49–010 

Calendar No. 153 

114TH CONGRESS REPORT " ! SENATE 1st Session 114–84 

FEDERAL WATER QUALITY PROTECTION ACT 

JULY 16, 2015.—Ordered to be printed 

Mr. INHOFE, from the Committee on Environment and Public 

Works, submitted the following 

R E P O R T 

together with 

MINORITY VIEWS 

[to accompany S. 1140] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Environment and Public Works, to which was 

referred a bill (S. 1140) to require the Secretary of the Army and 

the Administrator of the Environmental Protection Agency to propose a regulation revising the definition of the term ‘‘waters of the 

United States,’’ and for other purposes, having considered the 

same, reports favorably thereon with amendment and recommends 

that the bill as amended do pass. 

BACKGROUND AND NEED FOR LEGISLATION

In 1972, with the enactment of the Federal Water Pollution Control Act (Clean Water Act or CWA), Congress gave EPA and the 

Secretary of the Army (acting through the Chief of the Corps of Engineers) (Corps) the authority to regulate the discharge of pollutants or the discharge of dredged or fill material into navigable 

waters, which Congress defined as ‘‘waters of the United States.’’ 

EPA and the Corps of Engineers (the agencies) promulgated several regulatory definitions of ‘‘waters of the United States,’’ most 

recently by the Corps in 1986 and by EPA in 1993. 

Despite the fact that there has been no statutory change in the 

definition of ‘‘navigable waters’’ or ‘‘waters of the United States’’ 

since 1972 and no regulatory change since 1993, the agencies have 


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1Waters and Wetlands, Corps of Engineers Needs to Evaluate Its District Office Practices in 

Determining Jurisdiction (GAO–04–297) (hereinafter 2004 GAO report), at 3. 2 Id. at 17–18. 

gradually asserted broader authority by expanding their interpretation of the term ‘‘waters of the United States.’’ Challenges to that 

assertion of authority, claiming regulatory overreach, have reached 

the Supreme Court three times. 

Supreme Court Cases 

1. Riverside Bayview 

In United States v. Riverside Bayview, 474 U.S. 121 (1985), the 

Supreme Court addressed adjacent wetlands and found that a wetland that directly abuts a ‘‘water of the United States’’ is a continuation of such water. In doing so, the Court approved the rationale 

provided by the Corps when it included adjacent wetlands in the 

1977 definition of ‘‘waters of the United States.’’ See 474 U.S. at 

134. As the Court noted: ‘‘In determining the limits of its power to 

regulate discharges under the Act, the Corps must necessarily 

choose some point at which water ends and land begins.’’ Thus, in 

situations where a wetland abuts a water of the United States, 

Riverside Bayview stands for the proposition that the landward extent of that particular water of the United States includes the wetland. It does not address a wetland that is not connected to a water 

of the United States as part of a continuum. The Court did not express any opinion regarding ‘‘the authority of the Corps to regulate 

discharges of fill material that are not adjacent to bodies of open 

water.’’ Id. at 132 n.8. 

Under the current regulatory definition of ‘‘waters of the United 

States:’’ ‘‘[t]he term ‘adjacent’ means bordering, contiguous, or 

neighboring. Wetlands separated from other waters of the United 

States by man-made dikes or barriers, natural river berms, beach 

dunes and the like are ‘adjacent wetlands.’’’ In 2004, the Government Accountability Office (then referred to as the General Accounting Office) (GAO) reviewed the interpretations of this definition by the various Corps Districts. GAO found that Corps Districts 

apply different approaches to identify wetlands that are adjacent to 

other waters of the United States and thus subject to federal regulation. According to GAO, ‘‘one district generally regulates wetlands located within 200 feet of other waters of the United States, 

while other districts consider the proximity of the wetland to other 

waters of the United States on a case-by-case basis without any 

reference to a specific linear distance.’’ 1 Similarly, some Corps Districts considered the flood plain when evaluating adjacency while 

others did not.2

2. SWANCC 

In the second case, Solid Waste Agency of Northern Cook County 

v. U.S. Army Corps of Engineers (SWANCC), 531 U.S. 159 (2001), 

the Court addressed water that was not adjacent to a navigable 

water. In SWANCC, the Court declined to go beyond Riverside 

Bayview and assert jurisdiction over waters or wetlands that were 

not ‘‘inseparably bound up with the ‘waters’ of the United States.’’ 

531 U.S. at 167 (quoting Riverside Bayview). 


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We thus decline respondents’ invitation to take what 

they see as the next ineluctable step after Riverside 

Bayview Homes: holding that isolated ponds, some only 

seasonal, wholly located within two Illinois counties, fall 

under § 404(a)’s definition of ‘‘navigable waters’’ because 

they serve as habitat for migratory birds. As counsel for 

respondents conceded at oral argument, such a ruling 

would assume that ‘‘the use of the word navigable in the 

statute . . . does not have any independent significance.’’ 

[citing the oral argument transcript] We cannot agree that 

Congress’ separate definitional use of the phrase ‘‘waters 

of the United States’’ constitutes a basis for reading the 

term ‘‘navigable waters’’ out of the statute. 531 U.S. at 

171–172. 

The Court further said: ‘‘In order to rule for respondents here, we 

would have to hold that the jurisdiction of the Corps extends to 

ponds that are not adjacent to open water. But we conclude that the 

text of the statute will not allow this.’’ 531 U.S. at 167–68 (emphasis added). 

Based on this analysis, the SWANCC Court determined that use 

of a body of water by migratory birds is not a basis for jurisdiction 

under the Act. The rationale used to reach this conclusion severely 

called into question the legitimacy of using paragraph (a)(3) of the 

current regulatory definition of waters of the United States to assert jurisdiction: ‘‘All other waters such as intrastate lakes, rivers, 

streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce.’’ 33 C.F.R. 328.3(a)(3). This section of the regulatory definition of ‘‘waters of the United States’’ 

has been invalid in the states that encompass the Fourth Circuit 

(Maryland, Virginia, West Virginia, North Carolina, and South 

Carolina) since 1997. United States v. Wilson, 133 F. 3d 251, 257 

(4th Cir. 1997). 

EPA and the Corps currently evaluate jurisdiction over isolated, 

intrastate, non-navigable waters under guidance issued in 2003. 68 

Fed. Reg. 1995 (Jan. 15, 2003). Since the SWANCC decision in 

2001, in evaluating non-navigable, intrastate, non-tributary, nonadjacent water on a case-by-case basis, EPA and the Corps have 

not identified a set of facts that would support federal jurisdiction 

and so have not regulated any such waters. 

3. Rapanos 

The third case, Rapanos v. United States, addressing a third category of jurisdictional waters, tributaries and their adjacent wetlands, resulted in a divided opinion. 547 U.S. 715 (2006). The four 

justice plurality held that to be subject to the CWA, water must be 

surface water with a relatively permanent connection to navigable 

water. In a concurring opinion Justice Kennedy held that to be subject to CWA jurisdiction, water must have a ‘‘significant nexus’’ to 

traditional navigable water. The four dissenting justices argued for 

broader jurisdiction, based on ‘‘entwined’’ ecosystems. 547 U.S. at 

797. None of the opinions purported to overturn SWANCC. 

EPA and the Corps currently evaluate jurisdiction over tributaries and adjacent water under a guidance issued December 2, 


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3Letter dated May 20, 2009 to Chairman Boxer, Senate Environment and Public Works Committee from Nancy Sutley, Chair of the White House Council on Environmental Quality; Lisa 

Jackson, Administrator of the Environmental Protection Agency; Tom Vilsack, Secretary of the 

Department of Agriculture; Ken Salazar, Secretary of the Department of the Interior; and Terrence Salt, Acting Assistant Secretary of the Army for Civil Works. 

2008. This guidance applies only to those provisions of the agencies’ 

regulations at issue in Rapanos—33 C.F.R. 328.3(a)(1) (navigable 

water), (a)(5) (tributaries), and (a)(7) (adjacent wetlands) and asserts jurisdiction over tributaries based on either the ‘‘relatively 

permanent’’ connection test of the plurality or the ‘‘significant 

nexus’’ test of Justice Kennedy. However, this guidance also states: 

‘‘It is clear . . . that Justice Kennedy did not intend for the significant nexus standard to be applied in a manner that would result 

in assertion of jurisdiction over waters that he and the other justices determined were not jurisdictional in SWANCC. Nothing in 

this guidance should be interpreted as providing authority to assert 

jurisdiction over waters deemed non jurisdictional by SWANCC.’’ 

Legislative Attempts to Expand CWA Jurisdiction 

On May 20, 2009, then EPA Administrator Lisa Jackson, Acting 

Assistant Secretary of the Army Terrence Salt and three other 

agency officials sent a letter to Senator Boxer urging Congress to 

amend the CWA to extend jurisdiction to the broadest extent of 

Commerce Clause authority.3

To achieve this objective, former Senator Feingold introduced the 

‘‘Clean Water Restoration Act’’ in the 110th Congress (S. 1870) and 

111th Congress (S. 787), which would have removed the term ‘‘navigable’’ from the statute and extended federal jurisdiction over all 

waters. This Committee marked up the legislation in the 111th 

Congress and ordered it reported to the Senate in June 2009. The 

Committee did not file its report and place the bill on the Senate 

Calendar until December 10, 2010, after the November election in 

which the sponsor of the legislation, Senator Feingold, as well as 

the sponsor of the House counterpart, Congressman Oberstar, both 

failed to be reelected. S. Rept. No. 111–361. No further action was 

taken on this legislation and similar legislation was not introduced 

in subsequent Congresses. 

Administrative Expansion of CWA Jurisdiction 

After the failed legislative attempts of the 110th and 111th Congresses, the agencies began to take administrative action to assert 

authority to regulate geographically isolated wetlands and waters 

that do not contribute surface flow to navigable waters (notwithstanding the limitations of SWANCC and Rapanos) by creating 

new regulatory definitions for ‘‘adjacent’’ and ‘‘tributary’’ and by expanding the connections that the agencies would consider sufficient 

to create federal jurisdiction. 

The agencies initiated this process by issuing a draft guidance in 

April 2011. In November 2011, the agencies performed limited outreach to state and local governments on this draft guidance. The 

agencies did not conduct any small business outreach. Stakeholders 

on all sides of the issue objected to the agencies’ attempt to make 

substantive changes to federal jurisdiction through guidance. 

In September 2013, the agencies withdrew the draft guidance 

and announced that the guidance would form the basis for a new 


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4Letter dated May 14, 2015 to Senator Rounds, from Jo-Ellen Darcy, Assistant Secretary of 

the Army for Civil Works. 5See McCarthy and Darcy, May 27, 2015, blog describing the final rule (‘‘It doesn’t protect 

new kinds of waters that the Clean Water Act didn’t historically cover.’’) (emphasis added), 

available at http://blog.epa.gov/blog/?s=water 

regulation. At the same time, EPA released a draft report entitled 

‘‘Connectivity of Streams and Wetlands to Downstream Waters: A 

Review and Synthesis of the Scientific Evidence’’ (Connectivity Report). According to EPA, that report, when final, was intended to 

form the scientific basis of its new waters of the United States definition. 

