19–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 112–683 

PRESERVING RURAL RESOURCES ACT OF 2012 

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. 4278] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Transportation and Infrastructure, to whom 

was referred the bill (H.R. 4278) to amend the Federal Water Pollution Control Act with respect to permit requirements for dredged 

or fill material, having considered the same, report favorably thereon without amendment and recommend that the bill do pass. 

CONTENTS 

Page 

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

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

Hearings ................................................................................................................... 5 

Legislative History and Consideration .................................................................. 5 

Committee Votes ...................................................................................................... 5 

Committee Oversight Findings ............................................................................... 10 

New Budget Authority and Tax Expenditures ...................................................... 10 

Congressional Budget Office Cost Estimate .......................................................... 10 

Performance Goals and Objectives ......................................................................... 11 

Advisory of Earmarks .............................................................................................. 11 

Federal Mandate Statement ................................................................................... 11 

Preemption Clarification ......................................................................................... 11 

Advisory Committee Statement .............................................................................. 11 

Applicability to the Legislative Branch ................................................................. 11 

Section-by-Section Analysis of Legislation ............................................................ 11 

Changes in Existing Law made by the Bill, as Reported ..................................... 12 


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PURPOSE OF THE LEGISLATION

The purpose of H.R. 4278 is to amend the Federal Water Pollution Control Act to clarify Congressional intent regarding exemptions from permit requirements for dredged or fill material. 

BACKGROUND AND NEED FOR LEGISLATION

The Clean Water Act 

In 1972, Congress passed the Federal Water Pollution Control 

Act Amendments of 1972 (commonly known as the Clean Water 

Act or the CWA; 33 USC 1251 et seq.). The objective of the CWA 

is to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters. The primary mechanism for achieving this objective is the CWA’s prohibition on the discharge into a 

jurisdictional waterbody of a pollutant without a National Pollutant Discharge Elimination System (NPDES) permit. (See CWA 

§§ 301, 402.) NPDES permits are a basic regulatory tool of the 

CWA. The CWA also regulates, through a separate permit program, the discharge of dredged or fill material into jurisdictional 

waterbodies, including wetlands. (See CWA § 404.) 

The Environmental Protection Agency (EPA) has the basic responsibility for administering and enforcing most of the CWA, including the NPDES permit program, and the Army Corps of Engineers (Corps) has lead responsibility for administering the dredge 

or fill (wetlands) permit program under section 404 of the CWA. 

Under the wetlands permitting program, it is unlawful for a facility 

to discharge dredged or fill materials into a jurisdictional 

waterbody unless the discharge is authorized by and in compliance 

with a dredge or fill (section 404) permit issued by the Corps. 

Even though the Corps has the lead authority to implement the 

CWA’s section 404 permit program, the EPA retains residual authority under the CWA to oversee, review, and object to the Corps’ 

issuance of section 404 permits for the discharge of dredged or fill 

material into jurisdictional waters, to ensure that such permitting 

decisions meet the minimum requirements of the CWA. Once the 

EPA has approved a Corps section 404 permit, the implementation 

and interpretation of that permit is left to the Corps. Recently, 

however, the EPA has abandoned its proper role of generally overseeing the Corps’ permitting program, and has inserted itself into 

the Corps’ permit issuance process, often dictating policy for the 

Corps and second-guessing Corps’ permitting decisions. 

Section 404 permitting exemptions 

In 1977, Congress made a deliberate policy choice to exempt ordinary farming, silviculture, ranching, and mining related activities 

(in CWA section 404(f)(1)) from the costly and burdensome requirements to obtain CWA permits when they are engaged in normal activities to prepare and maintain their land. 

Congress recognized that the expansive reach of the Act threatened to impose a 404 permit requirement on literally thousands 

upon thousands of parties engaged in normal farming, silviculture, 

ranching, or mining related activities whose land may contain some 

water. The exemptions provided ‘‘for the first time statutory recognition that normal farming, ranching, and silviculture activities 

do not belong in this permit program,’’ and ‘‘reemphasize that ConVerDate Mar 15 2010 17:53 Sep 22, 2012 Jkt 019006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\HR683.XXX HR683

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gress never intended these activities to be considered discharges of 

dredged or fill material.’’ (See ‘‘A Legislative History of the Clean 

Water Act of 1977: A Continuation of the Legislative History of the 

Federal Water Pollution Control Act’’ (1978) (hereinafter, ‘‘1977 

Legislative History’’), at 351 (statement of Rep. Hammerschmidt).) 

Section 404(f)(1) provides that the following discharges of 

dredged or fill material are not prohibited by or otherwise subject 

to regulation under CWA section 404 (or under CWA sections 

301(a) or 402): 

(A) from normal farming, silviculture, and ranching activities 

such as plowing, seeding, cultivating, minor drainage, harvesting for the production of food, fiber, and forest products, or 

upland soil and water conservation practices; 

(B) for the purpose of maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable 

structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, and bridge abutments or approaches, and 

transportation structures; 

(C) for the purpose of construction or maintenance of farm 

or stock ponds or irrigation ditches, or the maintenance of 

drainage ditches; 

(D) for the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters; 

(E) for the purpose of construction or maintenance of farm 

roads or forest roads, or temporary roads for moving mining 

equipment, where such roads are constructed and maintained, 

in accordance with best management practices, to assure that 

flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the 

reach of the navigable waters is not reduced, and that any adverse effect on the aquatic environment will be otherwise minimized; and 

(F) resulting from any activity with respect to which a State 

has an approved program under CWA section 208(b)(4), which 

meets the requirements of subparagraphs (B) and (C) of such 

section (dealing with programs for controlling the discharge or 

other placement of dredged or fill material, as part of an 

areawide waste treatment management planning process, and 

certain specified circumstances where a state has obtained approval to administer a permit program under CWA section 

404). 

