nexus’’ to a traditionally navigable water: 

» Tributaries (including tributaries that are non-navigable 

and not relatively permanent); and 

» Adjacent wetlands (including adjacent wetlands to nonnavigable tributaries that are not relatively permanent, and 

wetland adjacent to by that do not directly abut a relatively 

permanent non-navigable tributary). 

• Will consider the following areas as generally not jurisdictional 

waters (and therefore, not protected by the Clean Water Act): 

» Erosional features (gullies and rills), swales, and ditches. 

Differences between 2008 guidance and 2011 proposed guidance 

The clarifying changes to the 2008 guidance included in the 2011 

proposed guidance are intended 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 principles established by the Supreme Court cases and . . . supported by the agencies’ scientific 

understanding of how waterbodies and watersheds function.’’ 20

‘‘Similarly Situated in the Region’’ analysis 

One critical clarification contained in the 2011 proposed guidance 

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’ ’’.21

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 

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22See 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). 23See 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). 24See 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.gov/oigireports/2009/20090430-09-N0149.pdf>. 25See Proposed 2011 Guidance at 7–8. For waters to be ‘‘similarly situated,’’ they must be 

of the same resource type, specifically (a) tributaries; (b) adjacent wetlands; or other waters that 

are in close physical proximity to traditionally navigable waters, interstate waters, or their jurisdictional tributaries (‘proximate other waters’)’’. For waters to be ‘‘in the region,’’ they must 

fall within the same watershed. For waters to have a significant nexus, they ‘‘alone or in combination with other similarly situated waters in the same watershed have an effect on the chemlands) and the ecological and hydrological values (including nutrient reduction and food control) provided by these waters.22

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.’’ 23

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 by the 

regulated community (and the Federal and State agencies) in order 

to demonstrate a significant nexus.24 This Committee has received 

numerous reports and Congressional testimony on the associated 

costs and project delays from this process. 

In contrast, the proposed 2011 guidance generally authorizes 

agency field staff to assess whether a waterbody has a significant 

nexus, where the waterbody ‘‘either alone or in combination with 

similarly situated waters in the region, significantly affects the 

chemical, physical, or biological integrity of traditionally navigable 

waters or interstate waters.’’ 25


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ical, physical, or biological integrity of traditionally navigable waters or interstate waters that 

is more than ‘speculative or insubstantial.’ ’’ (emphasis added). 26See Proposed 2011 Guidance at 9. 27See U.S. EPA, ‘‘Potential Indirect Economic Impacts and Benefits Associated with Guidance 

Clarifying the Scope of Clean Water Act Jurisdiction’’ (April 27, 2011) (located at <http:// 

water.epa.gov/lawsregs/guidance/wetlands/upload/cwa_guidance_impacts_benefits.pdf>). 28See 531 U.S. 159, 174 (2001). 29See 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. 

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. However, the 2011 

proposed guidance provides that agency field staff must independently document whether the waterbody is, in fact, jurisdictional 

‘‘without cross-reference to other files, including an explanation of 

which waters were considered together as similarly situated and in 

the same region.’’ 26

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.27 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 2011 guidance is 

what analysis EPA or the Corps must utilize to apply Clean Water 

Act protections over 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.28

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).’’ 29

Similarly, in 2003, the Bush administration issued guidance 

which restated the holding of the 2001 Supreme Court decision 

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30See 68 Fed. Reg. 1995, 1996 (January 15, 2003). 31 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), mudfiats, 

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.’’ 32See 68 Fed. Reg. 1995, 1996 (January 15, 2003). 33See 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. 34See 68 Fed. Reg. 1995, 1996 (January 15, 2003). 35See 547 U.S. 715, 759 (2006). 36See Proposed 2011 Guidance at 20. According to the proposed guidance, the Federal agencies may reevaluate whether to use similarly situated waters, in the region, as a basis for asdiction 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’ ’’.30 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 328.3(a)(3)(i)–(iii),31

[but] field staff should seek formal project-specific Headquarters 

approval prior to asserting jurisdiction over such waters.’’ 32

The proposed 2011 guidance restates the understanding of both 

the Clinton and Bush administration guidance documents that the 

Clean Water Act protections can continue to apply to isolated, nonnavigable, intrastate waters, such as those listed in 33 CFR 

328.3(a)(3). However, where the proposed 2011 guidance 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’’ 33 or ‘‘formal 

project-specific Headquarters approval’’ 34—the proposed 2011 guidance clarifies that agency staff must use the ‘‘significant nexus’’ 

standard for asserting jurisdiction over isolated, non-navigable, 

intrastate waters. 