EPA and the Corps did not perform a federalism consultation or 

small business outreach when developing the proposed rule. 

EPA and the Corps published a proposed rule to redefine ‘‘waters 

of the United States’’ on April 21, 2014, and took comments on the 

proposal until November 14, 2014. After developing and releasing 

their proposal, the agencies (primarily EPA) held over 400 meetings and webinars to explain it, often with a power point presentation. 

EPA released its final Connectivity Report on January 15, 2015, 

two months after the close of the comment period. 

EPA and the Corps released the final rule on May 27, 2015, less 

than 200 days after the close of the comment period even though 

the agencies received over 20,000 unique comments on the proposed rule, 10% (about 2,000) of which were substantive.4 The final 

rule was published in the Federal Register on June 29, 2015. 80 

Fed. Reg. 37054. 

Substantive Concerns with Final Rule 

An objective of the agencies has been to ‘‘restore’’ federal jurisdiction to the reach claimed by the agencies before the Supreme Court 

issued its opinions in SWANCC and Rapanos, as they requested 

Congress to do in 2009.5 However, no agency has the authority to 

issue a rule to return to an interpretation of a statute that the Supreme Court has declared invalid. Once the Supreme Court has 

identified the limits of authority under a federal law, only Congress 

can change those limits. 

Unfortunately, the final rule fails to recognize the limits established by the Court and even the limits the agencies themselves 

recognized ‘‘historically.’’ 

These issues are exemplified by treatment of ‘‘tributaries’’ in the 

final rule, and by the type of connections that the rule relies on to 

assert federal control over ‘‘ephemeral,’’ ‘‘adjacent,’’ and ‘‘other’’ 

waters. 

Tributaries 

Current regulations include ‘‘tributaries’’ in the definition of 

‘‘waters of the United States’’ but do not define that term. However, the new definition of tributary in the final rule exceeds both 

the limits established by the Supreme Court and prior agency interpretations of that term. 

The tributary definition in the final rule codifies the agency practice of relying on a ‘‘bed, bank, and ordinary high water mark’’ to 


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6The Corps of Engineers already considers a bed and bank to be part of an ordinary high 

water mark. See Corps of Engineers Regulatory Guidance Letter 05–05 (2005). 7 Connectivity Report, at 38. 

8 Robert Pierce, Technical Principles Related To Establishing the Limits of Jurisdiction for 

Section 404 of the Clean Water Act (April 2003), at section 5.2. 9 80 Fed. Reg. at 37077. 

10See Frequently Asked Questions about the NHD & WBD Datasets, revised 10/20/14, available at http://nhd.usgs.gov/Frequently+Asked+Questions+about+the+NHD+&+WBD.htm 11 Compare 80 Fed. Reg. at 37077 with A Guide to Ordinary High Water Mark (OHWM) Delineation for Non-Perennial Streams in the Western Mountains, Valleys, and Coast Region of 

the United States (Aug. 2014) at 39–40. 

identify the geographic extent of CWA jurisdiction over streams,6

even though this approach was rejected by both the plurality and 

Justice Kennedy in Rapanos. According to Justice Kennedy, the 

Corps’ existing standard for tributaries provides no assurance that 

they (or adjacent wetlands) would significantly affect downstream 

navigable water. 

[T]he breadth of this standard—which seems to leave 

wide room for regulation of drains, ditches, and streams 

remote from any navigable-in-fact water and carrying only 

minor water volumes toward it—precludes its adoption as 

the determinative measure of whether adjacent wetlands 

are likely to play an important role in the integrity of an 

aquatic system comprising navigable waters as traditionally understood. Indeed, in many cases wetlands adjacent 

to tributaries covered by this standard might appear little 

more related to navigable-in-fact waters than were the isolated ponds held to fall beyond the Act’s scope in 

SWANCC. 

547 U.S. at 781–82 (emphasis added). 

Contrary to EPA’s assertions, the record for this rulemaking does 

not demonstrate that all features that meet the definition of ‘‘tributary’’ in the final rule will have a significant effect on navigable 

water. For example, the tributary studies in EPA’s Connectivity 

Report that refer to downstream water do not discuss navigable 

water. Instead, EPA assumes, without any record support, that an 

impact to downstream water is equivalent to an impact on navigable water.7 Further, there are no studies that correlate the existence of an ordinary high water mark and the magnitude, frequency, or duration of flow.8

The preamble to the final rule further diminishes the relevance 

of the presence of water in a tributary by declaring that a bed, 

bank and ordinary high water mark can be identified using remote 

sensing information, including light detecting and ranging data 

(LiDAR),9 even though the United States Geological Survey warns 

that LiDAR can identify any ‘‘network’’ and is more likely to identify land, not water.10 The preamble even says that these remote 

sensing technologies can be used in lieu of a site visit, even though 

Corps guidance says this is not appropriate.11

The preamble to the final rule also makes it clear that agencies 

will rely on historic conditions, as well as current conditions, to 

identify a tributary: 

Such reliable methods that can indicate prior existence 

of bed and banks and other indicators of ordinary high 

water mark include, but are not limited to, lake and 

stream gage data, elevation data, spillway height, historic 


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12 80 Fed. Reg. at 37077. 13 Id. 14http://parkviewdc.com/2011/09/08/hidden-washington-tiber-creek/ 15See Technical Support Document for the Clean Water Rule: Definition of Waters of the 

United States (May 27, 2015) U.S. Environmental Protection Agency, at 266 (‘‘[M]any southwestern streams lose streamflow to channel transmission losses as runoff travels downstream. 

Connection of runoff and associated materials in ephemeral and intermittent streams to downstream waters is therefore a function of distance, the relative magnitude of the runoff event, 

and transmission losses.’’) (citations omitted) (hereinafter TSD). 16 Connectivity Report at B.5 (Case Study: Southwestern Intermittent and Ephemeral 

Streams) (describing ‘‘downstream disappearance of surface flow’’ and groundwater recharge occurring over ‘‘months to centuries’’). 17Testimony of Robert J. Pierce, Ph.D., before the Subcommittee on Fisheries, Water, and 

Wildlife of the Committee on Environment and Public Works, May 19, 2015, at 5 (‘‘Here we are 

today with EPA trying to regulate ephemeral channels whose only connection to navigable 

waters of the U.S. are that they might recharge ground water.’’). 

water flow records, flood predictions, statistical evidence, 

the use of reference conditions, or through the remote 

sensing and desktop tools described above.12

The agencies claim that historic records are needed to address 

‘‘unpermitted alteration of streams’’ but do not acknowledge that 

such alteration may have occurred before any permits were required.13 For example, part of Constitution Avenue in Washington, 

D.C. was once Tiber Creek. Tiber Creek was incorporated into the 

city’s sewer system in 1880 and maps exist depicting this former 

stream.14 Under the final rule, this part of D.C.’s sewer system 

could be a ‘‘water of the United States.’’ 

While the new definition of ‘‘tributary’’ requires it to ‘‘contribute 

flow’’ to a navigable water, the background documents for the final 

rule make it clear that the seepage of water into a groundwater aquifer is considered ‘‘contributing flow,’’ if the same aquifer recharges surface water at any distance or any period of time in the 

future. This means that under the final rule an ephemeral stream 

can disappear completely through evaporation and infiltration and 

still be considered a ‘‘water of the United States.’’ 

EPA’s Technical Support Document for the final rule acknowledges that not all ephemeral streams that will be regulated actually connect to navigable water.15 In fact, the conclusions in the 

Connectivity Report that ephemeral streams impact downstream 

water are based on studies of ephemeral streams in the arid west, 

many of which evaporate and infiltrate the ground instead of flowing downstream.16 Despite these facts, the final rule nonetheless 

asserts that all ephemeral streams are ‘‘waters of the United 

States’’ as long as they have a bed, bank, and ordinary high water 

mark. 

The agencies satisfy the requirement to ‘‘contribute flow’’ by assuming that an ephemeral stream contributes flow to navigable 

water through groundwater.17 In doing so, it appears that the 

agencies also are assuming that water from a stream that infiltrates the ground is the same water that recharges a surface 

stream at another location. As noted by Dr. Robert Pierce, there is 

no scientific basis for that assumption. In response to questions 

from Senator Fisher, he notes: ‘‘the Rule with its Preamble and 

Study ignores the fact that most base flows in navigable waters or 

the U.S. are likely formed from ground water sources not related 


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18 June 16, 2015 Responses of Robert J. Pierce, Ph.D. to Follow-Up Questions for Written Submission, at 2 (citing Heath, R. C. 1983. Basic ground-water hydrology. U.S. Geological Survey, 

Water-Supply Paper 2220,Washington, D.C.). 19See Branch Guidance Letter, COE, Baltimore District, CENAB–OP–R, No.95–01, Oct. 17, 

1994 (‘‘Project Managers are frequently required to determine the upstream limits of regulatory 

jurisdiction, including differentiating between intermittent streams, which are regulated (33 

CFR § 328.3(a)(3)), and ephemeral streams, which are not regulated.’’). 20 Responses of Jo-Ellen Darcy, Assistant Secretary of the Army (Civil Works) to Environment 

and Public Works WOTUS Hearing February 4, 2015, Follow-Up Questions for Written Submission, at 1–2 (‘‘The Corps has never interpreted groundwater to be a jurisdictional water or a hydrologic connection because the Clean Water Act (CWA) does not provide such authority.’’) (emphasis added). 

to the water in the upstream channel that is morphologically connected to the navigable water of the U.S.’’ 18

As a result, the new definition of tributary not only goes beyond 

the limits identified by both the plurality and Justice Kennedy in 

Rapanos, it also is broader than prior agency practice. For example, the Corps has not always considered ephemeral streams to be 

tributaries.19 And, the Corps has never considered the movement 

of water through a groundwater aquifer to be a basis for creating 

federal jurisdiction. According to Assistant Secretary of the Army, 

Jo-Ellen Darcy, ‘‘the Clean Water Act (CWA) does not provide such 

authority.’’ 20 Despite this admission, the final rule adopts this approach. 

Finally, as discussed below, by expressly including man-made or 

man-altered features in the definition of ‘‘tributary’’ the final rule 

creates significant confusion about the status of ditches and other 

water management features. 

Adjacent Waters 

The current definition of ‘‘waters of the United States’’ regulates 

adjacent wetlands, not adjacent waters. ‘‘Adjacent’’ is defined as 

‘‘bordering, contiguous, or neighboring,’’ and the definition includes 

‘‘[w]etlands separated from other waters of the United States by 

man-made dikes or barriers, natural river berms, beach dunes and 

the like.’’ 