While Congress intended to exempt ordinary farming, 

silviculture, ranching, or mining related activities from some of the 

requirements that are otherwise imposed on others who dredge or 

fill wetlands, Congress also intended for the exemptions to be applied reasonably. For example, during the debate in the House of 

Representatives on the conference report on the legislation that became the 1977 amendments to the CWA (H. Rept. 95–830), Congress recognized that some of these activities may necessarily result in incidental filling and minor harm to aquatic resources, and 

did not intend the exemptions to apply to discharges that convert 

extensive areas of water into dry land or extensively impede circulation or reduce the reach or size of a waterbody. (See, e.g., 1977 

Legislative History, at 420 (statement of Rep. Harsha).) 


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As a result, the section 404(f)(1) permitting exemptions contain 

specific language to limit the scope of the particular exemptions. 

(See, e.g., 1977 Legislative History, at 420 (statement of Rep. 

Harsha).) In addition, a ‘‘recapture provision’’ (which repeats some 

of the limitations contained in certain particular permitting exemptions) was added to the exemptions, in section 404(f)(2): 

‘‘(2) Any discharge of dredged or fill material into the navigable waters incidental to any activity having as its purpose 

bringing an area of the navigable waters into a use to which 

it was not previously subject, where the flow or circulation of 

navigable waters may be impaired or the reach of such waters 

be reduced, shall be required to have a permit under this section.’’ 

The recapture provision and the limitations contained in the particular permitting exemptions were intended to provide reasonable 

limits on the scope of the section 404(f)(1) permitting exemptions, 

and not to nullify the exemptions. For example, during debate in 

the House of Representatives on the conference report on the legislation (H.R. 3199, Public Law 95–217), Representative Harsha 

briefly discussed the provisions: ‘‘To assure that the extent of these 

exempted activities would not be misconstrued, paragraphs (f)(1)(D) 

and (E) and (f)(2) provide common sense limitations to protect the 

chemical, biological, and physical integrity of the nation’s waters.’’ 

(See 1977 Legislative History, at 420 (statement of Rep. Harsha) 

(emphasis added).) The exemptions and limitations reflect a delicate balance between protecting wetlands while allowing routine 

activities to go unimpeded. 

Implementing the Section 404 permitting exemptions and limitations 

For most of the past 35 years, the Corps (and the EPA, in its 

general oversight of the Corps’ 404 permitting program) has generally interpreted the section 404 permitting exemptions and limitations, including the section 404(f)(2) recapture provision, reasonably as Congress intended. Recently, however, the Corps (and the 

EPA, as a result of inserting itself into the Corps’ permit issuance 

process and dictating policy for the Corps) has begun to interpret 

the recapture provision so expansively and the section 404(f)(1) permitting exemptions so narrowly that the recapture provision now 

virtually swallows up the exemptions. Congress would not have included limitations in the individual permitting exemptions if the 

recapture provision was intended to be interpreted so broadly as to 

override and nullify the exemptions. 

Effectively, the Corps and the EPA now are interpreting the section 404(f)(1) exemptions to be almost entirely subsumed by the recapture provision in section 404(f)(2), with the result that, while 

Congress provided a regulatory exemption for normal farming, 

silviculture, ranching, and mining related activities in one paragraph of the CWA, the Corps and the EPA now are taking it away 

with the next paragraph. The Corps and the EPA cannot take away 

administratively what Congress has legislated. 

In response to the Agencies’ recent actions, on March 28, 2012, 

Representative Hurt introduced H.R. 4278, the Preserving Rural 

Resources Act of 2012, to clarify Congress’ original intent to provide 

exemptions from the section 404 permitting process for normal 


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farming, silviculture, ranching, and mining related activities by 

preserving these exemptions through circumscribing the scope of 

the recapture provision. By allowing each permitting exemption to 

stand on its own merits, without the Corps and the EPA negating 

their use through clever legal interpretations of the recapture provision, the legislation will allow members of the regulated community engaged in normal farming, silviculture, ranching, or mining 

related activities to shift their time and resources from wading 

through excessive and costly government bureaucracy and paperwork to utilizing the resources in place on their private property 

in ways that will expand production and create jobs. 

HEARINGS

No hearings were held on H.R. 4278. 

LEGISLATIVE HISTORY AND CONSIDERATION

On March 28, 2012, Representative Robert Hurt of Virginia introduced H.R. 4278, the Preserving Rural Resources Act of 2012, a 

bill to clarify Congressional intent regarding exemptions from permit requirements for dredged or fill material. On August 1, 2012, 

the Committee on Transportation and Infrastructure met in open 

session to consider H.R. 4278, and ordered the bill reported favorably to the House by record vote with a quorum present. The vote 

was 30 yeas to 19 nays. 