Under the proposed 2011 guidance, an ‘‘ ‘other water’ is jurisdictional only if it both has a significant nexus to a traditional navigable water or interstate water and meets the regulatory definition.’’ This 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.’’ 35

However, unlike the significant nexus test articulated above for 

tributaries and adjacent waters or wetlands, the proposed 2011 

guidance directs agency field staff to generally conduct significant 

nexus analyses for other waters that are not physically proximate 

to jurisdictional waters, individually, ‘‘unless there is a compelling 

scientific basis for treating a group of such waters as similarly situated waters in the same region.’’ 36 In addition, the proposed 2011 


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serting Clean Water Act jurisdiction over other waters that are not physically proximate to jurisdictional waters through a rulemaking. 37See Proposed 2011 Guidance at 20. 38See Proposed 2011 Guidance at 20. 39See 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. 40See Proposed 2011 Guidance at 24, citing FPL Energy Marine Hydro L.L.C. v. FERC, 287 

F. 31.d 1151, 1157 (D.C. Cir. 2002) and Alaska v. Ahtna, Inc., 891 F. 2d 1401, 1405 (9th Cir. 

1989). 

guidance states that ‘‘consideration of use by migratory species is 

not relevant to the significant nexus determination for such 

waters.’’ 37

In addition, the proposed 2011 guidance retains the current practice of requiring field staff to refer Clean Water Act jurisdictional 

determinations for isolated, non-navigable, intrastate waters to 

their ‘‘respective Headquarters and obtaining formal project-specific 

approval for asserting or denying jurisdiction.’’ 38

Traditionally navigable waters and interstate waters 

Another change in the 2011 guidance addresses the definition 

and jurisdictional status of ‘‘traditionally navigable waters’’ and 

‘‘interstate waters’’. 

Both the 2008 guidance and the proposed 2011 guidance authorize the agencies to assert Clean Water Act jurisdiction over traditionally 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),39 including commercial water-borne 

recreation. 

However, the 2008 guidance and the 2011 proposed guidance 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.’’ 40 Accordingly, 

the 2011 proposed guidance clarifies that such a determination 

need not 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. 

In addition, the proposed 2011 guidance clarifies Clean Water 

Act jurisdiction over interstate waters, and authorizes field staff to 

find interstate waters (and their tributaries), as well as waterbodies with a significant nexus to interstate waters, subject to 

Clean Water Act protections. 

Scope of Clean Water Act authorities affected by Supreme Court decisions 

The proposed 2011 guidance 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 


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41See 68 Fed. Reg. 1995, 1996 (January 15, 2003). 

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 2011 proposed guidance 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.’’ 41

However, this clarification brings agency guidance 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 proposed 2011 

guidance contain a list of waters that are generally not protected 

by the Clean Water Act, including erosional features (gullies and 

rills), swales, and ditches. 

Yet, the proposed 2011 guidance document expands the list of 

waters and aquatic areas that will generally not be protected by 

the Clean Water Act. Under the proposed 2011 guidance, the following waters and aquatic areas are generally not protected by the 

Clean Water Act: 

• Wet areas that are not tributaries or open waters and do 

not meet the agencies’ regulatory definition of ‘‘wetlands’’; 

• Waters excluded from coverage under the Clean Water Act 

by existing regulations; 

• Waters that lack a significant nexus where one is required 

for a water to be protected by the Clean Water Act; 

• Artificially irrigated areas that would revert to upland 

should irrigation 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; 


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• Water-filled depressions created incidental to construction 

activity; • Groundwater drained through subsurface drainage systems; and • Erosional features (gullies and rills), and swales and 

ditches that are not tributaries or wetlands. 

This list of waters and aquatic areas that are, generally, not considered protected by the Clean Water Act provides greater clarity 

to the regulated community and the general public as to which 

waters may be subject to the Clean Water Act permitting requirements. 

H.R. 4965, 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. 

At the same time, the potential impacts of H.R. 4965 are largely 

unknown, as the Committee chose to move this bill directly to 

markup with no hearings on its potential impacts to the regulated 

community or public health and the environment. 

