99–006 

112TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 1st Session 112–139 

CLEAN WATER COOPERATIVE FEDERALISM ACT OF 2011 

JULY 8, 2011.—Committed to the Committee of the Whole House on the State of 

the Union and ordered to be printed 

Mr. MICA, from the Committee on Transportation and 

Infrastructure, submitted the following 

R E P O R T 

together with 

DISSENTING VIEWS 

[To accompany H.R. 2018] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Transportation and Infrastructure, to whom 

was referred the bill (H.R. 2018) to amend the Federal Water 

Pollution Control Act to preserve the authority of each State to 

make determinations relating to the State’s water quality standards, and for other purposes, having considered the same, report 

favorably thereon with an amendment and recommend that the bill 

as amended do pass. 

CONTENTS 

Page 

Purpose of the Legislation and Summary ............................................................. 3 

Background and Need for the Legislation ............................................................. 3 

Legislative History .................................................................................................. 5 

Hearings ................................................................................................................... 6 

Committee Votes ...................................................................................................... 6 

Committee Oversight Findings ............................................................................... 8 

Cost of Legislation ................................................................................................... 8 

New Budget Authority and Tax Expenditures ...................................................... 8 

Congressional Budget Office Cost Estimate .......................................................... 8 

Performance Goals and Objectives ......................................................................... 9 

Advisory of Earmarks .............................................................................................. 9 

Federal Mandates Statement ................................................................................. 10 

Preemption Clarification ......................................................................................... 10 

Advisory Committee Statement .............................................................................. 10 

Applicability to the Legislative Branch ................................................................. 10 


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Section-by-Section Analysis of the Legislation ...................................................... 10 

Changes in Existing Law Made by the Bill, as Reported ..................................... 13 

Dissenting Views ..................................................................................................... 17 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Clean Water Cooperative Federalism Act of 2011’’. 

SEC. 2. STATE WATER QUALITY STANDARDS. 

(a) STATE WATER QUALITY STANDARDS.—Section 303(c)(4) of the Federal Water 

Pollution Control Act (33 U.S.C. 1313(c)(4)) is amended— 

(1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively; 

(2) by striking ‘‘(4)’’ and inserting ‘‘(4)(A)’’; 

(3) by striking ‘‘The Administrator shall promulgate’’ and inserting the following: 

‘‘(B) The Administrator shall promulgate’’; and 

(4) by adding at the end the following: 

‘‘(C) Notwithstanding subparagraph (A)(ii), the Administrator may not promulgate 

a revised or new standard for a pollutant in any case in which the State has submitted to the Administrator and the Administrator has approved a water quality 

standard for that pollutant, unless the State concurs with the Administrator’s determination that the revised or new standard is necessary to meet the requirements 

of this Act.’’. 

(b) FEDERAL LICENSES AND PERMITS.—Section 401(a) of such Act (33 U.S.C. 

1341(a)) is amended by adding at the end the following: 

‘‘(7) With respect to any discharge, if a State or interstate agency having jurisdiction over the navigable waters at the point where the discharge originates or will 

originate determines under paragraph (1) that the discharge will comply with the 

applicable provisions of sections 301, 302, 303, 306, and 307, the Administrator may 

not take any action to supersede the determination.’’. 

(c) STATE NPDES PERMIT PROGRAMS.—Section 402(c) of such Act (42 U.S.C. 

1342(c)) is amended by adding at the end the following: 

‘‘(5) LIMITATION ON AUTHORITY OF ADMINISTRATOR TO WITHDRAW APPROVAL OF

STATE PROGRAMS.—The Administrator may not withdraw approval of a State 

program under paragraph (3) or (4), or limit Federal financial assistance for the 

State program, on the basis that the Administrator disagrees with the State regarding— 

‘‘(A) the implementation of any water quality standard that has been 

adopted by the State and approved by the Administrator under section 

303(c); or 

‘‘(B) the implementation of any Federal guidance that directs the interpretation of the State’s water quality standards.’’. 

(d) LIMITATION ON AUTHORITY OF ADMINISTRATOR TO OBJECT TO INDIVIDUAL PER- MITS.—Section 402(d) of such Act (33 U.S.C. 1342(d)) is amended by adding at the 

end the following: 

‘‘(5) The Administrator may not object under paragraph (2) to the issuance of a 

permit by a State on the basis of— 

‘‘(A) the Administrator’s interpretation of a water quality standard that has 

been adopted by the State and approved by the Administrator under section 

303(c); or 

‘‘(B) the implementation of any Federal guidance that directs the interpretation of the State’s water quality standards.’’. 

SEC. 3. PERMITS FOR DREDGED OR FILL MATERIAL. 

(a) AUTHORITY OF EPA ADMINISTRATOR.—Section 404(c) of the Federal Water Pollution Control Act (33 U.S.C. 1344(c)) is amended— 

(1) by striking ‘‘(c)’’ and inserting ‘‘(c)(1)’’; and 

(2) by adding at the end the following: 

‘‘(2) Paragraph (1) shall not apply to any permit if the State in which the discharge originates or will originate does not concur with the Administrator’s determination that the discharge will result in an unacceptable adverse effect as described in paragraph (1).’’. 