The final rule expands this definition to apply to ‘‘all waters’’ 

that are adjacent, rather than wetlands only, and by adding a definition of ‘‘neighboring’’ that encompasses: 

(A) all waters located within 100 feet of the ordinary high 

water mark of a water identified in paragraphs (a)(1) through 

(5) of this section. The entire water is neighboring if a portion 

is located within 100 feet of the ordinary high water mark; 

(B) all waters located within the 100-year floodplain of a 

water identified in paragraphs (a)(1) through (5) of this section 

and not more than 1,500 feet from the ordinary high water 

mark of such water. The entire water is neighboring if a portion is located within 1,500 feet of the ordinary high water 

mark and within the 100-year floodplain; 

(C) all waters located within 1,500 feet of the high tide line 

of a water identified in paragraphs (a)(1) or (5) of this section, 

and all waters within 1,500 feet of the ordinary high water 

mark of the Great Lakes. The entire water is neighboring if a 

portion is located within 1,500 feet of the high tide line or 

within 1,500 feet of the ordinary high water mark of the Great 

Lakes. 

Like the new definition of tributary, the expansion of the term 

‘‘adjacent’’ by creating a definition of ‘‘neighboring’’ exceeds both 


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21 80 Fed. Reg. at 37082. 22For example, some Corps Districts consider 200 feet to be the geographic limit of adjacency 

or the practice of other Corp Districts recognize that multiple barriers can eliminate adjacency. 

See 2004 GAO Report at 3, 17–18. 23 Email dated June 5, 2015, from Jennifer Greer, U.S. Army Corps of Engineers. 

the limits established by the Supreme Court and prior agency interpretations of the term ‘‘adjacent.’’ 

According to the preamble, the distances adopted to establish the 

boundaries of waters that will be considered ‘‘neighboring’’ and 

therefore jurisdictional by rule, are ‘‘[b]ased on a review of the scientific literature, the agencies’ technical expertise and experience, 

and the implementation value of drawing clear lines.’’ 21 Despite 

this assertion, there is nothing in the scientific literature that supports the conclusion that all waters within these geographic limits 

are ‘‘inseparably bound up with the ‘waters’ of the United States’’ 

such that they fall within the definition of ‘‘adjacency’’ approved by 

the Supreme Court in Riverside Bayview. See 474 U.S. at 134; see 

also SWANCC, 531 U.S. at 167 (quoting Riverside Bayview). 

Further, there is nothing in the record for this rulemaking that 

describes the technical expertise and experience relied upon to establish these boundaries. As this definition is not consistent with 

current practice it is difficult to understand how it is based on 

agency experience.22

Finally, as discussed below, by expanding jurisdiction by rule to 

include all adjacent ‘‘waters’’ rather than adjacent wetlands, the 

final rule creates confusion about the status of water management 

features. 

Other waters with a ‘‘significant nexus’’ 

The final rule allows the agencies to regulate ‘‘all waters’’ in two 

categories if the agencies determine on a case by case basis that 

the waters have a ‘‘significant nexus’’ to a navigable or interstate 

water or territorial sea. 

The first category consists of prairie potholes, Carolina Bays and 

Delmarva Bays, Pocosins, Western vernal pools, and Texas coastal 

prairie wetlands. All wetlands in each of these categories will be 

combined for the ‘‘significant nexus’’ analysis. The agencies expect 

this aggregation will result in the wetlands ‘‘being found jurisdictional.’’ 79 Fed. Reg. 22188, 22215 (Apr. 21, 2014). 

This means that wetlands found on farmers’ fields and other 

land in North Dakota, South Dakota, Iowa, Montana, Minnesota, 

Wisconsin, Texas, Louisiana, Mississippi, Alabama, Georgia, Florida, South Carolina, North Carolina, Tennessee, Virginia, Maryland, Delaware, New Jersey, New York, Connecticut, Massachusetts, New Hampshire, Maine, and California will be regulated as 

‘‘waters of the United States’’ even though they are geographically 

isolated from any navigable or interstate water or territorial sea. 

This is a radical change from current law. The Corps of Engineers has not identified any isolated water or wetland as a water 

of the United States since the Supreme Court issued its 2001 opinion in SWANCC.23 The U.S. Fish and Wildlife Service acknowledges that 88% of prairie potholes are isolated and therefore not 

regulated so they work with farmers throughout the upper Midwest 


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24See Dahl, T.E. 2014. Status and trends of prairie wetlands in the United States 1997 to 

2009. U.S. Department of the Interior; Fish and Wildlife Service, Ecological Services, Washington, D.C., at 48. 25http://www.fws.gov/mountain-prairie/pfw/sd/sd10.htm 26http://www.fws.gov/mountain-prairie/pfw/sd/sd10.htm 27 80 Fed. Reg. at 37059. 28 Economic Analysis of the EPA-Army Clean Water Rule (May 2015), U.S. Environmental 

Protection Agency, at 11 (emphasis added) (hereinafter EPA Economic Analysis). 

on cooperative conservation measures to address habitat.24 Prairie 

pothole wetlands total 5.3 million acres.25 Currently, ‘‘[w]etland 

easements and Partners for Fish and Wildlife agreements protect 

these important wetlands on private land.’’ 26 The final rule instead 

brings those acres of private land under federal control. 

The second category is ‘‘all water’’ in the 100-year flood plain of 

a navigable or interstate water or a territorial sea and ‘‘all water’’ 

within 4,000 of the ordinary high water mark of any jurisdictional 

water, including a tributary, as defined above. There is no explanation for the geographic limit in the preamble to the final rule 

other than the claim that: ‘‘the agencies’ experience and expertise 

indicate that there are many waters within the 100-year floodplain 

of a traditional navigable water, interstate water, or the territorial 

seas or out to 4,000 feet where the science demonstrates that they 

have a significant effect on downstream waters.’’ 27 As with the definition of ‘‘adjacent,’’ there is no information in the record to support this claim. 

EPA’s economic analysis of final rule suggests that the geographic limits may be outcome based, rather than scientifically 

based. In this document, EPA states: ‘‘The agencies have determined that the vast majority of the nation’s water features are located within 4,000 feet of a covered tributary, traditional navigable 

water, interstate water, or territorial sea.’’ 28 So, as in the proposed 

rule, under the final rule the vast majority of water features are 

potentially regulated. 

Under the final rule, a significant nexus can be established by 

any one of the following functions: 

(i) Sediment trapping, 

(ii) Nutrient recycling, 

(iii) Pollutant trapping, transformation, filtering, and transport, 

(iv) Retention and attenuation of flood waters, 

(v) Runoff storage, 

(vi) Contribution of flow, 

(vii) Export of organic matter, 

(viii) Export of food resources, and 

(ix) Provision of life cycle dependent aquatic habitat (such as 

foraging, feeding, nesting, breeding, spawning, or use as a 

nursery area) for species located in a water identified in paragraphs (a)(1) through (3) of this section. 

Use of aquatic habitat, groundwater flow, overland flow, and 

water retention or storage as bases for jurisdiction is particularly 

expansive. 

Aquatic habitat 

The preamble to the final rule says ‘‘non-aquatic species or species such as non-resident migratory birds do not demonstrate a life 

cycle dependency on the identified aquatic resources and are not 


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29 80 Fed. Reg. at 37094. 30 80 Fed. Reg. at 37094. 31TSD, at 334 (citations omitted). 32 Connectivity Report, at 5–5. 33 Connectivity Report at 5–5. 34TSD, at 112. 

evidence of biological connectivity for purposes of this rule.’’ 29 However, use of water as habitat by ‘‘resident’’ birds and other animals 

and the movement of insects and plants via any kind of bird (referred to as ‘‘dispersal’’) can establish jurisdiction. According to the 

preamble: 

Evidence of biological connectivity and the effect on 

waters can be found by identifying: resident aquatic or 

semi-aquatic species present in the case-specific water and 

the tributary system (e.g., amphibians, aquatic and semiaquatic reptiles, aquatic birds); whether those species 

show life-cycle dependency on the identified aquatic resources (foraging, feeding, nesting, breeding, spawning, 

use as a nursery area, etc.); and whether there is reason 

to expect presence or dispersal around the case-specific 

water, and if so whether such dispersal extends to the tributary system or beyond or from the tributary system to the 

case-specific water.30

The breadth of these considerations is demonstrated by the analysis in the Technical Support Document for prairie potholes, Carolina Bays and Delmarva Bays, Pocosins, Western vernal pools, and 

Texas coastal prairie wetlands. 

For example, the movement of species to and from prairie potholes is considered a connection that can establish jurisdiction: 

Waterfowl often move between prairie wetlands during 

the breeding season in search of food and cover, and some 

species also use habitats within the river network as wetlands dry or freeze. In addition, a diverse assemblage of 

microorganisms, invertebrates, amphibians, reptiles, and 

sometimes fish, use potholes to feed or reproduce. Overland movement of amphibians and mammals can connect 

potholes to each other and to lakes and streams, and some 

species can disperse over long distances to feed and 

breed.31

The Technical Support Document makes this assertion even 

though the Connectivity Report says direct evidence of such connections ‘‘is sparse.’’ 32

‘‘Dispersal’’ also is considered a connection that can create jurisdiction. According to EPA ‘‘[p]lants and invertebrates disperse to 

and from prairie potholes via ‘hitchhiking’ on waterfowl.’’ 33 Further, according to the agencies, any bird, even a migratory bird, 

can establish jurisdiction by dispersing seeds and insects. ‘‘Migratory birds can be an important vector of long-distance dispersal of 

plants and invertebrates between non-floodplain wetlands and the 

river network, although their influence has not been quantified.’’ 34

In fact, the Technical Support Document refers 30 times to dispersal by organisms such as birds and mammals of plants (as 

seeds) and invertebrates (as eggs), including the following statement: ‘‘Plants and invertebrates can also travel by becoming atVerDate Sep 11 2014 06:07 Jul 18, 2015 Jkt 049010 PO 00000 Frm 00011 Fmt 6659 Sfmt 6602 E:\HR\OC\SR084.XXX SR084

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35TSD, at 334 (emphasis added). 36TSD, at 338 (citations omitted). 37 Connectivity Report at 5–8 38 Id. at 5–9. 39See TSD at 129, 132, 148. 40 80 Fed. Reg. at 37063, 37070–72, 37085–86, 37089–90, 37093–94. 41TSD, at 344. 42 Connectivity Report at B.5. 

tached to or consumed and excreted by waterfowl. Id. (citing 

Amezaga et al. 2002). Dispersal via waterfowl can occur over long 

distances. Id. (citing Mueller and van der Valk 2002).’’ 35

The analysis is similarly broad for Carolina and Delmarva Bays 

and vernal pools. According to the Technical Support Document, 

‘‘Carolina and Delmarva bays provide valuable habitat and food 

web support for numerous plant and animal species that can move 

between bays and other water bodies.’’ 36 With respect to vernal 

pools, EPA admits ‘‘[d]irect surface connection of vernal pools to 

downstream waters is infrequent.’’ 37 But, according to EPA, they 

can still be regulated because ‘‘they are connected to other aquatic 

habitats through dispersal.’’ 38

As a result, even though in SWANCC the Supreme Court said 

CWA jurisdiction cannot be based on the use of water as habitat 

by a migratory bird, under the final rule seeds and insects that 

move between navigable water and an isolated wetland by ‘‘hitchhiking’’ in the intestines of a bird are sufficient to assert federal 

control. With this new rationale, the agencies can regulate the 

same waters that the Supreme Court said were outside the scope 

of the CWA. This is a stark departure from the 2008 guidance, 

which states: 

It is clear . . . that Justice Kennedy did not intend for 

the significant nexus standard to be applied in a manner 

that would result in assertion of jurisdiction over waters 

that he and the other justices determined were not jurisdictional in SWANCC. Nothing in this guidance should be 

interpreted as providing authority to assert jurisdiction 

over waters deemed non jurisdictional by SWANCC. 