An amendment was offered in Committee by Representative 

Edwards, which was defeated by record vote. The vote was 21 yeas 

to 27 nays. The amendment would have exempted the bill from applying to waters where a discharge of dredged or fill material 

would have an adverse impact on aquatic and wild life related to 

commercial or recreational activities or the quality or availability 

of water for agricultural or other purposes. 

An amendment was offered in Committee by Representative 

Bishop of New York, which was defeated by record vote. The vote 

was 21 yeas to 28 nays. The amendment would have added several 

water infrastructure financing authorizations to the bill. 

An amendment was offered in Committee by Representative 

Napolitano, which was defeated in a voice vote with a quorum 

present. The amendment would have exempted the bill from applying to waters where a discharge of dredged or fill material would 

have the potential to increase the risk of flooding. 

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 record vote on a motion to report and on any 

amendment offered to the measure or matter, and the names of 

those members voting for and against. During consideration of H.R. 

4278, a total of three record votes were taken. 

Record votes were taken on amendments offered in Committee by 

Representative Edwards and Representative Bishop of New York. 

The Committee disposed of these two amendments by record vote 

as follows: 


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The final recorded vote was to order the bill favorably reported 

to the House. 


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COMMITTEE OVERSIGHT FINDINGS

With respect to the requirements of clause 3(c)(1) of rule XIII of 

the Rules of the House of Representatives, the Committee’s oversight findings and recommendations are reflected in this report. 

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

Clause 3(c)(2) of rule XIII of the Rules of the House of Representatives does not apply where a cost estimate and comparison prepared by the Director of the Congressional Budget Office under section 402 of the Congressional Budget Act of 1974 has been timely 

submitted prior to the filing of the report and is included in the report. Such a cost estimate is included in this report. 

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

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

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

Congressional Budget Act of 1974, the Committee has received the 

enclosed cost estimate for H.R. 4278 from the Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, August 21, 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. 4278, the Preserving 

Rural Resources Act of 2012. 

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. 4278—Preserving Rural Resources Act of 2012 

The Clean Water Act (CWA) authorizes the Environmental Protection Agency (EPA) and the Army Corps of Engineers to grant 

permits for discharging dredge or fill material into waters of the 

United States. Some activities, including those related to farming, 

forestry, and ranching, result in discharges that in some circumstances are exempt from such permit requirements. However, 

if those activities would impair the flow or circulation of water by 

filling wetlands, for example, then a CWA permit is required. H.R. 

4278 would not require any of those activities to have a CWA permit under any circumstances. 

CBO estimates that enacting this legislation would not have a 

significant impact on the federal budget because it would not result 

in a significant change in workload for either EPA or the Corps. 

Under current law, the Corps is authorized to collect and spend 

fees for issuing permits under the CWA; therefore, pay-as-you-go 

procedures apply to H.R. 4278, However, CBO expects that the net 


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change in collections and spending under the bill would be negligible. 

H.R. 4278 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

impose no costs on state, local, or tribal governments. 

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

This estimate was approved by Theresa Gullo, Deputy Assistant 

Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

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

the Rules of the House of Representatives, the performance goal 

and objective of this legislation is to clarify Congressional intent regarding exemptions from permit requirements for dredged or fill 

material. 

ADVISORY OF EARMARKS

Pursuant to clause 9 of rule XXI of the Rules of the House of 

Representatives, the Committee is required to include a list of congressional earmarks, limited tax benefits, or limited tariff benefits 

as defined in clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 

the House of Representatives. No provision in the bill includes an 

earmark, limited tax benefit, or limited tariff benefit under clause 

9(e), 9(f), or 9(g) of rule XXI. 

FEDERAL MANDATE STATEMENT

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

pursuant to section 423 of the ‘‘Unfunded Mandates Reform Act’’ 

(P.L. 104–4). 

PREEMPTION CLARIFICATION

Section 423 of the Congressional Budget Act of 1974 requires the 

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

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

that H.R. 4278 does not preempt any state, local, or tribal law. 

ADVISORY COMMITTEE STATEMENT

No advisory committees within the meaning of section 5(b) of the 

Federal Advisory Committee Act are created by this legislation. 

APPLICABILITY OF LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

accommodations within the meaning of section 102(b)(3) of the Congressional Accountability Act (P.L. 104–1). 

SECTION-BY-SECTION ANALYSIS OF LEGISLATION

Section 1. Short title 

Section 1 states that the Act may be cited as the ‘‘Preserving 

Rural Resources Act of 2012.’’ 


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Section 2. Permits for dredged or fill material 

H.R. 4278 amends section 404(f) of the Clean Water Act, which 

provides exemptions from the requirement to obtain a permit for 

the discharge of dredged or fill material. Section 2 of the bill 

amends section 404(f) by: 

(1) Amending section 404(f)(1) by striking the following introductory language of paragraph (1): ‘‘Except as provided in 

paragraph (2) of this subsection, the discharge’’, and inserting 

in its place: ‘‘The discharge’’; and 

(2) Amending section 404(f)(2) by striking the following language of paragraph (2): ‘‘having as its purpose bringing an area 

of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable 

waters may be impaired or the reach of such waters be reduced,’’ and inserting in its place: ‘‘having as its purpose bringing an area into a use not described in paragraph (1)’’. 