(b) STATE PERMIT PROGRAMS.—The first sentence of section 404(g)(1) of such Act 

(33 U.S.C. 1344(g)(1)) is amended by striking ‘‘The Governor of any State desiring 

to administer its own individual and general permit program for the discharge’’ and 

inserting ‘‘The Governor of any State desiring to administer its own individual and 

general permit program for some or all of the discharges’’. 


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SEC. 4. DEADLINES FOR AGENCY COMMENTS. 

Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 1344) is amended— 

(1) in subsection (m) by striking ‘‘ninetieth day’’ and inserting ‘‘30th day (or 

the 60th day if additional time is requested)’’; and 

(2) in subsection (q)— 

(A) by striking ‘‘(q)’’ and inserting ‘‘(q)(1)’’; and 

(B) by adding at the end the following: 

‘‘(2) The Administrator and the head of a department or agency referred to in 

paragraph (1) shall each submit any comments with respect to an application for 

a permit under subsection (a) or (e) not later than the 30th day (or the 60th day 

if additional time is requested) after the date of receipt of an application for a permit under that subsection.’’. 

SEC. 5. APPLICABILITY OF AMENDMENTS. 

The amendments made by this Act shall apply to actions taken on or after the 

date of enactment of this Act, including actions taken with respect to permit applications that are pending or revised or new standards that are being promulgated 

as of such date of enactment. 

PURPOSE OF THE LEGISLATION AND SUMMARY

The ‘‘Clean Water Cooperative Federalism Act of 2011,’’ H.R. 

2018, amends the Federal Water Pollution Control Act to restore 

the long-standing relationship between states and the U.S. Environmental Protection Agency as co-regulators under the Act and 

preserve the authority of each state to make determinations relating to the state’s water quality standards and permitting. 

BACKGROUND AND NEED FOR THE LEGISLATION

The objective of the Federal Water Pollution Control Act (commonly known as the ‘‘Clean Water Act’’ or the ‘‘CWA’’) is to restore 

and maintain the chemical, physical, and biological integrity of the 

nation’s waters. The primary mechanism for achieving this objective is the CWA’s prohibition on the discharge into a waterbody of 

a pollutant without a National Pollutant Discharge Elimination 

System (‘‘NPDES’’) permit. NPDES permits are a basic regulatory 

tool of the CWA. The CWA also regulates, through a separate permit program, the discharge of dredged or fill material into waterbodies, including wetlands. The U.S. Environmental Protection 

Agency (‘‘EPA’’) has the basic responsibility for administering and 

enforcing most of the CWA, and the U.S. Army Corps of Engineers 

(‘‘Corps’’) has lead responsibility for administering the dredged or 

fill (section 404) permit program. 

The CWA calls on states to establish water quality standards for 

the waterbodies in their states. Water quality standards are to 

serve as a mechanism to establish goals for the quality of the Nation’s waters and as a regulatory basis when standardized technology controls for point source discharges are determined to be inadequate to meet the water quality standards for a waterbody and 

water quality-based controls are to be developed. States are required to periodically (at least once each three years) review their 

water quality standards and, as appropriate, modify and adopt new 

standards. Water quality standards define the goals for a waterbody by designating its uses, setting water quality criteria to protect those uses, and establishing general policy provisions to protect water quality. 

The CWA does not contemplate a single, federally-led water quality program. Rather, Congress intended the states and EPA to imVerDate Mar 15 2010 04:39 Jul 09, 2011 Jkt 099006 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\HR139.XXX HR139

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plement the CWA as a federal-state partnership where the states 

and EPA act as co-regulators. The CWA established a system 

where states can receive EPA approval to implement water quality 

programs under state law, in lieu of federal implementation. These 

states are called ‘‘authorized states.’’ Under the CWA, 47 states 

and territories have been authorized to implement NPDES permits 

and enforce permits. 

Even when a state has the lead authority to implement the 

CWA’s programs, EPA retains residual authority under the CWA 

to review certain actions by the state in implementing the CWA. 

For example, when a state proposes issuing an NPDES permit, 

EPA may review and object to it, and when a state adopts a new 

or revised water quality standard, the state is to submit such 

standards to EPA for review and approval/disapproval. EPA also 

retains authority to oversee and object to the Corps’ issuance of 

section 404 permits for the discharge of dredged or fill material. 

Once EPA has approved a state standard or permit, or a Corps section 404 permit, the implementation and interpretation of that 

standard or permit is left to the state or the Corps, respectively. 