Groundwater and over land flow 

The agencies also claim jurisdiction based on groundwater connections and overland flow of water. They call groundwater a ‘‘hydrologic flowpath’’ even though, as noted above, Assistant Secretary 

Darcy has told the Committee that jurisdiction based on connections through groundwater would violate the CWA.39 Similarly, 

overland flow of water and shallow subsurface flow is considered a 

connection.40 This means that the reference to ‘‘contribution of 

flow’’ in the ‘‘significant nexus’’ definition includes groundwater 

flow and sheet flow of rainwater or snowmelt over than land and 

movement of water through soil. 

For example, according to the discussion of vernal pools in the 

Technical Support Document, they ‘‘typically lack permanent 

inflows from or outflows to streams and other water bodies,’’ they 

can be ‘‘connected temporarily to such waters via surface or shallow 

subsurface flow (flow through) or groundwater exchange (recharge).’’41 According to EPA’s Connectivity Study, groundwater recharge can take from months to centuries.42


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43See, e.g., TSD, at 99, 177. 44 Connectivity Report, at 5-4. See also, Connectivity Report at B-18 (‘‘Studies in some regions 

show a lack of association between pothole water storage and aspects of streamflow.’’). 45TSD, at 98. 46 80 Fed. Reg. at 37076. 

Water storage 

Under the final rule, water storage alone is sufficient to establish 

jurisdiction.43

The agencies claim that prairie potholes can prevent flooding. 

However, that is not true of all prairie potholes. The Connectivity 

Report says: 

Considered collectively, unaltered prairie pothole systems have infrequent direct surface-water connections to 

downstream waters. Evidence of the consequences of these 

connections on downstream waters is variable. Some studies document measurable effects of water storage capacity 

of potholes on flood attenuation and maintenance of 

stream baseflow, whereas other studies show no effect of 

pothole water storage on streamflows.44

Despite this variability, the agencies claim they can assert jurisdiction over prairie potholes and all other isolated (‘‘non-floodplain’’) wetlands and waters based on the following connections: 

Wetlands and open waters in non-floodplain landscape 

settings (hereafter called ‘‘non-floodplain wetlands’’) provide numerous functions that benefit downstream water 

integrity. These functions include storage of floodwater; recharge of ground water that sustains river baseflow; retention and transformation of nutrients, metals, and pesticides; export of organisms or reproductive propagules 

(e.g., seeds, eggs, spores) to downstream waters; and habitats needed for stream species. This diverse group of wetlands (e.g., many prairie potholes, vernal pools, playa 

lakes) can be connected to downstream waters through 

surface-water, shallow subsurface-water, and groundwater 

flows and through biological and chemical connections.45

After reviewing the connections identified in the analysis of prairie potholes, Carolina Bays and Delmarva Bays, Pocosins, Western 

vernal pools, and Texas coastal prairie wetlands, it is difficult to 

identify any water that the agencies could not find jurisdictional 

under the final rule. 

Exclusions 

According to EPA, under the final rule the ‘‘vast majority of the 

nation’s water features’’ can be regulated, unless excluded. The 

final rule excludes some water features, but the exclusions are limited. 

For example, the final rule excludes ditches with ephemeral or 

intermittent flow. The terms ‘‘ephemeral’’ and ‘‘intermittent’’ are 

defined in the preamble using the definitions similar to these used 

by the Corps of Engineers in its nationwide permit program.46

However, these terms do not address water management systems 

into which water is intentionally introduced. For example, ditches 

can be used to manage irrigation water. Irrigation water is not 

ephemeral flow because it does not flow ‘‘only in response to preVerDate Sep 11 2014 06:07 Jul 18, 2015 Jkt 049010 PO 00000 Frm 00013 Fmt 6659 Sfmt 6602 E:\HR\OC\SR084.XXX SR084

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47 Id. 48 Id. 49 80 Fed. Reg. at 37077. 50 45 Fed. Reg. 48,620 (July 21, 1980) (suspending the limitation that the exclusion is limited 

to manmade bodies of water to address this issue). 

cipitation events in a typical year.’’ 47 Irrigation ditches also do not 

hold intermittent flow because groundwater does not provide part 

of the ditch’s flow.48

The final rule excludes ditches with ephemeral or intermittent 

flow only if the ditch is not a ‘‘relocated tributary’’ or ‘‘excavated 

in a tributary.’’ However, the definition of tributary includes 

‘‘ditches,’’ so the definition and the exclusion are circular. It is not 

clear where one ends and the other begins. This limitation also 

fails to recognize that many ditches are located in low areas that, 

if they were unaltered, might be considered a tributary under the 

final rule. In cases where ditches were created long before permits 

were required the final rule creates significant uncertainty by giving the agencies the authority to claim they can infer the prior existence of a tributary where none exists today.49 Under the final 

rule, if the agencies think a tributary once existed where a ditch 

is located today, they can claim that the ditch is a ‘‘water of the 

United States.’’ 

Further, the treatment of ditches in the final rule is different 

from the treatment of waste treatment systems and grassed waterways. In creating a regulatory exemption for waste treatment systems, EPA expressly recognized that this exemption was intended 

to cover pre-existing treatment systems, even if built in waters of 

the United States, or impoundments of waters of the United 

States.50 However, no such consideration is given to ditches that 

predate the enactment of the CWA. The new exemption for grassed 

waterways also is more expansive. If a grassed waterway was ‘‘lawfully constructed’’ it is not a ‘‘water of the United States.’’ In contrast, roadside and other ditches that were lawfully constructed in 

an area that the agencies now consider to be a ‘‘tributary’’ will be 

regulated under the final rule. There is no explanation for this inconsistent treatment. 

The exclusion for ditches that do not flow into a navigable or 

interstate water or territorial sea uses the same language found in 

the definition of ‘‘tributary’’ regarding flow ‘‘directly or through another water.’’ As noted in the discussion of the tributary definition 

above, the agencies are taking the position that ‘‘flow’’ includes infiltration into a groundwater aquifer. This interpretation will 

render this ditch exclusion meaningless. 

The final rule excludes a number of water features, including 

stormwater control features and wastewater recycling features. 

However, each of these exclusions applies only to features built on 

‘‘dry land.’’ The final rule does not define ‘‘dry land.’’ Further, unlike waste treatment systems or grassed waterways, no consideration is given to the fact that water management features that may 

have been built before enactment of the CWA or water management features may have been lawfully constructed, with section 

404 permits, after the enactment of the CWA. 

Finally, there is no exclusion in the final rule for the management of water that is not wastewater or stormwater, such as water 

supply systems. This means that reservoirs and canals used to 


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51For example, the United States Geological Survey found that as a result of reservoirs, percolation following irrigation, and seepage from distribution system of the Columbia Basin 

Project, groundwater in the Pasco basin had increased by five million acre feet. 52 CWA § 101(g). 53 123 Cong. Rec. &. S19677-78, (daily ed., Dec. 15, 1977) (floor statement of Senator Wallop). 

move water around would be regulated if considered adjacent 

waters or tributaries. This expansion of jurisdiction raises significant questions about control over these water supplies. For example, if a reservoir or distribution system is leaking and that leak 

is recharging a groundwater aquifer, is a 404 permit required to fix 

the leak? Could EPA, notwithstanding water rights, object to or 

place conditions on the permit to if EPA wants that groundwater 

recharge to continue? 51 If a distribution system is leaking and the 

water from the leak has created a wetland, is a 404 permit required to fix the leak and, notwithstanding water rights, could EPA 

object to the permit in order to maintain the wetland? As these 

questions demonstrate, without an exemption for water management features, the final rule could give Corps, EPA, and citizen litigants the ability to use section 404 permits reallocate water resources. This result would be directly contrary to the CWA, which 

states that: 

It is the policy of Congress that the authority of each 

State to allocate quantities of water within its jurisdiction 

shall not be superseded, abrogated or otherwise impaired 

by this Act. It is the further policy of Congress that nothing in this Act shall be construed to supersede or abrogate 

rights to quantities of water which have been established 

by any State.52

Section 101(g) was added to the Act in 1977. According to its 

sponsor: 

This amendment came immediately after the release of 

the Issue and Option Papers for the Water Resource Policy 

Study now being conducted by the Water Resources Council. Several of the options contained in that paper called 

for the use of Federal water quality legislation to effect 

Federal purposes that were not strictly related to water 

quality. Those other purposes might include, but were not 

limited to Federal land use planning, plant siting and production planning purposes. This ‘‘State’s jurisdiction’’ 

amendment reaffirms that it is the policy of Congress that 

this act is to be used for water quality purposes only.53

The final rule ignores section 101(g) of the CWA and will implement that Act ‘‘to effect Federal purposes’’ that go far beyond water 

quality. 

Procedural Concerns with Proposed Rule 

Timing of Connectivity Report 

The Connectivity Report was not finalized before EPA issued the 

proposed rule and the final Connectivity Report was not available 

during the public comment period on the WOTUS proposed rule. 

The agencies developed and published a proposed rule in April 

2014, before the Draft Connectivity Report had been reviewed by 

EPA’s Science Advisory Report. In fact, that review was not comVerDate Sep 11 2014 06:07 Jul 18, 2015 Jkt 049010 PO 00000 Frm 00015 Fmt 6659 Sfmt 6602 E:\HR\OC\SR084.XXX SR084

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54 80 Fed. Reg. at 37102. 55 EPA Docket No. EPA–HQ–OW–2011–0880–15784, at 3. 56Testimony of the Honorable Sallie Clark, Commissioner, El Paso County, Colorado, on behalf of the National Association of Counties, before the Senate Committee on Environment and 

Public Works and the House Committee on Transportation and Infrastructure, February 4, 

2015. 57 80 Fed. Reg. at 37102. 58 Id. 

pleted until October 17, 2014, and the Final Connectivity Report 

was not completed until January 15, 2015, over two months after 

the comment period had ended on the proposed rule. Thus, the report that is purported to be the foundation for the agencies’ rule 

was not available for public comment. 