The changes that section 2 of the bill makes to section 404(f) of 

the CWA are intended to clarify Congress’ original intent to provide reasonable exemptions from the section 404 permitting process 

for normal farming, silviculture, ranching, and mining related activities by preserving these exemptions through circumscribing the 

scope of the recapture provision. 

Section 2 of the bill amends the recapture provision to allow normal farming, silviculture, ranching, and mining related activities to 

be conducted without the requirement to obtain a section 404 permit, as long as those activities do not result in bringing an area 

into a use not described in section 404(f)(1). As long as an area is 

maintained in a use that is described in section 404(f)(1), and the 

limitations contained in the particular permitting exemption in 

404(f)(1) are also met, a 404 permit would not be required. 

CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

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

House of Representatives, changes in existing law made by the bill, 

as reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is printed in italic, 

existing law in which no change is proposed is shown in roman): 

FEDERAL WATER POLLUTION CONTROL ACT 

* * * * * * * 

TITLE IV—PERMITS AND LICENSES 

* * * * * * * 

PERMITS FOR DREDGED OR FILL MATERIAL

SEC. 404. (a) * * * 

* * * * * * * 

(f)(1) øExcept as provided in paragraph (2) of this subsection, the 

discharge¿ The discharge of dredge or fill material— 

(A) * * * 

* * * * * * * 


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(2) Any discharge of dredged or fill material into the navigable 

waters incidental to any activity øhaving as its purpose bringing an 

area of the navigable waters into a use to which it was not previously subject, where the flow or circulation of navigable waters 

may be impaired or the reach of such waters be reduced,¿ having 

as its purpose bringing an area into a use not described in paragraph (1) shall be required to have a permit under this section. 

* * * * * * * 


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DISSENTING VIEWS 

Despite the misleading short title of this legislation, H.R. 4278 

has far too little to do with ‘‘preserving rural resources’’ and too 

much to do with creating a massive Clean Water Act (Act) loophole 

for a variety of industrial-related activities, including industrial 

farming and timber-harvesting, ranching, and construction. 

To be clear, this legislation is not about protecting family farmers or preserving our nation’s rural heritage. It is about overturning the delicate balance that was reached decades ago by this 

Committee between protecting the environment and allowing narrowly defined activities, including normal farming, ranching, and 

forestry activities, to continue because these activities cause little 

or no adverse effects on the environment. 

H.R. 4278, which has never been subject to a Congressional hearing, overturns 25 years of precedent that was set in motion in the 

1977 Amendments to the Act. In that legislation (Pub. L. 95–217), 

Congress reached a compromise that balanced the desire to enact 

far-reaching protections over the nation’s waters with the practical, 

day-to-day operations of farmers, ranchers, forestry owners, and a 

host of other industrial sectors. 

That compromise, enacted as section 404(f) of the Act, was Congress’ response to industry’s concern that the comprehensive application of the Act might needlessly delay or complicate routine activities through the 404 permit process. 

As a result, section 404(f) created a list of ‘‘activity-based’’ exemptions from the permitting requirements of section 404, including exemptions for normal farming, forestry, and ranching activities, as well as activities related to certain construction and maintenance projects, such as levees, dams, causeways, and other transportation structures. 

Yet, this compromise also imposed significant limits on the section 404(f) activity-based exemptions. According to section 404(f)(2), 

an activity-based exemption does not apply if the activity changes 

the use of the water, such as converting wetlands to dry land, or 

reduces the reach or impairs the flow of such waters. For example, 

if the activity ‘‘converts’’ navigable waters to dry land, that activity 

would not be exempt from the requirements of section 404, but may 

still be pursued under the normal permitting process. 

Unfortunately, the proponents of H.R. 4278 seek to undue this 

compromise under the guise of protecting family farmers and 

ranchers from regulatory overreach. However, as noted by outside 

stakeholders supporting H.R. 4278, the real intent of H.R. 4278 is 

to ensure that the Clean Water Act regulatory program simply does 

not apply to agricultural (or other) lands—in any instance—and regardless of any adverse impacts on downstream water quality or 

the related environment. 


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1See Borden Ranch Partnership v. United States Corps of Engineers, 537 U.S. 99 (2002). 2 In Avoyelles Sportsmen’s League, Inc., v. Marsh, the U.S. Fifth Circuit Court of Appeals ruled 

that the section 404(f) ‘‘normal farming activities’’ exemption did not apply where a developer 

proposed to clear cut 80,000 acres of cypress forests in Avoyelles Parish, Louisiana, and convert 

this land to agricultural use (specifically soybean production). See 715 F.2d 897, 926 (5th Cir. 