Recently, however, EPA has abandoned its proper role of approving state programs and ensuring that the standards that states 

adopt meet the minimum requirements of the CWA. Instead, EPA 

has decided to get involved in the implementation of state standards, and in second-guessing states with respect to how standards 

are to be implemented and even second-guessing EPA’s own prior 

determinations that a state standard meets the minimum requirements of the CWA. EPA also has inserted itself into the states’ and 

the Corps’ permit issuance decisions and is second-guessing state 

and Corps permitting decisions. 

For example, in November 2010, EPA decided to federally promulgate water quality standards for nutrients in Florida, even 

though the state was well underway in developing its own, scientifically defensible nutrient standards for the state, and even though 

EPA had earlier approved Florida’s nutrient criteria development 

plans. In addition, EPA has begun pressing states in other ways to 

adopt nutrient standards and implement other CWA limitations in 

NPDES discharge permits. EPA has reminded states of its position 

that states with authorized CWA permitting authority cannot issue 

permits in the face of an agency objection, and has threatened to 

hold up permits from issuance or withhold Federal financial assistance from states. 

EPA also formalized in 2009, with the Corps and the Department 

of Interior, an extra-regulatory review process, referred to as an 

‘‘Enhanced Coordination Process,’’ of CWA section 404 dredged or 

fill permits for Appalachian region surface coal mining projects. 

This new process added a minimum of 60 days and potentially 

many months of review to the existing review process entirely outside of, and in addition to, the existing section 404 permitting procedures and timelines. At the end of this new process, only if issues 

identified by EPA are resolved in individual permit applications 

may those permits move forward to the Corps for processing and 

incorporation of new permit terms or conditions dictated by EPA 

during the process. If EPA’s concerns remain unresolved at the 

close of the process period, EPA then may initiate ‘‘veto’’ procedures to prohibit the issuance of a permit. In practice, EPA has utiVerDate Mar 15 2010 04:39 Jul 09, 2011 Jkt 099006 PO 00000 Frm 00004 Fmt 6659 Sfmt 6602 E:\HR\OC\HR139.XXX HR139

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lized the process to identify almost 250 coal-related section 404 permits currently pending with the Corps, and numerous permit applications remain indefinitely stalled. 

Further, in an unprecedented move and without alleging any violation of a permit, in September 2010, EPA initiated steps to revoke a section 404 permit issued two years earlier for a surface 

coal mining operation in West Virginia. The permit was for the 

Arch Coal, Mingo Logan, Inc., Spruce No. 1 Surface Mine. Prior to 

the issuance of the permit, Arch Coal had conducted an extensive 

10-year environmental review, including a 1,600 page Environmental Impact Statement (EIS) in which EPA fully participated and 

agreed to all the terms and conditions included in the authorized 

permit. Subsequently, the mine operated pursuant to and in full 

compliance with the Section 404 authorization. Nevertheless, EPA 

issued a determination that EPA withdraw the discharge authorization. 

By second-guessing and inserting itself into the states’ and the 

Corps’ standards and permitting decisions, EPA has upset the longstanding balance between federal and state partners in regulating 

the nation’s waters, and undermined the system of cooperative federalism established under the CWA in which the primary responsibilities for water pollution control are allocated to the states. 

EPA’s actions have created an atmosphere of regulatory uncertainty for the regulated community, and have had a chilling effect 

on the Nation’s economy and job creation. 

The sponsors of H.R. 2018 introduced this legislation to halt 

these sorts of recent actions where EPA has gone beyond its appropriate role as the approver of programs and standards and instead 

has attempted to directly implement water quality programs, including standards and permits, in approved states, and secondguess the judgment of the water quality professionals in those 

states. 

H.R. 2018 aims to provide common sense protections for states’ 

EPA-approved water quality standards and permitting authorities 

under the CWA. Without these protections, state regulation, as approved by EPA, can still be usurped by EPA, creating a climate for 

regulatory uncertainty and delays. 

LEGISLATIVE HISTORY

On May 26, 2011, Committee on Transportation and Infrastructure Chairman John Mica introduced H.R. 2018, the ‘‘Clean Water 

Cooperative Federalism Act of 2011.’’ On June 22, 2011, the Committee on Transportation and Infrastructure met in open session to 

consider H.R. 2018, and ordered the bill reported favorably to the 

House by roll call vote with a quorum present. The vote was 35 

yeas to 19 nays. An amendment was offered in Committee by Mrs. 

Capito, which was adopted by voice vote. The amendment made a 

clarifying change to the bill. The amendment stated that amendments that H.R. 2018 made to the Clean Water Act would apply 

to actions taken on or after the date of enactment of H.R. 2018, including actions that are pending or revised or new standards that 

are being promulgated as of such date of enactment. Mrs. Capito 

also offered and withdrew an amendment that would have required 

EPA to conduct an analysis of the impacts, on employment and economic activity, of any EPA action covered under the bill. Mr. 


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Bishop offered an amendment that would have excluded, from coverage under the bill, any waters that EPA determines are a source 

for a public drinking water supply, provide flood protection for communities, are a valuable fish and wildlife habitat that provide benefits to the economy, or are coastal recreational waters. The 

amendment was defeated in a voice vote. 