Failure to Comply with Executive Order 13132 on Federalism 

In developing the proposed rule, the agencies failed to conduct 

outreach to state and local governments. The limited outreach conducted in 2011 on the draft guidance and presentations made after 

issuing the proposed rule are no substitute for consultation when 

developing a proposal and do not meet the requirements of Executive Order 13132 on Federalism. 

Instead of conducting a federalism consultation, the agencies asserted that: ‘‘This rule does not have federalism implications. It 

will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the 

distribution of power and responsibilities among the various levels 

of government.’’ 54 Comments on the proposed rule by the U.S. Conference of Mayors, the National League of Cities, the National Association of Counties, the National Association of Regional Councils, the National Association of County Engineers, the American 

Public Works Association, and the National Association of Flood 

and Storm Water Management Agencies strongly disagree with 

this conclusion.55 In testimony before this Committee, a witness 

representing the National Association of Counties also strongly disagreed.56

Failure to Comply with the Regulatory Flexibility Act 

The Regulatory Flexibility Act requires agencies to examine the 

impacts of a proposed regulation on small governmental entities 

and on small businesses. In the final rule, EPA and the Corps certified that the proposed rule will not have significant economic impacts on a substantial number of small entities.57 To support this 

certification, the agencies claim that the final rule will have no adverse economic impact. They based this claim on an assertion that 

the scope of jurisdiction under the final rule is narrower than 

under existing regulations.58

The Chief Counsel for the Small Business Administration Office 

of Advocacy determined that the agencies’ certification was in error 

and improper. Comments filed by SBA Office of Advocacy state: 

Advocacy and small businesses are extremely concerned 

about the rule as proposed. The rule will have a direct and 

potentially costly impact on small businesses. The limited 

economic analysis which the agencies submitted with the 

rule provides ample evidence of a potentially significant 

economic impact. Advocacy advises the agencies to withVerDate Sep 11 2014 06:07 Jul 18, 2015 Jkt 049010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\SR084.XXX SR084

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59 EPA Docket No. EPA–HQ–OW–2011–0880–7958, at 9. 60Testimony of Charles Maresca, Director of Interagency Affairs, Office of Advocacy, U.S. 

Small Business Administration, before the Senate Committee on Small Business and Entrepreneurship, May 19, 2015. 61 EPA Docket No. EPA-HQ-OW-2011-0880-15784, at 2. 62 80 Fed. Reg. at 37102. 63 EPA Economic Analysis, at 15-16. 64Testimony of Susan Metzger, before the Subcommittee on Fisheries, Water, and Wildlife of 

the Committee on Environment and Public Works, May 19, 2015, transcript, at 46. 

draw the rule and conduct a SBAR panel prior to promulgating any further rule on this issue.59

The SBA Office of Advocacy reiterated this positon in testimony 

before the Senate Committee on Small Business and Entrepreneurship.60

The comments filed by the U.S. Conference of Mayors, the National League of Cities, the National Association of Counties, the 

National Association of Regional Councils, the National Association 

of County Engineers, the American Public Works Association, and 

the National Association of Flood and Storm Water Management 

Agencies make the same point with respect to impacts on small 

governmental entities, saying ‘‘based on analysis by our cities and 

counties, the proposed rule will have a significant impact on all 

local governments, but on small communities particularly.’’ 61

Failure to conduct an Unfunded Mandates Reform Act analysis 

The final rule states that ‘‘[t]his action does not contain any unfunded mandate under the regulatory provisions of Title II of the 

Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1531– 

1538), and does not significantly or uniquely affect small governments.’’ 62 In support of this claim the agencies assert that, as a 

definition, the final rule imposes no enforceable duties on small 

governments. As noted above, local governments and the SBA Office of Advocacy disagree with this analysis and believe that the 

final rule will impose direct and significant costs on small local 

governments and small businesses. 

Failure to conduct an adequate economic analysis of the proposed rule 

The Regulatory Flexibility Act also requires an economic analysis. However, the agencies chose not to comply with that Act and 

instead EPA conducted a superficial analysis of the impacts of the 

rule. 

For example, EPA’s economic analysis asserts that states will 

incur no costs associated with water quality standards development, monitoring, or developing total maximum daily loads for impaired waters.63 States disagree. Susan Metzger, the current Deputy Secretary for Agriculture for the State of Kansas, and the 

former head of the state water program, testified that the rule will 

increase the miles of federally regulated streams in Kansas by 

460%, increasing state costs to run their water quality program.64

This conclusion is supported by an evaluation conducted by the 

State of Missouri. After an extensive stakeholder process, the State 

of Missouri recently adopted changes to its stream classification 

program, expanding it to include all streams represented in the 

1:100,000 scale of the USGS National Hydrology Dataset. Based on 


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65Missouri Department of Natural Resources, Regulatory Impact Report, In Preparation for 

Proposing, An Amendment to 10 CSR 20-7.031, Missouri Water Quality Standards (June 3, 

2011), at 25, 35 

an evaluation of the aquatic resources of the state, Missouri chose 

not to regulate ephemeral waters. According to the State, if it had 

to regulate all stream miles discernable at the 1:24,000 scale of the 

National Hydrology Dataset, it would add an additional 158,565 

miles of stream to its existing classified waters network and would 

more than double the State’s monitoring costs from about $11.2 

million a year to $24.2 million.65

OBJECTIVES OF THE LEGISLATION

The purpose of S. 1140 is to return this rulemaking to EPA and 

the Corps to develop a new definition of ‘‘waters of the United 

States’’ that respects the limits of Clean Water Act jurisdiction 

identified by the SWANCC and Rapanos courts, and that is developed in consultation with state and local governments after taking 

into account small business and small local government impacts, 

unfunded mandates, Executive Orders 12866 and 13563, relating to 

improving regulation, and Executive Order 13604, relating to federal permitting and review of infrastructure projects. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title: Federal Water Quality Protection Act 

Sec. 2. Findings 

(1) Cooperative federalism and consultation with states are the 

policy of Congress under section 101(b) of the Federal Water Pollution Control Act. 

(2) Adequate consultation is necessary when regulations are developed. 

(3) States have robust programs that regulate more water than 

is covered by federal regulation. 

(4) The Administrative Procedure Act requires notice of and an 

opportunity to comment on scientific information, definitions, exclusions, and standards. 

Sec. 3. Definitions 

This section defines terms used in the Federal Water Quality 

Protection Act, including Administrator, body of water, interstate 

waters, isolated, municipality, normal year, point source, public notice and an opportunity for comment, Secretary, stream, surface 

hydrologic connection, traditional navigable water, and wetlands. 

The definitions of the terms ‘‘interstate water’’ and ‘‘traditional 

navigable water’’ are based on current regulatory definitions. Adoption of these regulatory definitions should not be construed as legislative acquiescence to the interpretations of these terms set forth 

in the technical support document located in the record for the 

final rule. 

The definition of the term ‘‘normal year’’ makes it clear that the 

hydrologic normal is to be determined by the Natural Resources 

Conservation Service of the Department of Agriculture. 

The definition of the term ‘‘municipality’’ is broader that the definition of that term in the Federal Water Pollution Control Act beVerDate Sep 11 2014 06:07 Jul 18, 2015 Jkt 049010 PO 00000 Frm 00018 Fmt 6659 Sfmt 6602 E:\HR\OC\SR084.XXX SR084

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cause it includes entities with authority over water distribution, as 

well as waste disposal. 

The term ‘‘stream’’ is defined as a naturally formed channel that 

has a bed, bank, and ordinary high water mark. S. 1140 recommends that federal jurisdiction over streams be based on flow, 

so not all streams meeting this definition would be federally regulated. 

The definition of the term ‘‘surface hydrologic connection’’ acknowledges that such a connection may exist even when water is 

not present. S. 1140 recommends that federal jurisdiction over 

streams be based on flow, so not all streams with a ‘‘surface hydrologic connection’’ would be federally regulated. 

Sec. 4. Revised definition; principles, and process 

This section requires EPA and the Corp to develop a revised definition of ‘‘waters of the United States’’ following the principles and 

process set forth in the section. 

(a) Revised definition. This subsection states that a revision to or 

guidance on the definition of the term ‘‘navigable waters’’ or 

‘‘waters of the United States’’ shall have no force and effect unless 

the revision adheres to the principles set forth subsection (b) and 

the Administrator and the Secretary carry out each action described in subsection (c). 

The Committee intends that the final rule published on June 29, 

2015, at 80 Fed. Reg. 37054, be set aside. Under this subsection, 

the agencies are directed to develop a new regulatory definition of 

‘‘waters of the United States.’’ 

(b) Principles. This subsection requires the Secretary and the Administrator to adhere to the following principles in promulgating a 

revised regulatory definition: 

(1) The Federal Water Pollution Control Act is an Act to protect 

traditional navigable waters from pollution. 

This paragraph in no way revises or supersedes the statement in 

section 101(a) of the Federal Water Pollution Control Act that the 

objective of the Act is to ‘‘restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.’’ It reinforces 

the language in section 101(a)(1)–(7) that establishes water quality 

and pollution elimination and control goals and policies ‘‘to achieve 

this objective.’’ 

The Committee is concerned that the final rule seeks to expand 

the authority of the Administrator and the Secretary into areas beyond water quality, including habitat, water supply, and flood control. 

(2) The definition of waters of the United States should include 

the following: 

(A) Traditional navigable water and interstate waters. 

This subparagraph reaffirms regulation of these categories of 

waters, which are federally regulated under current law. 

(B) Reaches of streams identified on maps created using the 

USGS National Hydrology Dataset Plus at the 1:100,000 scale from 

Reach Address Database Version 3.1, consistent with the scale and 

reach address database used by the Administrator during July 

2009 in conjunction with information on drinking water source protection areas. 


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In this subparagraph, S. 1140 addresses EPA’s concerns about 

the burden placed on agencies to prove they have jurisdiction over 

streams by creating a rebuttable presumption that the same 

streams that EPA has identified as sources of drinking water are 

waters of the United States. 

EPA relies on the following paper for the proposition that for the 

proposition that about 58% of all waterways are intermittent, 

ephemeral, or headwater streams. Nadeau, Tracie-Lynn, and Mark 

Cable Rains, 2007. ‘‘Hydrological Connectivity Between Headwater 

Streams and Downstream Waters: How Science Can Inform Policy.’’ Journal of the American Water Resources Association 

(JAWRA) 43(1):118–133. Nadeau and Rains conducted their analysis using the National Hydrography Dataset (NHD) medium resolution data at the 1:100,000 scale. Id., at 120. In 2009, EPA updated that analysis using the ‘‘medium’’ resolution NHDPlus at 

1:100,000-scale from the Reach Address Database Version 3.1, and 

compared it to drinking water source water protection areas. Based 

on this analysis, EPA concluded that 117 million people get their 

drinking water from intermittent, ephemeral or headwater 

streams. See http://water.epa.gov/lawsregs/guidance/wetlands/ 

upload/2009l12l28lwetlandslsciencelsurfacedrinking 

lwater lsurfaceldrinkinglwaterlstudylsummary.pdf 

The Committee agrees that most stream reaches that EPA has 

identified as drinking water sources, as well as other streams that 

are visible at the NHD medium resolution, are likely to be streams 

with actual flow that can carry pollutants to navigable waters. Except in the arid west, most ephemeral streams will not be visible 

at the NHD medium resolution. 