1990). According to the Court, the ‘‘purpose and effect of the landclearing activities . . . was 

to bring ‘an area of the navigable waters into a use to which it was not previously subject’. . . 

so that the property could be changed from a forest to a soybean field.’’ If H.R. 4278 were enacted, it is conceivable that industry would argue this activity was exempt from section 404 of 

the Clean Water Act, because both uses could be contemplated as a ‘‘use described in paragraph 

(1).’’ 3 In Borden Ranch Partnership v. United States Army Corps of Engineers, a real estate developer was fined under the Clean Water Act for using bulldozers to ‘‘radically alter[] the 

hydrological regime of the protected wetlands.’’ See 261 F.3d 810, 816 (9th Cir. 2001). In overturning a legal challenge to the Clean Water Act fine, the U.S. Ninth Circuit Court of Appeals 

ruled that the section 404(f) ‘‘normal farming activities’’ exemption did not apply where a developer converted ‘‘ranch land to orchards and vineyards [by] bringing the land ‘‘into a use to which 

it was not previously subject’’. According to the Court, ‘‘[although] the Corps cannot regulate 

a farmer who desires ‘merely to change from one wetland crop to another,’ activities that require 

‘substantial hydrological alterations’ require a permit’’ (citing United States v. Akers, 765 F.2d 

814, 820 (9th Cir. 1986)). In 2002, the U.S. Supreme Court upheld the decision of the Ninth 

Circuit. If H.R. 4278 were enacted, it is conceivable that industry would argue this activity was 

exempt from section 404 of the Clean Water Act, because both uses could be contemplated as 

a ‘‘use described in paragraph (1).’’ 

This legislation would overturn decades of legislative and judicial 

precedent, including a 2002 decision of the U.S. Supreme Court,1

as well as create a massive legal-loophole that would exempt, from 

environmental review or mitigation, a litany of industrial or construction related activities, even if those activities destroy water 

quality or wetlands or have massive adverse downstream impacts. 

Under H.R. 4278, any activity that is even remotely related to 

farming, forestry, ranching, or a host of other construction-related 

activities would be exempt from the permitting requirements of the 

Clean Water Act, even if the activity involved the draining, filling, 

or destruction of existing wetlands. 

For example, if H.R. 4278 were enacted, businesses could destroy 

thousands of acres of cypress swamps along the Gulf Coast to make 

mulch for home gardens, without Federal oversight or permit review. These fragile wetlands, which provide critical hurricane protection for coastal communities of Louisiana, Alabama, and Florida, 

are coveted by the mulch and hardwood lumber industries, but 

have been sustained, to a great extent, because of the Act’s permitting protections. However, if H.R. 4278 were enacted, these areas 

could be clear-cut, drained, and converted for other purposes (such 

as agriculture),2 destroying this historic Gulf Coast habitat, and exposing these communities to greater storm damage from coastal 

storms. 

Similarly, if this bill were enacted, industrial farmers could plow 

under countless acres of wetlands and aquifer recharge areas, including areas specifically-created to mitigate potential downstream 

contamination, and not be required to undertake an environmental 

review or to address downstream impacts. Similarly, real estate developers could cause irreparable harm to the availability or quality 

of water in agricultural areas, such as California’s Central Valley, 

without the existing environmental review provided by the Act.3

Unfortunately, enactment of H.R. 4278 could have the exact opposite effect of its stated purpose of ‘‘preserving rural resources’’. 

By repealing existing Federal protections against activities that 

change the use of an area or impair or reduce the flow, circulation, 

or reach of a waterbody, developers could make an end-run around 


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the Act by encouraging activities that drain or otherwise convert 

wetlands to dry-land (uplands). After a wetland’s hydrology is removed, many of these areas could no longer be subject to Clean 

Water Act protections, and would be ripe for further development, 

including conversion from agricultural lands to commercial or residential development. It is not hard to imagine how, under H.R. 

4278, unscrupulous developers could prey on unsuspecting farmers, 

by encouraging farmers to drain their fertile cropland in order to 

then convert the land to grow ‘‘houses’’ rather than crops. In short, 

while this legislation claims to ‘‘preserve rural resources’’, H.R. 

4278, actually, may hasten the conversion of farmland to subdivisions. 

Proponents of H.R. 4278 have claimed this legislation is necessary to prevent the regulatory overreach of the Corps of Engineers (Corps) or the Environmental Protection Agency (EPA). Their 

claims are based on the argument that the Corps and EPA have 

limited, by regulatory action, existing statutory exemptions for 

‘‘normal farming, silviculture, and ranching activities,’’ as well as 

an enumerated list of other industrial-related activities described 

in section 404(f)(1). 

For example, in a letter to the sponsor of H.R. 4278, an agricultural stakeholder group supporting this legislation highlighted anecdotal instances where ‘‘EPA and the Corps have narrowed these 

important exemptions,’’ including ‘‘regulating the equipment farmers use to plow and regulating how deep they plow’’ and ‘‘preventing farmers and ranchers from rotating their use of private 

land between pasture, row crop and tree crop enterprises.’’ 

While industry may view these proposed activities as ‘‘normal’’, 

as noted earlier, these activities can have a dramatic impact on the 

quality and availability of water in the region, and, therefore are 

appropriately covered by the existing ‘‘recapture provisions’’ of section 404(f)(2). Nothing in section 404 prevents industry from proposing such activities; however, approval for these activities in navigable waters is more appropriately pursued under the normal section 404 review process. 