HEARINGS

On May 5 and 11, 2011, the Subcommittee on Water Resources 

and Environment held hearings to receive testimony from state 

regulators, the mining industry, impacted businesses, economists, 

and EPA on EPA’s surface mining policies and other related extraregulatory activities. 

COMMITTEE VOTES

Clause 3(b) of rule XIII of the House of Representatives requires 

each committee report to include the total number of votes cast for 

and against on each record vote on a motion to report and on any 

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

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

2018, a total of one roll call vote was taken, which was on a final 

vote ordering the bill reported as amended. The bill, as amended, 

was reported to the House with a favorable recommendation after 

a record vote which was disposed of as follows: 


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COMMITTEE OVERSIGHT FINDINGS

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

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

this report. 

COST OF LEGISLATION

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

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

NEW BUDGET AUTHORITY AND TAX EXPENDITURES

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

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

the Director of the Congressional Budget Office pursuant to section 

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

CONGRESSIONAL BUDGET OFFICE COST ESTIMATE

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

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

Congressional Budget Act of 1974, the Committee has received the 

following cost estimate for H.R. 2018 from the Director of the Congressional Budget Office: 

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, Washington, DC, June 30, 2011. 

Hon. JOHN L. MICA, 

Chairman, Committee on Transportation and Infrastructure, 

House of Representatives, Washington, DC. 

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared the enclosed cost estimate for H.R. 2018, the Clean Water 

Cooperative Federalism Act of 2011. 

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

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

Sincerely, 

ROBERT A. SUNSHINE

(For Douglas W. Elmendorf, Director). 

Enclosure. 

H.R. 2018—Clean Water Cooperative Federalism Act of 2011 

H.R. 2018 would amend the Clean Water Act (CWA) to shift various regulatory powers concerning water treatment and the development of wetlands from the Environmental Protection Agency 

(EPA) to individual states. Major changes to the CWA would: 

• Prohibit EPA from issuing a new water quality standard 

in any case in which a state standard has been approved by 

EPA, unless the state concurs with EPA that the revised or 


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new standard is necessary to meet the requirement of the 

CWA; 

• Prohibit EPA from withdrawing approval of a state program for issuing water quality permits under the CWA, or 

from limiting federal financial assistance for a state permitting 

program on the basis that EPA disagrees with the state regarding a standard that the state has adopted and EPA has 

approved; 

• Prohibit EPA from vetoing a permitting decision by the 

Army Corp of Engineers involving wetlands unless the state 

concurs with the veto; 

• Allow states to assume and administer parts of the CWA 

permitting program rather than all of it or none of it, as is the 

case under current law; and 

• Shorten the deadlines applicable to federal agencies for 

making decisions on some permits to dredge and fill wetlands. 

Many of the restrictions posed by this bill would affect some aspects of EPA’s longstanding oversight and enforcement role related 

to state water quality established under the CWA. Currently, EPA 

usually spends more than $2 billion each year on activities related 

to the CWA (including grants to states). However, many of the activities that would be precluded under H.R. 2018 occur infrequently 

under current law and have not accounted for a significant fraction 

of the annual resources devoted to implementing the CWA. (For example, since the inception of the CWA in 1972, EPA has vetoed 

permitting decisions by the Army Corp of Engineers 13 times, and 

EPA has never withdrawn a state’s delegated program.) Therefore, 

CBO estimates that enacting this legislation would not have a significant impact on EPA’s budget to implement the CWA. 

Pay-as-you-go procedures do not apply to H.R. 2018 because enacting the bill would not affect direct spending or revenues. 

H.R. 2018 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act and would 

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

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

This estimate was approved by Theresa Gullo, Deputy Assistant 

Director for Budget Analysis. 

PERFORMANCE GOALS AND OBJECTIVES

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

the Rules of the House of Representatives, the performance goals 

and objectives of this legislation are to reduce regulatory burdens 

caused by EPA’s second-guessing and inserting itself into the 

states’ standards and permitting decisions, by restoring the longstanding system of cooperative federalism established under the 

CWA in which the primary responsibilities for water pollution control are allocated to the states. 

ADVISORY OF EARMARKS

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

of Representatives, H.R. 2018 does not contain any congressional 

earmarks, limited tax benefits, or limited tariff benefits as defined 

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


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FEDERAL MANDATES STATEMENT

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

pursuant to section 423 of the Unfunded Mandates Reform Act 

(Public Law 104–4). 

PREEMPTION CLARIFICATION

Section 423 of the Congressional Budget Act of 1974 requires the 

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

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

that H.R. 2018 does not preempt any state, local, or tribal law. 

ADVISORY COMMITTEE STATEMENT

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

Federal Advisory Committee Act was created by this legislation. 

APPLICABILITY TO THE LEGISLATIVE BRANCH

The Committee finds that the legislation does not relate to the 

terms and conditions of employment or access to public services or 

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

SECTION-BY-SECTION ANALYSIS OF THE LEGISLATION

Section 1. Short Title 

Section 1 of the bill designates the title of the bill as the ‘‘Clean 

Water Cooperative Federalism Act of 2011.’’ 