(C) Reaches of streams with surface flow in a normal year of sufficient volume, duration, and frequency that pollutants in that 

reach of stream would degrade the water quality of a traditional 

navigable water, based on a quantifiable and statistically valid 

measure of flow. 

The Committee recognizes that the NHD medium resolution 

dataset is not a perfect tool, and there may be streams that have 

sufficient flow to carry pollutants to navigable water that are not 

visible on maps created with that dataset. With this subparagraph, 

S. 1140 also recommends a final definition of waters of the United 

States also include other stream reaches with sufficient flow in a 

normal year that could carry pollutants that would degrade navigable water. 

(D) Wetlands next to other waters of the U.S. that in a normal 

year prevent the movement of pollutants to navigable water. 

The Committee recognizes that wetlands next to waters of the 

United States can filter pollutants and keep them out of navigable 

water. The wetlands identified in this subparagraph are those that 

the Supreme Court identified as ‘‘inseparably bound up with the 

‘waters’ of the United States.’’ SWANCC, 531 U.S. at 167 (quoting 

Riverside Bayview). 

(3) The definition of waters of the United States should not include the following: 

(A) Water located below the surface of the land, including soil 

water and groundwater. 

This subparagraph makes it clear that jurisdiction under the 

Federal Water Pollution Control Act applies only to surface water. 


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This language is necessary because expansion of jurisdiction 

through evolving administrative interpretations is extending 

vertically, beneath the ground, as well as laterally across the landscape. For example, there are studies in EPA’s Connectivity Report 

that reference ‘‘soil water.’’ As discussed above, the final rule considers groundwater to be a flow path that can create federal jurisdiction. According to the testimony presented to the Committee by 

Dr. Robert Pierce, on May 19, 2015, some Regional Supplements to 

the 1987 Wetlands Delineation Manual suggest that water that is 

water located 12 inches below the surface of the land can be considered to be a wetland even when the soils at the surface of the land 

are not saturated. Under this interpretation, a high groundwater 

table and Alaskan permafrost could be considered a water of the 

United States. For example, in Alaska, permafrost can be located 

within 12 inches of the surface and also can be a confining layer 

that traps water in the soil, below the surface. This language forestalls attempts to expand federal jurisdiction to these subsurface 

waters, where saturation does not reach the surface of the land. 

(B) Water not located within a body of water. 

(C) Isolated ponds, whether natural or manmade, including a 

farm pond, fish pond, quarry, mine pit, ornamental pond, swimming pool, construction pit, fire control pond, sediment pond, and 

any other isolated facility or system that holds water. 

(D) Systems used for collecting, conveying, holding or treating 

stormwater or floodwater (including roadside and agricultural 

ditches), wastewater, water supplies, and agricultural or silvicultural water. 

This subparagraph gives recognition to the general rule that 

water that is being managed as stormwater, floodwater, wastewater, and domestic, agricultural or silvicultural water supply is 

subject to an intervening use and is not a water of the United 

States. As such, the discharge of such water back into a ‘‘water of 

the United States,’’ after the intervening use, may require a permit. See, e.g., 73 Fed. Reg. 33697, 33704 (June 13, 2008) (‘‘For example, if the water is withdrawn to be used as cooling water, 

drinking water, irrigation, or any other use such that it is no 

longer a water of the U.S. before being returned to a water of the 

U.S., the water has been subjected to an intervening use.’’). The extent to which this exemption applies to systems created in navigable water or, after the date of enactment of the Clean Water Act, 

in other waters of the United States, is determined pursuant to 

paragraph (4) below. 

(E) Reaches of streams that do not have enough surface flow of 

volume, duration, and frequency in a normal year to contribute pollutants to and degrade the water quality of a traditional navigable 

water. 

As noted above, S. 1140 creates a presumption that the same 

streams that EPA has identified as sources of drinking water are 

‘‘waters of the United States.’’ As is also noted above, the maps 

EPA used to identify those streams are not perfect, so this is a rebuttable presumption. For example, some ephemeral streams in the 

arid west may be visible at the NHD medium resolution and yet 

may not supply water to a navigable water. In paragraph (2)(C), 

discussed above, S. 1140 recommends that additional streams may 

be regulated based on actual flow, even if they are not visible on 


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the NHD medium resolution map. As a corollary to that provision, 

this subparagraph recommends that the presumption that a stream 

is regulated because it is visible on the NHD medium resolution 

map can be rebutted based on evidence of a lack of actual flow. 

(F) Prior converted cropland. 

Prior converted cropland is not a water of the United States. 

This subparagraph includes a cross reference to the definition of 

prior converted cropland in U.S. Department of Agriculture regulations to make it clear that USDA determines what land meets the 

definition of prior converted cropland. 

(G) Water removed from the waters of the United States pursuant to a section 404 or a section 10 permit. 

This subparagraph recognizes the fact that the United States can 

affirmatively surrender jurisdiction over a water of the United 

States pursuant to a permit. 

(4) Unless another exclusion applies, some water management 

systems described under paragraph (3)(D) may still be waters of 

the U.S. if they were constructed within waters of the U.S. 

(A) Systems or components of systems converted from a water of 

the United States without a 404 permit after the effective date of 

regulations that implement section 404 should remain waters of 

the United States. 

With this subparagraph, the Committee recommends that exemptions for water management systems under paragraph (3)(D) 

above, would not apply to systems created in regulated waters after 

federal regulations that control dredging and filling of waters of the 

United States came into effect, unless the creation of the system 

was authorized under a section 404 permit or the system was exempt from section 404 permitting under exemptions for normal 

farming, silviculture, and ranching activities, for the construction 

or maintenance of farm or stock ponds or irrigation ditches, or for 

the maintenance of drainage ditches; or the system was otherwise 

exempt from Clean Water Act permitting. 

(B) Systems or components of systems converted from a traditional navigable water at any time (including before the enactment 

of the Federal Water Pollution Control Act) should remain a water 

of the United States unless the system is identified as a point 

source in a 402 permit (such as an MS4 permit); the water being 

managed is exempt irrigation return flow or agricultural 

stormwater; the construction or use of the system is exempt normal 

farming, silviculture, and ranching activities, or exempt construction or maintenance of farm or stock ponds or irrigation ditches, or 

exempt maintenance of drainage ditches; or the system is a waste 

treatment system. 

With this subparagraph, the Committee recognizes that navigable waters remain federally regulated unless the United States 

affirmatively surrenders jurisdiction. Under this section, surrender 

of jurisdiction can be memorialized in a section 402 permit (as well 

as a section 404 permit or section 10 permit as noted in paragraph 

(3)(G) above). For example, if a navigable river is incorporated into 

a municipal separate storm sewer system and the permit for that 

system does not affirmatively surrender jurisdiction over the river, 

then the river would remain a regulated navigable water of the 

United States. Certain permitting exemptions also are deemed to 

be a surrender of jurisdiction. 


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(5) In promulgating a revised definition of waters of the United 

States the Corps of Engineers and the Administrator must take 

into consideration the following: 

(A) Use of a body of water by an organism is not a basis for establishing Federal jurisdiction. 

In SWANCC, the Corps claimed jurisdiction over an isolated 

pond based on a claim that use of waters used by migratory birds 

and endangered species affected interstate commerce. The Supreme 

Court held that, as a matter of statutory interpretation, use of a 

pond as habitat by 121 species of birds is not grounds for asserting 

federal jurisdiction over the pond even though some of the birds 

were migratory. SWANCC, at 164, 171–72. The former ‘‘Migratory 

Bird Rule’’ that was invalidated by the Supreme Court was narrower than the jurisdiction now claimed by EPA and the Corps. 

Under that so-called rule, the Corps did not claim jurisdiction 

based on the use of water as habitat by birds that are not migratory or species that are not endangered. Yet, the final rule claims 

this authority. The Committee finds it incredible that the agencies 

assert that, following SWANCC, they can expand jurisdiction beyond the ‘‘Migratory Bird Rule’’ to encompass use of water as habitat by any species other than a migratory bird. This subparagraph 

prevents the agencies from doing so. 

(B) Supplying water to a groundwater aquifer, or storing water 

in isolated bodies of water is not a basis for establishing Federal 

jurisdiction. 

As discussed above, the Corps of Engineers has never considered 

the movement of water through a groundwater aquifer to be a 

basis for creating federal jurisdiction and the Assistant Secretary 

of the Army, Jo-Ellen Darcy, ‘‘the Clean Water Act (CWA) does not 

provide such authority.’’ This subparagraph precludes EPA and the 

Corps from expanding federal authority by considering groundwater to be a flow path. 

As discussed above, water storage also is not currently a basis 

for federal jurisdiction. In fact, water storage and water supplies 

are expressly left to states under the Federal Water Pollution Control Act. This subparagraph precludes EPA and the Corps from 

considering water storage to be within their authority under the 

Federal Water Pollution Control Act. 

(C) The water cycle connects all water over sufficiently long periods of time and distances, but does not provide a basis for establishing Federal jurisdiction. 

Water moves in a cycle that includes rainfall, the sheet flow of 

rain over land, infiltration into groundwater, and the movement of 

water through an aquifer, often over long periods of time. If the 

water cycle was a basis for federal jurisdiction, all water could be 

regulated. This subparagraph precludes use of this theory as a 

basis for regulating water. 

(6) Waters of the United States should be identified on maps to 

promote certainty and transparency. 

This subparagraph does not say that a map would necessarily establish federal jurisdiction. But, as jurisdictional determinations 

are made, presenting them on maps would help promote certainty 

and transparency. 

(b) Consultation and Report. 


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This subsection sets forth the process that EPA and the Corps 

of Engineers must follow in developing a new definition of ‘‘waters 

of the United States.’’(1) Federalism. 

(A) The Corps of Engineers and EPA must follow the consultation process established in the Federalism Executive Order, whether or not they determine the definition of waters of the U.S. affects 

other levels of government or implicates federalism concerns. 

The Federalism Executive Order applies to all regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on the States, 

on the relationship between the national government and the 

States, or on the distribution of power and responsibilities among 

the various levels of government. The order does not specify who 

determines that such effects occur. In the WOTUS rulemaking, the 

Administrator and the Secretary claimed that the rule does not 

have federalism implications. As noted above, states and local governments strongly disagree, as does the Committee. This section 

ensures that a new regulation is developed following federalism 

consultation. 