It is disingenuous for proponents of H.R. 4278 to suggest that 

Congress intended to include activities that adversely affect the circulation or flow of navigable waters or change the use of such 

waters when it approved section 404(f) in 1977. The legislative history, in fact, states exactly the opposite. 

For example, the 1977 Conference Report to accompany H.R. 

3199 (H. Report 95–830) describes section 404(f) as follows: 

The conference substitute also adds a new subsection (f) 

which provides that the discharge of dredged or fill material (1) from normal farming, silviculture, and ranching activities, (2) for the purpose of maintenance (including 

emergency reconstruction of recently damaged parts) of 

currently serviceable structures, (3) for the purpose of construction or maintenance of farm or stock ponds or irrigation ditches or the maintenance of drainage ditches, (4) for 

the purpose of construction of temporary sedimentation basins on a construction site which does not include placement of fill material into the navigable waters, (5) for the 

purpose of construction or maintenance of farm roads or 


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forest roads, or temporary roads for moving mining equipment, where such roads are constructed in accordance with 

best management practices, to assure that flow and circulation patterns and chemical and biological characteristics of the navigable waters are not impaired, that the 

reach of the navigable waters is not reduced, and that any 

adverse effect on the aquatic environment will be otherwise minimized, (6) resulting from any activity with respect to which a State has an approved program under 

section 208(b)(4) which meets the requirements of subparagraph (B) and (C) of such section, is not prohibited by or 

otherwise subject to regulation under section 404 of 301(a) 

or 402 of this Act (except for effluent standards or prohibitions under 307). This subsection (f) shall not apply if 

the discharge of dredged or fill material into the 

navigable waters is incidental to any activity having 

as its purpose bringing an area of the navigable 

waters into a use to which it was not previously subject where the flow or circulation of navigable 

waters may be impaired or the reach of such waters 

be reduced. [emphasis added] 

During consideration of the Conference Report on the House 

floor, House conferee, Representative William Harsha (R–OH) 

noted that: 

New subsection (f) of section 404 provides that Federal 

permits will not be required for narrowly defined activities specifically identified in paragraphs A–F that cause 

little or no adverse effects either individually or cumulatively. To assure that the extent of these exempted activities will not be misconstrued, paragraphs (f)(1)(D) and (E) 

and (f)(2) provide common sense limitations to protect the 

chemical, biological, and physical integrity of the Nation’s 

waters. While it is understood that some of these activities 

may necessarily result in incidental filling and insignificant harm to aquatic resources, these exemptions do 

not apply to discharges that convert more extensive 

areas of water into dry land or impede circulation 

or reduce the reach or size of the water body. [emphasis added] 

In addition, during Senate consideration of the Conference Report, Senate conferee, Senator Malcom Wallop (R–WY) noted that: 

The conferees worked with the corps and the Environmental Protection Agency to insure that the amendments 

are carefully worded to provide protection from harmful 

activities, while reducing unnecessary government interference . . . The amendment clarifies that normal farming, 

ranching and silvicultural activities such as plowing, seeding, cultivating, and harvesting, as well as minor drainage 

and soil and water conservation practices performed in uplands, were not intended to require 404 permits. The 

amendment also excludes from permit requirements, 

discharges of dredged or fill material in conjunction 

with [listed 404(f)(1)] activities that will cause little 


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or no adverse effects either individually or cumulatively. [emphasis added] 

In our view, the scope of activities covered by section 404(f) has 

been explicitly outlined in the legislative history of the 1977 

Amendments to the Clean Water Act, and has been consistently 

implemented by the Corps and EPA, and subsequent rulings of the 

courts. The scope of activities that industry proposes as reasons for 

enactment of H.R. 4278 go well beyond those contemplated in the 

legislative history of section 404(f)—namely activities that will 

cause little or no adverse effects on the Nation’s waters, either individually or cumulatively. 

AMENDMENTS OFFERED DURING COMMITTEE MARKUP

Protection of hunting and fishing resources and irrigated agriculture 

During the markup of H.R. 4278, Representative Donna F. 

Edwards offered an amendment to restore existing Clean Water 

Act protections over dredge and fill activities that may be detrimental to certain commercial and recreational activities, including 

hunting and fishing, as well as to the quality or availability of 

water for agricultural or other commercial purposes. 

In short, this amendment recognizes that substantial economic 

benefits are provided by Clean Water Act protections over certain 

waterbodies and wetlands. 

For example, according to the U.S. Fish and Wildlife Service, approximately 87.5 million U.S. residents fished, hunted, or watched 

wildlife in 2006. They spent over $122 billion in pursuing their recreational activities, contributing millions of jobs in industries and 

businesses that support wildlife-related recreation. 

Yet, under the provisions of H.R. 4278, the valuable waters and 

wetlands relied on as habitat for fish and wildlife could be destroyed with little or no Federal oversight or review. Accordingly, 

the economic benefits and enjoyment provided to millions of American families could be eliminated for the benefit of a few industrial 

sectors. 

Similarly, the warm waters of the Atlantic Ocean and the Gulf 

of Mexico host proactive fisheries for a wide variety of shellfish and 

finfish. In many instances, juvenile fish rely on coastal waters and 

habitat for survival, and for replenishing the vibrant commercial 

fishing industry in coastal waters. According to the National Oceanic and Atmospheric Administration, the U.S. seafood industry 

supports approximately one million full- and part-time jobs, nationwide, and generates annual sales in excess of $116 billion. 