Section 2. State Water Quality Standards 

Section 2(a) of the bill (‘‘State Water Quality Standards’’) amends 

section 303(c)(4) of the CWA by restricting EPA’s ability to issue 

a revised or new water quality standard for a pollutant whenever 

a state has adopted and EPA already has approved a water quality 

standard for that pollutant, unless the state concurs with the Administrator’s determination that the revised or new standard is 

necessary to meet the requirements of the CWA. 

Section 303 of the CWA authorizes EPA to approve state standards and to establish federal standards if needed to meet the requirements of the Act. By restricting EPA’s ability to override an 

existing state standard if it already has been approved by EPA, 

EPA as a co-regulator under the CWA would be forced to work together more closely, in a more cooperative fashion, with the state. 

H.R. 2018 would prevent unilateral actions by EPA that secondguess the decisions of the state regulatory agency. 

In opposing this bill, it has been implied by some that the states 

cannot be trusted and that only EPA can protect water quality. The 

Committee has heard from representatives of the water quality 

programs in many states about how they implement their approved 

(by EPA) water quality programs under the CWA, and H.R. 2018 

would not create a ‘‘race to the bottom’’ whereby state regulators 

would abandon their mission to protect water quality. H.R. 2018 


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maintains EPA’s proper and appropriate authority to approve state 

programs and to approve state water quality standards. 

Section 2(b) of the bill (‘‘Federal Licenses and Permits’’) amends 

section 401(a) of the CWA by prohibiting EPA from superseding a 

water quality certification granted by a state under CWA section 

401, that a discharge will comply with the applicable water quality 

requirements of sections 301, 302, 303, 306, and 307 of the CWA. 

Section 401 of the CWA vests in states alone the authority to decide whether or not a proposed Federal project or Federal action 

will adversely affect state water quality standards. Recently, EPA 

has suggested that they can override state determinations. This 

suggestion is unprecedented. H.R. 2018 restricts EPA’s ability to 

carry out its threat to override state water quality certifications. 

Section 2(c) of the bill (‘‘State NPDES Permit Programs’’) amends 

section 402(c) of the CWA by prohibiting EPA from withdrawing 

approval of a state water quality permitting program under CWA 

section 402 (NPDES Permits), or from limiting Federal financial 

assistance for the state water quality permitting program, on the 

basis that EPA disagrees with the state regarding (a) a water quality standard that a state has adopted and EPA has approved under 

section 303(c), or (b) the implementation of any federal guidance 

that directs a re-interpretation of the state’s approved water quality standards. 

Section 2(d) of the bill (‘‘Limitation on Authority of Administrator 

To Object to Individual Permits’’) amends section 402(d) of the 

CWA by prohibiting EPA from objecting to a state’s issuance of an 

NPDES permit on the basis of (a) EPA’s differing interpretation of 

an approved state water quality standard, or (b) the implementation of any federal guidance that directs a re-interpretation of the 

state’s approved water quality standards. 

Under section 402 of the CWA, once EPA approves a state water 

quality program, then that program is the permitting authority 

under the CWA and states have the authority to issue permits that 

they determine will meet state water quality standards that have 

been approved by EPA. In certain cases, EPA has the ability to 

independently enforce a state-issued permit. However, EPA has not 

previously claimed the authority to invent its own interpretation of 

what state water quality standards mean and how they should be 

implemented. EPA is now threatening these actions. 

To prevent this from happening, H.R. 2018 limits EPA’s authority to object to state-issued permits. The bill also limits EPA’s authority to withdraw approval of a state NPDES permitting program, or from limiting federal financial assistance for the state 

water quality permitting program in the specified circumstances. 

These limitations apply only in situations where EPA is attempting 

to contradict a state agency’s interpretation of its own water quality standards. EPA’s recent attempts to rewrite state water quality 

standards are unprecedented. By limiting such over-reaching by 

EPA, H.R. 2018 in no way affects EPA proper role in reviewing 

state permits. 

Section 3. Permits for Dredged or Fill Material 

Section 3(a) of the bill (‘‘Authority of EPA Administrator’’) 

amends section 404(c) of the CWA by restricting EPA’s ability to 

veto a Corps section 404 permitting decision under CWA section 


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404(c) unless the state concurs with EPA’s determination that the 

discharge of dredged or fill material will result in an unacceptable 

adverse effect on a state’s waters, as described in CWA section 

404(c)(1) (as amended). 

Under section 404(c) of the CWA, EPA has the authority to veto 

a Corps permit for the discharge of dredged or fill material to prevent unacceptable adverse effects on state waters. Recently, EPA 

has alleged unacceptable adverse impacts where a state agency (or 

the Corps) believes that none exist. H.R. 2018 would limit EPA’s 

ability to override a state (or Corps) determination regarding 

whether there would be unacceptable adverse impacts on the 

state’s waters. 