(B) Before a proposal is made, EPA and the Corps must seek 

input and advice from Governors, state departments with authority 

over water quality and supply, state departments of agriculture, 

and local governments. The topics of consultation must include: 

categories of waters that should be subject to Federal jurisdiction, 

role of the states, and whether channels in which water is present 

only during or for a short time after a precipitation event are correctly categorized as geomorphological features rather than hydrologic features. 

This section describes the timing and subject matters of the federalism consultation. After proposing a revision to the definition of 

waters of the United States, EPA conducted many meetings and 

gave many power point presentations, but such actions do not meet 

the consultation requirements of the Executive Order or S. 1140. 

The Committee believes that to be meaningful, consultation must 

take place before an agency has issued a proposed rule. 

(2) Regulatory Flexibility. 

The Corps of Engineers and EPA must conduct the economic 

analyses and Small Business Regulatory Enforcement Fairness Act 

panels required under the Regulatory Flexibility Act, whether or 

not they determine the definition of waters of the U.S. has a significant impact on small governments or small businesses, and 

whether or not they consider the costs to be direct or indirect. 

The Regulatory Flexibility Act requires an agency to prepare a 

regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the 

rule will not have a significant economic impact on a substantial 

number of small entities. The Administrator and the Secretary 

made such a certification with respect to the waters of the United 

States rule. However, as noted above, the Small Business Administration Office of Advocacy strongly disagrees with that certification 

and has commented and testified that EPA and the Corps failed to 

meet their obligations under the Regulatory Flexibility Act. The 

Committee agrees with the Small Business Administration and S. 

1140 would require the agencies to consider impacts on small busiVerDate Sep 11 2014 06:07 Jul 18, 2015 Jkt 049010 PO 00000 Frm 00024 Fmt 6659 Sfmt 6602 E:\HR\OC\SR084.XXX SR084

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nesses and small local governments of a revised definition of 

waters of the United States. 

(3) Unfunded Mandates. 

The Corps of Engineers and EPA must do an unfunded mandates 

analysis, whether or not they consider the impacts of the definition 

of waters of the U.S. to be direct or indirect, or determine that expenditures resulting from the regulation would meet the thresholds 

established under the Unfunded Mandates Reform Act. 

Under the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 

1531–1538), an unfunded mandate includes regulations that impose an enforceable duty on state, local, or tribal governments as 

well as the private sector. Agencies are required to do an unfunded 

mandates analysis and develop an effective process to permit elected officers of State, local, and tribal governments to provide meaningful and timely input in the development of regulatory proposals 

containing significant Federal intergovernmental mandates. In developing the WOTUS rule, EPA and the Corps did not follow this 

process. Instead, the agencies claim that the rule imposes no enforceable duties on local governments or any other person. The 

Committee strongly disagrees. State and local governments are required to implement regulatory programs, provide public services, 

and maintain public infrastructure. As noted in May 19, 2015 testimony provided by Susan Metzger, representing the State of Kansas, and Mark Pifher, representing Colorado Springs Utilities and 

the National Water Resources Association, as well as February 4, 

2015 testimony provided by Sallie Clark, representing El Paso 

County, Colorado and the National Association of Counties, the 

WOTUS rule will impose significant costs on states, who face expanded costs resulting from state water quality programs, and local 

governments, who manage municipal separate storm sewer systems, roadside ditches, and water supply systems and face increased permitting and maintenance costs. This paragraph requires 

EPA and the Corps to conduct the analyses and outreach required 

under the Unfunded Mandates Reform Act. 

(4) Improving Regulation and Regulatory Review. 

The Corps of Engineers and EPA must follow Executive Orders 

12866 and 13563, relating to improving regulation, whether or not 

they consider a definition of waters of the U.S. is a significant regulatory action or significantly affects state, local and tribal governments. 

EPA and the Corps did consider the WOTUS rule to be a major 

rule that is subject to Executive Orders 12866 and 13563. However, 

the Committee believes that the agencies failed to meet the requirement of Executive Order 12866 to impose the least burden on 

society, consistent with obtaining regulatory objectives, taking into 

account, among other things, and to the maximum extent practicable, the costs of cumulative regulations; to ‘‘act only with the 

greatest caution where State or local governments have identified 

uncertainties regarding the constitutional or statutory authority of 

the national government;’’ and to strictly adhere to constitutional 

principles. In addition, the Committee believes that the agencies 

failed to meet the public participation requirements of section 2 of 

Executive Order 13563, which require an opportunity for public 

comment regarding all pertinent parts of the rulemaking docket, 

including relevant scientific and technical findings and seeking the 


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views of those who are likely to be affected before issuing a notice 

of proposed rulemaking. 

(5) Improving performance of Federal permitting and review of 

infrastructure projects. 

The Corps of Engineers and EPA must consider Executive Order 

13604, relating to federal permitting and review of infrastructure 

projects. 

The Committee believes that the agencies failed to meet the requirement in Executive Order 13604 to reduce permitting times 

and regulatory reviews. This paragraph requires consideration of 

such issues. 

(6) Report.—This paragraph requires the Corps of Engineers and 

EPA to provide to the Committee, not less than 30 days before proposing a regulation, a report that describes how the proposed regulations comply with the requirements in paragraphs (1)–(5). 

(7) Timing.—This paragraph requires the Corps of Engineers and 

EPA to use best efforts to provide not less than 180 days for consultation, 120 days for notice and comment, and to publish a final 

rule by the end of 2016. 

Sec. 5. Measure of flow 

This section directs the Corps of Engineers to provide quantifiable and statistically valid measures of the volume, duration, and 

frequency of flow in streams in different geographic areas that 

would, in a normal year, allow pollutants in reaches of streams in 

those geographic areas to flow to and degrade the water quality of 

a traditional navigable water, after providing notice and an opportunity for comment. 

Sec. 6. Report to Congress 

This section requires GAO to issue a report on jurisdictional determinations every three years, including an analysis of the interpretations of the regulation by the districts of the Corps of Engineers and the regional offices of the EPA, whether the interpretations are inconsistent, measures to reduce inconsistency, and the 

impacts of interpretations on Federal permitting and review of infrastructure projects. 

Sec. 7. Effect of Act 

This section states that the Act does not affect the authority to 

require a permit to discharge pollutants from a point source to navigable water or to take an enforcement action; the regulation of 

water transfers; State authority under State law, or the definition 

of point source. 

LEGISLATIVE HISTORY

S. 1140 was introduced on April 30, 2015. The bill was referred 

to the Committee on Environment and Public Works. The Committee considered the bill in a business meeting on June 10, 2015. 

An amendment in the nature of a substitute was approved, and the 

Committee ordered the bill reported to the Senate. 

HEARINGS

A joint oversight hearing on ‘‘Impacts of the Proposed Waters of 

the United States Rule on State and Local Governments’’ was held 


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with the House Committee on Transportation and Infrastructure 

on February 4, 2015. 

Field hearings on ‘‘Impacts of the Proposed Waters of the United 

States Rule on State and Local Governments and Stakeholders,’’ 

were held on March 14, 2015, in Lincoln, Nebraska; on April 6, 

2015, in Anchorage, Alaska; and on April 8, 2015, in Fairbanks, 

Alaska. 

The Committee held a legislative hearing on S. 1140 on May 19, 

2015. 

ROLLCALL VOTES

The Committee on Environment and Public Works met to consider S. 1140 on June 10, 2015. An amendment in the nature of 

a substitute made technical and conforming changes. The Committee considered the amendment in the nature of a substitute as 

original text and favorably reported the bill, as amended by the 

substitute, by a roll call vote of 11–9. 

Amendments rejected 

A total of five amendments to the bill were offered and not approved by the Committee, as follows: 

1. Cardin-Boxer Amendment #1—An amendment that would replace the statement that the Federal Water Pollution Control Act 

is an Act to protect traditional navigable waters from pollution 

with section 101 of that Act, and would allow the Administrator 

and the Corps to vitiate an Act of Congress by making a determination relating to exposure to toxic pollutants and risk of illness 

(rejected by a roll call vote of 9 yeas, 11 nays). 

2. Boxer #1—An amendment that would add a savings clause 

that says nothing affects EPA or the Corps’ authority to protect the 

quality of surface water for public water supplies (rejected by a roll 

call vote of 9 yeas, 11 nays). 

3. Boxer #5—An amendment that would allow the Administrator 

and the Secretary to vitiate an Act of Congress by making a determination that implementation of the bill is likely to increase costs; 

lengthen the time to obtain a permit; or perpetuate the lack of regulatory predictability and certainty (rejected by a roll call vote of 

9 yeas, 11 nays). 

4. Markey #1—An amendment that would allow the Administrator to vitiate an Act of Congress by making a determination that 

implementation of the bill is likely to increase the probability of 

toxic exposure to toxic pollutants in amounts that adversely impact 

public health of people served by drinking water systems (rejected 

by a roll call vote of 9 yeas, 11 nays). 

5. Boxer # 6—An amendment that would allow the Administrator 

to vitiate an Act of Congress by making a determination that implementation of the bill will increase interstate movement of pollutants, increase costs incurred by States, or cause or contribute to 

the impairment of a surface or coastal waters of a State (rejected 

by a roll call vote of 9 yeas, 11 nays). 

Final committee vote to report 

S. 1140, as amended by the amendment in the nature of a substitute, was approved and ordered to be reported to the full Senate. 

The roll call vote to report the bill was 11 to 9 in favor (Senators 


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Inhofe, Vitter, Barrasso, Capito, Crapo, Boozman, Sessions, Wicker, 

Fischer, Rounds, and Sullivan voted yea, and Senators Boxer, Carper, Cardin, Sanders, Whitehouse, Merkley, Gillibrand, Booker, 

and Markey voted nay). 

REGULATORY IMPACT STATEMENT

In compliance with section 11(b) of rule XXVI of the Standing 

Rules of the Senate, the committee finds that S. 1140 does not create any additional regulatory burdens, nor will it cause any adverse impact on the personal privacy of individuals. 

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995 

(Public Law 104–4), the committee notes that the Congressional 

Budget Office found, ‘S. 1140 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform 

Act (UMRA).’ 

COST OF LEGISLATION

Section 403 of the Congressional Budget and Impoundment Control Act requires that a statement of the cost of the reported bill, 

prepared by the Congressional Budget Office, be included in the report. That statement follows: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, June 30, 2015 

Hon. JIM INHOFE, 

Chairman, Committee on Environment and Public Works, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for S. 1140, the Federal Water 

Quality Protection Act. 

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

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

Sincerely, 

KEITH HALL. 

Enclosure. 

S. 1140—Federal Water Quality Protection Act 

Under S. 1140, any rule issued after February 4, 2015, that 

would redefine the scope of waters protected by the Clean Water 

Act (CWA) would need to meet certain criteria. Some of the criteria 

specified in the bill concern the process used by the Environmental 

Protection Agency (EPA) and the U.S. Army Corps of Engineers 

(Corps) when issuing a final rule. Other criteria concern the types 

of streams and wetlands that could be considered ‘‘waters of the 

United States.’’ (Under the CWA, EPA and the Corps, along with 

the states, serve as co-regulators of activities affecting the nation’s 

waters.) S. 1140 also would require that EPA and the Corps use 

their best efforts to issue a final rule by December 31, 2016, that 

defines ‘‘waters of the United States.’’ 