Yet, under the provisions of H.R. 4278, the valuable coastal 

waters and habitat for both shellfish and finfish could be destroyed 

with little or no Federal oversight or review. Again, the economic 

benefits currently shared among commercial fishing interests could 

be decimated for the benefit of a few industrial sectors. 

Finally, this amendment recognizes impacts to one portion of a 

watershed can have adverse impacts on the availability and quality 

of waters in other areas, including waters used for irrigation or 

other commercial purposes. 


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It would be ironic if H.R. 4278 was enacted without the Edwards 

amendment, because it would seem to say that, in fact, every man 

is for himself, and that even if an upstream activity would cause 

downstream farmers to lose their vital irrigation waters, supporters of this bill can accept this fact. 

As many portions of this nation are facing the worst drought in 

recent-memory, we hope that proponents of H.R. 4278 can recognize that water is a finite resource, and needs to be conserved, and 

if possible, reused and shared for the greater good. Yet, as drafted, 

H.R. 4278 allows valuable water sources, including irrigation 

sources, to be destroyed with little or no Federal oversight or review. Again, the economic benefits currently shared among national agricultural interests could be decimated for the benefit of a 

few industrial sectors. 

Unfortunately, the amendment offered by Representative 

Edwards was defeated by a vote of 21–27. 

Protecting communities from an increased risk of flooding 

During the markup of H.R. 4278, Representatives Grace F. 

Napolitano and Russ Carnahan offered an amendment to address 

another concern created by enactment of H.R. 4278—the increased 

likelihood of downstream flooding that will result from the boundless conversion and destruction of waters and wetland contemplated by this bill. 

Over the past decade, this nation has witnessed a dramatic increase in the frequency and severity of flooding events. Many of 

these flooding events can be directly traced back to continued development of floodplains, and either ineffective or improper mitigation of impacted watersheds. 

Under H.R. 4278, further development of natural storage areas, 

such as wetlands, will continue, and potentially at rates not seen 

since before enactment of the Clean Water Act. 

This is the wrong policy choice for a number of reasons, but most 

significantly for placing more people, more properties, and more 

livelihoods in harm’s way of potential flooding events. 

The amendment offered by Representatives Napolitano and 

Carnahan would preserve existing Clean Water Act review of activities that may have significant individual and cumulative impacts on downstream communities. This amendment would require 

activities that have ‘‘the potential to increase the risk of flooding, 

including flooding in a State other than the one in which the discharge will occur, or flooding that adversely impacts public infrastructure, including infrastructure related to transportation systems, flood damage reduction projects, or power generation’’ to be 

pursued under the traditional 404 permit process, and not be collectively exempt from all Clean Water Act review. 

This common sense amendment recognizes that activities which 

drain or fill waters and wetlands divert these waters (and any future excess precipitation runoff) somewhere else in the watershed— 

in essence, leaving these waters for some other downstream interests to address. If enacted as currently drafted, H.R. 4278 would 

force downstream landowners and communities to take corrective 

actions (and expend potentially significant additional resources) to 

avoid any increased risk of flooding from unconstrained upstream 


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development. The reasons why proponents of H.R. 4278 seem to ignore the fact that this legislation increase the risk of downstream 

flooding are unknown, as, for decades, farmers, foresters, and 

ranchers have been able to carry out their professions under the 

existing Clean Water Act protections, while, at the same time, taking common sense steps to avoid adversely impacting the lives and 

livelihoods of the American public. 

As Ms. Napolitano noted during consideration of this amendment 

at markup, ‘‘It would seem to me that in times when we are seeing 

increased extreme rain events that we need to ensure proposed development and land actions do not exacerbate flooding impacts to 

downstream districts.’’ 

The proponents of H.R. 4278 raise concerns about reducing the 

burdens on farmers, ranchers, and forestry operations; yet, they ignore the fact that this legislation simply shifts those burdens (and 

those flood waters) to average American families and the U.S. taxpayer—who will be forced to come in to provide disaster assistance 

when our towns and communities face greater flooding risks from 

this legislation. 

Unfortunately, the amendment offered by Representatives 

Napolitano and Carnahan was defeated by a voice vote. 

Investing in water infrastructure: Job creation and protection of the 

environment 

During the markup of H.R. 4278, Subcommittee Ranking Member Timothy H. Bishop offered an amendment to ensure that the 

Committee fulfills its responsibility to our constituents, our communities, and this Congress by reauthorizing the Clean Water 

State Revolving Fund, as well as implement several innovative financing mechanisms, similar to concepts supported by the Subcommittee Chairman, including an alternative water infrastructure 

proposal to better leverage scarce Federal dollars modeled on the 

popular Transportation Infrastructure Finance and Innovation Act 

(TIFIA) program for highways that was significantly expanded in 

the Moving Ahead for Progress in the 21st Century Act (MAP–21) 

(Pub L. 112–141). 

To be clear—the Bishop amendment is strictly an authorization 

of funds, and is subject to appropriations. Any impact on direct 

spending is offset, and, in the view of the Congressional Budget Office, it does not score. Any argument to the contrary is simply an 

excuse for inaction. 