Section 3(b) of the bill (‘‘State Permit Programs’’) amends section 

404(g)(1) of the CWA by allowing a state to assume and administer 

only parts of the section 404 permit program. 

CWA section 404(g) authorizes states to assume responsibility for 

implementing the CWA section 404 permit program, but they are 

generally only allowed to assume the entire program. Currently, 

only two states (New Jersey and Michigan) have assumed responsibility for section 404 permitting in their states. Other states support a simplified and more flexible process for state assumption of 

the section 404 permit program, including partial assumption of 

program responsibilities, in order to improve effectiveness and provide more efficient and effective permitting for applicants. H.R. 

2018 would make it easier for states to assume and administer 

only parts of the section 404 permit program. 

Section 4. Deadlines for Agency Comments 

Paragraph (1) of Section 4 of the bill amends section 404(m) of 

the CWA by shortening the deadline for the Fish and Wildlife Service to submit comments to the Corps on a proposed section 404 permit from 90 days to 30 days (or 60 days if additional time is requested). 

Paragraph (2) of Section 4 of the bill amends section 404(q) of the 

CWA by clarifying that the deadline for EPA and other agencies to 

submit comments to the Corps on a proposed section 404 permit is 

30 days (or 60 days if additional time is requested) after the date 

of receipt of the application for the section 404 permit. 

Under section 404(q) of the Clean Water Act, agencies are required to enter into memoranda of understanding (MOUs) to limit 

delays in the issuance of permits by the Corps. In 1992, EPA entered into an MOU with the Corps agreeing to limit its review time 

to 30 days, which could be extended to a maximum of 60 days. H.R. 

2018 holds EPA and other agencies to their obligation to prevent 

permitting delays. 

Section 5. Applicability of Amendments 

Section 5 states that amendments that H.R. 2018 would make to 

the CWA shall apply to actions taken on or after the date of enactment of H.R. 2018, including actions that are pending or revised 

or new standards that are being promulgated as of such date of enactment. Section 5 makes it clear that H.R. 2018 would apply to 

both pending and future permitting and standards actions. 


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CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

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

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

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

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

FEDERAL WATER POLLUTION CONTROL ACT 

* * * * * * * 

TITLE III—STANDARDS AND ENFORCEMENT 

* * * * * * * 

WATER QUALITY STANDARDS AND IMPLEMENTATION PLANS

SEC. 303. (a) * * * 

* * * * * * * 

(c)(1) * * * 

* * * * * * * 

(4)(A) The Administrator shall promptly prepare and publish proposed regulations setting forth a revised or new water quality 

standard for the navigable waters involved— 

ø(A)¿ (i) if a revised or new water quality standard submitted by such State under paragraph (3) of this subsection for 

such waters is determined by the Administrator not to be consistent with the applicable requirements of this Act, or 

ø(B)¿ (ii) in any case where the Administrator determines 

that a revised or new standard is necessary to meet the requirements of this Act. 

øThe Administrator shall promulgate¿ 

(B) The Administrator shall promulgate any revised or new 

standard under this paragraph not later than ninety days after he 

publishes such proposed standards, unless prior to such promulgation, such State has adopted a revised or new water quality standard which the Administrator determines to be in accordance with 

this Act. 

(C) Notwithstanding subparagraph (A)(ii), the Administrator may 

not promulgate a revised or new standard for a pollutant in any 

case in which the State has submitted to the Administrator and the 

Administrator has approved a water quality standard for that pollutant, unless the State concurs with the Administrator’s determination that the revised or new standard is necessary to meet the requirements of this Act. 

* * * * * * * 

TITLE IV—PERMITS AND LICENSES 

CERTIFICATION

SEC. 401. (a)(1) * * * 

* * * * * * * 

(7) With respect to any discharge, if a State or interstate agency 

having jurisdiction over the navigable waters at the point where the 

discharge originates or will originate determines under paragraph 


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(1) that the discharge will comply with the applicable provisions of 

sections 301, 302, 303, 306, and 307, the Administrator may not 

take any action to supersede the determination. 

* * * * * * * 

NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

SEC. 402. (a) * * * 

* * * * * * * 

(c)(1) * * * 

* * * * * * * 

(5) LIMITATION ON AUTHORITY OF ADMINISTRATOR TO WITHDRAW

APPROVAL OF STATE PROGRAMS.—The Administrator may not withdraw approval of a State program under paragraph (3) or (4), or 

limit Federal financial assistance for the State program, on the 

basis that the Administrator disagrees with the State regarding— 

(A) the implementation of any water quality standard that 

has been adopted by the State and approved by the Administrator under section 303(c); or 

(B) the implementation of any Federal guidance that directs 

the interpretation of the State’s water quality standards. 