For example, while the stated intent of this legislation is to block 

the administration from issuing its proposed guidance 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. 4965 would also create significant legal hurdles 

that would, at a minimal, render future Federal rulemaking efforts 

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. 4965 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 

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portunities 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. 4965 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. 4965 creates more problems than it solves, and 

should be opposed. 

Codifying Regulatory Confusion and Delay and Increased Compliance Costs: Amendment adopted during Committee markup: 

As introduced, H.R. 4965 have would prohibited the EPA Administrator or the Secretary of the Army (acting through the Corps) 

from ‘‘finalizing, adopting, implementing, or enforcing’’ the draft 

2011 guidance, or from using such guidance ‘‘or any substantially 

similar guidance’’ as the basis for any decision regarding the scope 

of the Act or any rulemaking. An amendment was adopted at 

markup to replace the phrase ‘‘or any substantially similar guidance’’ and with the phrase ‘‘any successor document, or any substantially similar guidance made publicly available on or after December 3, 2008.’’ 

This amendment 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 the amendment, 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 amendment 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 

publically requested by the regulated community, the conservation 

and environmental organizations, and several justices of the U.S. 

Supreme Court. 

The amendment 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. 4965, as 

‘‘substantially similar’’ to the proposed 2011 guidance. 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 struck down under H.R. 4965 simply because the concepts proposed in the future rulemaking also appeared in the proposed 2011 guidance? 

During the Committee markup of H.R. 4965, proponents of H.R. 

4965 suggested that the administration should engage in a ‘‘transparent rulemaking process under the Administrative Procedures 

Act.’’ Contrary to statements otherwise, EPA and the Corps have 


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31 

42See 76 Fed. Reg. 24479 (May 2, 2011). 43See <http://water.epa.gov/lawsregs/guidance/wetlands/surface_drinking_water_index.cfm>. 44 According to a comprehensive study conducted by the Environmental Law Institute, individual states have not uniformly responded to the decisions of the Supreme Court to assert 

State protections over waters that were once protected by the Federal Clean Water Act. As a 

result, the report identifies several categories /types of waterbodies where neither Federal nor 

Continued 

already announced 42 their expectation to propose such a rulemaking in the future. Yet, inexplicability, H.R. 4965, as amended, 

would make any future agency rulemaking efforts more complicated, more costly, and more susceptible to litigation and challenges. 

Protecting the Drinking Water for 117 Million Americans: Amendment offered by Delegate Eleanor Holmes Norton: 

During Committee consideration of H.R. 4965, a second amendment was offered by the Delegate from the District of Columbia, 

Ms. Norton, which would have ensured that Americans can continue to depend on surface waters for clean, safe, and reliable 

drinking water. 

In 2009, EPA conducted a survey 43 to determine where many 

Americans obtain their drinking water, and whether the 2001 and 

2006 decisions of the Supreme Court placed any of these sources 

at risk of pollution or degradation. 

The results were shocking—in the continental U.S., approximately 117 million people, over one third of the total U.S. pollution, 

get some or all of their drinking water from public drinking water 

systems that rely at least in part on intermittent, ephemeral, or 

headwater streams—the very same waters where Clean Water protections have been called into question as a result of the Supreme 

Court decisions and the 2008 guidance. 

As a result, approximately 94 percent of the U.S. population who 

are served by public drinking water systems now face the possibility that the rivers and streams that they rely on for their drinking water can be polluted without any Federal Clean Water Act 

protections, as a result of the 2001 and 2006 decisions of the Supreme Court, and the narrow reading of these cases advanced by 

the Bush administration guidance. 

For example, in the state of New York, 97 percent of New Yorkers (or 11.4 million individuals) served by public water systems rely 

on the very same waters where protection has been called into 

question by the actions of the Supreme Court and the Bush administration. 

A state-by-state breakdown of the number and percentage of surface drinking water provided by intermittent, ephemeral, and headwater streams is included at the end of these dissenting views. 

H.R. 4965, as amended, perpetuates the likelihood that the 

drinking water supplies of millions of Americans could be contaminated by unscrupulous polluters, without any Federal protections, 

whatsoever. 

A common response to the threats to drinking water sources created by H.R. 4965 is that individual States could step in and 

choose to protect their own waters if they find these waters worthy 

of protection. Yet, in light of the current fiscal situation being faced 

by the States, this seems like an unlikely outcome.44 However, 


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State protections may currently be in place. This report is available at <http://www.elistore.org/ 

Data/products/d21-06.pdf>. 

even if some States were to try and fill in the gap, nothing in H.R. 