For the past year, Committee Democrats have been working in 

good faith, with outside stakeholders and across the aisle, to reach 

consensus on the best way to renew the Federal commitment to 

funding wastewater infrastructure. That effort culminated in the 

introduction of bipartisan legislation, H.R. 3145, the Water Quality 

Protection and Job Creation Act of 2011, which was introduced in 

October of last year and is cosponsored by several members of this 

Committee from both sides of the aisle. 

In fact, more than 100 organizations strongly support H.R. 3145, 

including the Associated General Contractors of America, the National Association of Clean Water Agencies, Food and Water 

Watch, the Water Environment Federation, the National League of 

Cities, the Water Infrastructure Network, the American Society of 


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4For fiscal year 2012 and each fiscal year thereafter, the requirements of section 513 of the 

Federal Water Pollution Control Act (33 U.S.C. 1372) shall apply to the construction of treatment works carried out in whole or in part with assistance made available by a State water 

pollution control revolving fund as authorized by title VI of that Act (33 U.S.C. 1381 et seq.), 

or with assistance made available under section 205(m) of that Act (33 U.S.C. 1285(m)), or both. 

See Pub. L. 112–74 (125 Stat. 1020). 

Civil Engineers, the National Construction Alliance II, and the 

American Public Works Association, among many others. 

This nation faces an impending water infrastructure crisis. EPA has estimated that there is over $300 billion in water infrastructure need across the nation with many experts arguing that the nation’s need is far greater. In July 2012, during a Water Resources 

and Environment Subcommittee hearing about EPA’s Integrated 

Planning process, Subcommittee members heard from several witnesses who reaffirmed that additional Federal investment in water 

infrastructure is desperately needed in their communities. 

So great is the importance of the Nation’s water infrastructure 

that it has been recognized by this Committee in each of the last 

five Congresses, with bills to address the growing need supported 

by former-Chairmen Shuster, Young, and Oberstar. 

In addition, in the 111th and 110th Congresses, some of our Republican Committee colleagues opposed water infrastructure legislation because of philosophical concerns. The dissenting views on 

H.R. 1262 in the 111th Congress (H. Rept. 111–26): 

The reauthorization of the Clean Water State Revolving 

Loan Fund (SRF) Program is an important step towards 

addressing the needs of our critical and aging wastewater 

infrastructure. We welcome the environmental improvements that many provisions in this bill would bring. However, while H.R. 1262 represents an important step forward for clean water in many respects, it also takes a significant step backwards by mandating and expanding upon 

the past application of the Davis-Bacon Act’s prevailing 

wage requirements in the SRF program. 

Very similar concerns were also expressed in dissenting views to 

H.R. 720 in the 110th Congress (H. Rept. 110–30). 

However, last year Congress permanently resolved the DavisBacon issue, in relation to water infrastructure, with enactment of 

the Consolidated Appropriations Act, 2012 (Pub. L. 112–74).4

Therefore, the two concerns previously cited as impediments to 

advancing water infrastructure legislation—Davis-Bacon and cost— 

have been resolved. The Appropriations Act resolved the DavisBacon issue; and the Bishop amendment does not contain any direct spending that is not offset in the bill, is compliant with PayGo and Cut-Go and does not score. Furthermore, the Chairman has 

the authority to strike any provision of a bill, reported by the Committee that would cause a violation of the Budget Act or a Rule 

XXI Cut-Go Point-of-Order. 

Just like the recently enacted surface transportation program 

(Pub. L. 112–141), the need for investing in wastewater infrastructure is enormous and reauthorizing and reforming programs to rebuild our crumbling wastewater infrastructure systems will create 

thousands of jobs. For every $1 billion invested in wastewater infrastructure, this nation can create as many as 33,000 jobs in comVerDate Mar 15 2010 17:53 Sep 22, 2012 Jkt 019006 PO 00000 Frm 00021 Fmt 6604 Sfmt 6602 E:\HR\OC\HR683.XXX HR683

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munities across America while improving public health and the environment. 

Unfortunately, the Bishop amendment was defeated by a vote of 

21–28. This defeat marks a missed opportunity, not only in terms 

of what this Committee should be doing to promote good-paying 

jobs here at home, but also in meeting its long-standing obligation 

to protect the Nation’s water resources and environment. 

CONCLUSION

Despite the claims to the contrary, H.R. 4278 marks a massive 

expansion of the 404(0(1) exemptions already provided for normal 

farming, forestry, and ranching activities as well as other industrial-related activities, allows for unconstrained dredging, drainage, 

and filling of wetlands and streams, and has a massive adverse impact on the nation’s water quality and quantity, the protection of 

lives and livelihoods, and the overall condition of the nation’s environment. 

Our predecessors in Congress reached a fair compromise between 

promoting economic activities, including normal farming-related activities, and protecting the environment. Yet, in a dramatic overreach, H.R. 4278 guts this existing balance to the economic benefit 

of a distinct group of outside stakeholders and industrial interests. 

For these reasons, we oppose enactment of H.R. 4278. 

TIMOTHY H. BISHOP. 

GRACE F. NAPOLITANO. 

DONNA F. EDWARDS. 

Æ 


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