According to EPA, enacting this legislation would result in the 

withdrawal of the proposed rule published in the Federal Register 


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on April 21, 2014, that defines the scope of waters protected by the 

CWA (that is, ‘‘waters of the United States’’). CBO estimates that 

implementing S. 1140 would cost $5 million over the 2016–2020 period, subject to the availability of appropriations, to develop a new 

proposed rule. The legislation would affect direct spending because 

it would reduce fees collected by the Corps for issuing permits 

under the CWA (such fees are offsetting receipts, which are treated 

as reductions in direct spending). However, CBO estimates that the 

change in the amounts collected from those fees would be negligible. Because the legislation would affect direct spending, pay-asyou-go procedures apply. Enacting S. 1140 would not affect revenues. 

In developing a new proposed rule under S. 1140, EPA and the 

Corps would be required to consult with state and local regulatory 

officials to review alternative approaches for defining ‘‘waters of the 

United States.’’ EPA and the Corps also would be required to prepare a report for the Congress that describes how the proposed new 

regulation would meet the criteria specified in the bill. In addition, 

S. 1140 would require the Government Accountability Office to report on the regulations issued by EPA and the Corps every three 

years. Finally, S. 1140 would require the Corps to establish statistically valid measures of the volume, duration, and frequency of 

water flow in streams. 

Under S. 1140, CBO expects that funds that would have been 

used to develop and implement the current proposed rule and to 

draft guidance would be used to develop an alternative regulatory 

proposal. However, based on EPA’s prior experience in developing 

new regulations, CBO estimates that it would cost an additional $4 

million over the 2016–2020 period to conduct extensive outreach efforts to interested parties, address public comments, and prepare 

a report to the Congress. We also expect that it would cost the 

Corps about $1 million over the same period to conduct field work 

and data analysis in coordination with the EPA to develop new 

rules for issuing permits under an alternative regulatory proposal. 

The April 24, 2014, proposed rule would expand the area covered 

by CWA regulations and lead to an increase in the number of permits issued by the Corps under the CWA to dispose of dredged or 

fill material from development projects near regulated waters. CBO 

expects that the legislation would probably reduce or delay that expansion, leading to a reduction in the number of permits issued 

over the next several years. Because the amount charged for those 

permits is small, CBO estimates enacting S. 1140 would have an 

insignificant effect on offsetting receipts over the 2016–2025 period. 

S. 1140 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act; any costs 

incurred by state, local, or tribal governments would result from 

participation in a voluntary federal program. 

On April 27, 2015, CBO transmitted a cost estimate for H.R. 

1732, the Regulatory Integrity Protection Act of 2015, as ordered 

reported by the House Committee on Transportation and Infrastructure on April 15, 2015. Both pieces of legislation would require 

EPA and the Corps to develop a new CWA rule. Although the bills 

include different requirements throughout the rulemaking process, 

the estimated costs for the bills are the same. 


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

This estimate was approved by Theresa Gullo, Assistant Director 

for Budget Analysis. 


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MINORITY VIEWS OF BOXER, CARDIN, SANDERS, WHITEHOUSE, MERKLEY, GILLIBRAND, BOOKER, AND MARICEY 

ON S. 1140, AS REPORTED BY THE EPW COMMITTEE 

Nothing is more important than protecting the lives and livelihoods of the American people. The Clean Water Act prevents the 

uncontrolled pollution of the streams, rivers, and lakes where our 

children swim and provide drinking water to millions of Americans. 

If the Clean Water Act does not apply, polluters can dump raw 

sewage that would sicken children swimming in contaminated 

waters. Factories can discharge industrial waste containing heavy 

metals, such as arsenic, lead, and selenium. Drilling companies can 

discharge wastewater containing known carcinogens like benzene 

and chromium-6. We need a strong Clean Water Act to ensure this 

does not happen. 

Decades ago, the United States experienced widespread damage 

and degradation to our environment—the Cuyahoga River in Cleveland, Ohio, was on fire and our lakes were dying from pollution. 

The American people demanded action, and in 1972 Congress 

passed the Clean Water Act by an overwhelming bipartisan majority. 

Clean water is vital to a healthy economy. Large, diverse parts 

of the economy depend on clean water for profitable safe operations, this includes: manufacturing and energy production to agriculture, food service, tourism, and recreation. 

Recent events in Toledo, Ohio, remind us of that our drinking 

water remains vulnerable to pollution. Half a million residents in 

this major American city went without drinking water for days because nutrient pollution washed into Lake Erie, causing toxic algae 

to bloom. 

There have been three major Supreme Court cases that have 

taken up the issue of the jurisdictional scope of waters protected 

by the Clean Water Act (CWA). The two cases decided in 2001 and 

2006 created confusion as to what is protected by the CWA. 

On March 25, 2014 the EPA and Army Corps jointly released a 

proposed rule to define the regulatory term ‘‘waters of the United 

States’’ ’ under the CWA. The Clean Water Act prohibits the discharge of any pollutant by any person, unless in compliance with 

one of the enumerated permitting provisions in the Act. Sections 

402 and 404 govern discharges to ‘‘navigable waters,’’ which are defined in section 502(7) of the CWA as ‘‘the waters of the United 

States, including the territorial seas.’’ The Clean Water Rule, 

which was finalized on May 27, 2015, protects drinking water for 

up to 117 million Americans. The rule has been subject to extensive 

public comment (over 1 million comments received) and stakeholder outreach. EPA made significant changes in the final rule to 

address issues raised during the comment period. 


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The rulemaking was in response to Supreme Court cases in 2001 

and 2006 that created confusion as to what is protected by the Act. 

Republican Senators and House Members (through floor statements, hearings, and letters) repeatedly asked the EPA and Corps 

of Engineers to clarify the jurisdiction of the CWA and conduct a 

rulemaking on the jurisdiction of the Clean Water Act. As recently 

as April 2013, Republican Senators sent a letter to EPA asking 

them to stop processing the proposed guidance and instead focus on 

a rulemaking. The recent Clean Water Rule clarifies the confusion 

caused by the Supreme Court decisions, and responds to the Congressional demands for a rule. The rule also provides greater clarity as to which waters are protected by the Clean Water Act (based 

on over 1200 peer reviewed, and published scientific studies), only 

protects waters historically protected by the Clean Water Act, does 

not require any new permits for agricultural practices and explicitly includes all of the previous exemptions and exclusions that agriculture has enjoyed. 

This bill prohibits EPA from finalizing any change to its regulations until EPA conducts a new 120-day comment period, carries 

out a 180-day consultation with state and local governments, conducts analyses under 5 different statutes and executive orders, and 

reports to Congress. This is a totally unreasonable timeline. While 

this bill purports to have a new rule completed before the end of 

2016, the required comment period and consultation requirement a 

coupled with review by Office of Management and Budget (OMB) 

will necessarily delay this new rule into the next Administration. 

Further, the bill effectively changes the scope of the Clean Water 

Act by establishing extensive new statutory criteria defining the 

scope of the Act. Many of these criteria are poorly defined and depart considerably from the historical interpretation and scope of 

the Act. In addition, this bill would create more confusion for businesses and landowners by taking away new exemptions and sending EPA and the Corps back to square one to try to figure out the 

confusing new terms and standards in the bill. After years of uncertainty following two Supreme Court decisions, we should not 

pass legislation that would create more confusion and invite years 

of new litigation. 

That is why the following law professors, scientists, and environmental organizations do not support the bill reported by the EPW 

Committee, including: 

• Over 40 leading law professors that study, teach, and write 

about the Clean Water Act, who have concluded that ‘‘S. 1140 

would constitute a massive weakening of the Clean Water Act.’’ 

• Over 80 scientists with expertise in the importance of streams 

and wetlands, as well as the Society for Freshwater Science, 

• Numerous Sportsmen groups, including the American Fly Fishing Trade Association, Backcountry Hunters and Anglers, Izaalt 

Walton League of America, Theodore Roosevelt Conservation Partnership, and Trout Unlimited. 

Below is a summary of key concerns with S. 1140. 

Unnecessarily Delays Clean Water Act Improvements that People 

Want: 


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• Many stakeholder groups have called for this rulemaking, including: representatives from business, agricultural, and environmental organizations; States; Congress; the Courts; and others. • The overwhelming majority of American citizens (almost 90%) 

that reviewed the proposed rule commented favorably on it. • A recent poll of small businesses (July, 2014) found that 80% 

of small business owners support the protections for clean water 

contained in the proposed Clean Water Rule. • A recent poll by the League of Conservation Voters found that 

80% of Americans support the Clean Water Rule. 

Postpones or prevents critical protections for our Nation’s waters: 

• Clear protections for the Nation’s tributary system, and adjacent and other waters, is critical to ensuring flood impact reductions, clean drinking water, pollution control, and other functions 

to all our downstream communities. • The legislation would remove protections for millions of acres 

of wetlands, lakes, and streams that have been covered under the 

Clean Water Act for over 40 years—waters particularly important 

to sportsmen, commercial and recreational fisherman, wildlife, endangered species. 

Wastes time and government resources: 

• EPA and the Corps already have carried out the necessary consultations and analyses required by law and executive order—repeating these consultations will waste millions of dollars. • Benefits of rule are foregone for a minimum of two years and 

possibly much longer. • Significant time and expense has been invested in the current 

rulemaking by Federal agencies, states, local governments, and the 

public. This legislation would ignore that effort and require that 

much of it be repeated. 

Creates uncertainty for landowners and businesses: 

• The final Clean Water Rule makes it much clearer where the 

Clean Water Act applies, by defining what is subject to the Act and 

what is not. • The final Clean Water Rule already clarifies the uncertainty 

created by two Supreme Court decisions. However, the legislation 

creates new terms and statutory standards that would create more 

confusion and less consistency and invite further litigation. • The final rule would also establish new regulatory exemptions 

for water types that are not regulated under the Act. The legislation would block implementation of these exemptions, including exemptions for: 

• Numerous types of ditches 

• Artificial lakes and ponds 

• Water-filled depressions associated with mining or construction 

• Erosional features, including gullies and rills 

• Puddles 

• Groundwater • Features constructed to convey, treat or store stormwater 

• Wastewater recycling structures 

• Groundwater recharge basins 

BARBARA BOXER. 

BENJAMIN CARDIN. 


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SHELDON WHITEHOUSE. JEF MERKLEY. BERNARD SANDERS. KIRSTEN GILLIBRAND. CORY BOOKER. EDWARD MARKEY. 


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CHANGES IN EXISTING LAW

Section 12 of rule XXVI of the Standing Rules of the Senate requires changes in existing law made by the bill as reported to be 

shown. S. 1140 does not amend existing law. 

Æ 


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