4965 would prevent states that place a higher value on promoting 

industry development from allowing increased pollution to emanate 

from their borders and contaminate their downstream neighbors. 

That is exactly the situation that existed prior to the enactment of 

the 1972 Clean Water Act, and one that could easily return should 

this legislation be enacted. 

The Norton amendment would have recognized the unique Federal interest in ensuring that the drinking water sources of over 

117 million Americans warrant enhanced protection. It would have 

allowed the Federal agencies to take additional steps to protect 

those waterbodies where Clean Water Act protections have been 

lost or called into question as a result of the two Supreme Court 

decisions (as well as the interpretations of these cases by the 2008 

guidance). Finally, it would have reiterated that Congress has a responsibility for ensuring that our constituents have clean, safe, and 

reliable drinking water supplies. 

Unfortunately, the Chairman of the Committee ruled the Norton 

amendment as not germane to H.R. 4965, and the amendment was 

not made in order. 

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 uncertainty 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. 4965 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 

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sion-making process which ultimately will result (and is resulting) 

in 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. 

In our view, H.R. 4965 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 uncertainty 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. 4965. 

TIM BISHOP. 

MAZIE K. HIRONO. 

DONNA F. EDWARDS. 

ELEANOR HOLMES NORTON. 


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45See ‘‘Analysis of the Surface Drinking Water Provided by Intermittent, Ephemeral, and 

Headwater Streams in the U.S.’’, found at <http://water.epa.gov/lawsregs/guidance/wetlands/ 

surface_drinking_water_index.cfm>. 

State-by-State Breakdown of Surface Drinking Waters Provided by 

Intermittent, Ephemeral, and Headwater Streams (IEH): 45

National Totals: 

• Total Population Served by Public Drinking Water Systems 

(PDWS) using Surface Water: 124,364,960 

• National Population Dependant on PDWS Relying on IEH 

Streams: 117,447,743 

• Percentage of National Population Dependant on PDWS Relying on IEH Streams: 94 percent 

Alabama: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 2,705,859 

• State Population Dependant on PDWS Relying on IEH 

Streams: 2,681,327 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99 percent 

Arizona: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 3,254,601 

• State Population Dependant on PDWS Relying on IEH 

Streams: 3,254,601 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Arkansas: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 948,185 

• State Population Dependant on PDWS Relying on IEH 

Streams: 941,225 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99 percent 

California: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 7,320,360 

• State Population Dependant on PDWS Relying on IEH 

Streams: 7,314,715 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.92 percent 

Colorado: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 3,866,332 

• State Population Dependant on PDWS Relying on IEH 

Streams: 3,772,743 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 98 percent 


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Connecticut: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 2,241,030 

• State Population Dependant on PDWS Relying on IEH 

Streams: 2,241,030 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Delaware: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 281,400 

• State Population Dependant on PDWS Relying on IEH 

Streams: 281,400 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Florida: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,808,955 

• State Population Dependant on PDWS Relying on IEH 

Streams: 1,808,955 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Georgia: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 4,918,344 

• State Population Dependant on PDWS Relying on IEH 

Streams: 4,912,944 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.89 percent 

Idaho: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 252,026 

• State Population Dependant on PDWS Relying on IEH 

Streams: 252,001 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Illinois: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 4,872,325 

• State Population Dependant on PDWS Relying on IEH 

Streams: 1,680,948 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 34 percent 

Indiana: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,951,112 

• State Population Dependant on PDWS Relying on IEH 

Streams: 1,703,230 


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• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 87 percent 

Iowa: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 667,428 • State Population Dependant on PD WS Relying on IEH 

Streams: 667,428 • Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Kansas: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,504,285 • State Population Dependant on PDWS Relying on IEH 

Streams: 1,503,521 • Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.95 percent 

Kentucky: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 3,282,980 • State Population Dependant on PDWS Relying on IEH 

Streams: 3,282,980 • Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Louisiana: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,901,559 • State Population Dependant on PDWS Relying on LEH 

Streams: 1,886,783 • Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99 percent 

Maine: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 456,041 

• State Population Dependant on PDWS Relying on IEH 

Streams: 454,360 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.63 percent 