(d)(1) * * * 

* * * * * * * 

(5) The Administrator may not object under paragraph (2) to the 

issuance f a permit by a State on the basis of— 

(A) the Administrator’s interpretation of a water quality 

standard that has been adopted by the State and approved by 

the Administrator under section 303(c); or 

(B) the implementation of any Federal guidance that directs 

the interpretation of the State’s water quality standards. 

* * * * * * * 

PERMITS FOR DREDGED OR FILL MATERIAL

SEC. 404. (a) * * * 

* * * * * * * 

ø(c)¿ (c)(1) The Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined 

area as a disposal site, and he is authorized to deny or restrict the 

use of any defined area for specification (including the withdrawal 

of specification) as a disposal site, whenever he determines, after 

notice and opportunity for public hearings, that the discharge of 

such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas 

(including spawning and breeding areas), wildlife, or recreational 

areas. Before making such determination, the Administrator shall 

consult with the Secretary. The Administrator shall set forth in 

writing and make public his findings and his reasons for making 

any determination under this subsection. 

(2) Paragraph (1) shall not apply to any permit if the State in 

which the discharge originates or will originate does not concur 


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with the Administrator’s determination that the discharge will result in an unacceptable adverse effect as described in paragraph (1). 

* * * * * * * 

(g)(1) øThe Governor of any State desiring to administer its own 

individual and general permit program for the discharge¿ The Governor of any State desiring to administer its own individual and 

general permit program for some or all of the discharges of dredged 

or fill material into the navigable waters (other than those waters 

which are presently used, or are susceptible to use in their natural 

condition or by reasonable improvement as a means to transport 

interstate or foreign commerce shoreward to their ordinary high 

water mark, including all waters which are subject to the ebb and 

flow of the tide shoreward to their mean high water mark, or mean 

higher high water mark on the west coast, including wetlands adjacent thereto), within its jurisdiction may submit to the Administrator a full and complete description of the program it proposes to 

establish and administer under State law or under an interstate 

compact. In addition, such State shall submit a statement from the 

attorney general (or the attorney for those State agencies which 

have independent legal counsel), or from the chief legal officer in 

the case of an interstate agency, that the laws of such State, or the 

interstate compact, as the case may be, provide adequate authority 

to carry out the described program. 

* * * * * * * 

(m) Not later than the øninetieth day¿ 30th day (or the 60th day 

if additional time is requested) after the date on which the Secretary notifies the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service that (1) an application for a permit under subsection (a) of this section has been 

received by the Secretary, or (2) the Secretary proposes to issue a 

general permit under subsection (e) of this section, the Secretary 

of the Interior, acting through the Director of the United States 

Fish and Wildlife Service, shall submit any comments with respect 

to such application or such proposed general permit in writing to 

the Secretary. 

* * * * * * * 

ø(q)¿ (q)(1) Not later than the one-hundred-eightieth day after 

the date of enactment of this subsection, the Secretary shall enter 

into agreements with the Administrator, the Secretaries of the Departments of Agriculture, Commerce, Interior, and Transportation, 

and the heads of other appropriate Federal agencies to minimize, 

to the maximum extent practicable, duplication, needless paperwork, and delays in the issuance of permits under this section. 

Such agreements shall be developed to assure that, to the maximum extent practicable, a decision with respect to an application 

for a permit under subsection (a) of this section will be made not 

later than the ninetieth day after the date the notice of such application is published under subsection (a) of this section. 

(2) The Administrator and the head of a department or agency referred to in paragraph (1) shall each submit any comments with respect to an application for a permit under subsection (a) or (e) not 

later than the 30th day (or the 60th day if additional time is reVerDate Mar 15 2010 04:39 Jul 09, 2011 Jkt 099006 PO 00000 Frm 00015 Fmt 6659 Sfmt 6603 E:\HR\OC\HR139.XXX HR139

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quested) after the date of receipt of an application for a permit 

under that subsection. 

* * * * * * * 


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DISSENTING VIEWS 

In my opinion, consideration of H.R. 2018, the Clean Water Cooperative Federalism Act of 2011, is ill-timed given the legislation’s 

far-reaching implications for water quality and public health. Members of this committee have not had an opportunity to investigate 

many of the facts and circumstances related to the underlying 

issues this bill purports to address, including its potential consequences. 

While the Subcommittee on Water Resources and Environment 

has held three hearings on issues related to surface coal mining 

and nutrient water pollution, none of these hearings specifically examined the substantive changes to the Federal Water Pollution 

Control Act, more commonly known as the Clean Water Act, that 

are included in this legislation. In fact, the final of these three 

hearings, related to nutrient water pollution, was held two days 

after the Full Committee markup of H.R. 2018. 

This lack of careful consideration on the implications of this legislation is readily apparent. For example, while proponents argue 

that portions of this bill were drafted to address recent EPA actions on nutrient water quality criteria, the implications of this legislation extend beyond these issues and impact both Federal and 

State abilities to reduce the discharge of any pollutants under the 

Act. 

In my view, it is unfortunate that the Members of the Transportation and Infrastructure Committee were asked to vote on this 

legislation before the implications of H.R. 2018 had been thoroughly discussed and debated. 