Maryland: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 3,990,271 

• State Population Dependant on PDWS Relying on IEH 

Streams: 3,990,016 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.99 percent 

Massachusetts: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 5,009,161 


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• State Population Dependant on PDWS Relying on IEH 

Streams: 4,915,909 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 98 percent 

Michigan: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,977,536 

• State Population Dependant on PDWS Relying on IEH 

Streams: 1,400,633 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 71 percent 

Minnesota: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,068,598 

• State Population Dependant on PDWS Relying on IEH 

Streams: 978,928 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 92 percent 

Mississippi: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 110,041 

• State Population Dependant on PDWS Relying on IEH 

Streams: 110,041 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Missouri: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 2,498,142 

• State Population Dependant on PDWS Relying on IEH 

Streams: 2,498,142 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Montana: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 351,401 

• State Population Dependant on PDWS Relying on IEH 

Streams: 234,219 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 67 percent 

Nebraska: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 515,566 

• State Population Dependant on PDWS Relying on IEH 

Streams: 525,566 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 


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Nevada: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 23,792 

• State Population Dependant on PDWS Relying on IEH 

Streams: 23,792 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

New Hampshire: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 503,657 

• State Population Dependant on PDWS Relying on IEH 

Streams: 503,196 

• Percentage of State Population Dependant on PDWS Relying 

on 1EH Streams: 99.91 percent 

New Jersey: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 4,258,089 

• State Population Dependant on PDWS Relying on IEH 

Streams: 4,258,089 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

New Mexico: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 281,206 

• State Population Dependant on PDWS Relying on IEH 

Streams: 280,906 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.89 percent 

New York: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 11,471,432 

• State Population Dependant on PDWS Relying on IEH 

Streams: 11,146,815 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 97 percent 

North Carolina: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 4,722,950 

• State Population Dependant on PDWS Relying on IEH 

Streams: 4,719,825 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.93 percent ttb 

North Dakota: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 292,414 

• State Population Dependant on PDWS Relying on IEH 

Streams: 292,414 


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• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Ohio: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 5,894,716 • State Population Dependant on PDWS Relying on IEH 

Streams: 5,285,318 • Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 90 percent 

Oklahoma: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 2,326,616 • State Population Dependant on PDWS Relying on IEH 

Streams: 2,326,616 • Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Oregon: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,782,414 • State Population Dependant on PDWS Relying on IEH 

Streams: 1,770,246 • Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99 percent 

Pennsylvania: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 8,215,216 • State Population Dependant on PDWS Relying on IEH 

Streams: 8,035,216 • Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 98 percent 

Rhode Island: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 580,332 

• State Population Dependant on PDWS Relying on IEH 

Streams: 564,893 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 97 percent 

South Carolina: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,933,219 

• State Population Dependant on PDWS Relying on IEH 

Streams: 1,933,219 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

South Dakota: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 309,421 


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• State Population Dependant on PDWS Relying on IEH 

Streams: 309,421 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Tennessee: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 3,573,078 

• State Population Dependant on PDWS Relying on IEH 

Streams: 3,572,494 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.98 percent 

Texas: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 11,674,641 

• State Population Dependant on PDWS Relying on IEH 

Streams: 11,557,744 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99 percent 

Utah: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,490,700 

• State Population Dependant on PDWS Relying on IEH 

Streams: 1,428,450 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 96 percent 

Vermont: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 181,226 

• State Population Dependant on PDWS Relying on IEH 

Streams: 181,226 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 100 percent 

Virginia: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 2,369,620 

• State Population Dependant on PDWS Relying on IEH 

Streams: 2,364,709 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.79 percent 

Washington: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 2,110,490 

• State Population Dependant on PDWS Relying on IEH 

Streams: 2,002,833 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 95 percent 


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West Virginia: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,007,781 

• State Population Dependant on PDWS Relying on IEH 

Streams: 1,002,731 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 99.50 percent 

Wisconsin: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 1,392,700 

• State Population Dependant on PDWS Relying on IEH 

Streams: 391,531 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 28 percent 

Wyoming: 

• Total State Population Served by Public Drinking Water Systems (PDWS) using Surface Water: 205,712 

• State Population Dependant on PDWS Relying on IEH 

Streams: 202,414 

• Percentage of State Population Dependant on PDWS Relying 

on IEH Streams: 98 percent 

Æ 


tjames on DSK6SPTVN1PROD with REPORTS