In addition, according to a technical review of this legislation by 

the U.S. Environmental Protection Agency (EPA), which I am including as part of my dissenting views, the potential adverse effect 

of this legislation would be to ‘‘overturn almost 40 years of Federal 

legislation by preventing EPA from protecting public health and 

water quality.’’ 

According to EPA, H.R. 2018 fundamentally alters the current 

Federal/State relationship out med in the Clean Water Act and 

would hinder the federal government’s ability to ensure there is an 

equitable level of protection provided to our nation’s waters. The 

bill also prevents EPA, without State concurrence, from taking action to revise outdated State water quality standards. 

I am also concerned that any action to allow for less protective 

water quality standards will have an equivalent negative impact on 

the quality and protectiveness of pollution discharge permits, assessing whether waterbodies are impaired, establishing and implementing of Total Maximum Daily Load (TMDL) allocations; and 

certifying whether other federal permits or licenses comply with 

state water quality standards. 


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This legislation makes a State the final arbiter of whether a permit, license, or standard is protective of water quality even if the 

resulting decision adversely impacts the water quality of neighboring states. Furthermore, EPA would be prohibited from resolving conflicting State decisions on protecting water quality, and 

States may be left with no recourse but to litigate conflicting standards in court. 

H.R. 2018 also inhibits Federal and State efforts to incorporate 

greater scientific information on the impacts of pollution to human 

health and the environment into pollution discharge limits, and 

prohibits Federal efforts to incorporate more stringent discharge 

limits into permit programs to address emerging contaminants and 

pollutants. 

My district in New York is separated from Connecticut by the 

Long Island Sound. Over time, the number of polluters in the area 

increased exponentially, killing fish, lobsters and imperiling the $5 

billion of economic output that the region depends upon. Fortunately, the States decided that the Sound was impaired and proposed a revised, more restrictive water quality standard for nitrogen—a $5 billion bullet dodged. 

Had Connecticut, for example, decided against the revised standard despite all the scientific evidence for doing so, under current 

law EPA could step in and require the stricter standard. Under 

H.R. 2018, EPA would be stripped of that leverage, and polluters 

in Connecticut could continue to discharge excessive amounts of nitrogen into the Sound, leaving my constituents and the State of 

New York without any recourse under the Clean Water Act to stop 

them. 

I recently learned that Chicago, Illinois, is the only major metropolitan area that does not disinfect its treated sewage before dumping it into the Chicago River. Under this bill, EPA would have no 

authority to require the State to adopt a new standard for disinfection—as they did last month to protect the public from dangerous 

pathogens and bacteria. 

If this bill were to pass, individual States could decide that collective efforts to address the water quality impairments in the 

Chesapeake Bay, Puget Sound, or the Gulf of Mexico are unnecessarily restrictive or burdensome, and refuse to participate in a 

meaningful way towards restoration of these regional waterbodies. 

This go-it-alone approach flies in the face of science, common sense, 

and decades of experience implementing of the Clean Water Act. 

In my view, the far-reaching implications of this bill will have a 

significant adverse impact on our nation’s clean water. 

I oppose this bill. 

TIMOTHY H. BISHOP. 


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SUMMARY: EPA ANALYSIS OF H.R. 2018 

The bill would overturn almost 40 years of Federal legislation by 

preventing EPA from protecting public health and water quality. 

• This bill would significantly undermine EPA’s longstanding 

role under the Clean Water Act (CWA) to assure that state 

water quality standards protect clean water and public health 

and comply with the law. It would fundamentally disrupt the 

Federal-State relationship carefully crafted by the 1972 CWA 

and would hinder the federal government’s ability to ensure 

that states provide an equitable level of protection to their 

waters. 

• This bill would prevent EPA from taking action without state 

concurrence to update outdated State standards even in the 

face of significant scientific information demonstrating threats 

to human health or aquatic life from emerging contaminants or 

other pollutants. 

• This bill would unnecessarily delay EPA approval of new or revised State water quality standards, even where there are no 

concerns, and could lead to a higher rate of EPA disapprovals. 

The bill would prevent EPA from providing its views on whether 

a proposed project that pollutes or even destroys lakes, streams, or 

wetlands would violate CWA standards. 

• H.R. 2018 would prevent EPA from providing its views on 

whether a proposed project that pollutes or even destroys 

lakes, streams, or wetlands would violate CWA standards. It 

would also prevent EPA from taking necessary action under 

existing law to protect public health and water quality. 

• Any action by individual States to allow for less protective 

water quality standards could affect the quality and protectiveness of state permits, Total Maximum Daily Loads, or the assessment of impaired waters. This would limit EPA’s ability to 

ensure that the State’s overall program complies with the 

CWA. 

• This bill would limit EPA from meeting its current CWA responsibility to facilitate disputes between States as to whether 

permit conditions protect water quality in all affected States, 

which may leave states with no legal recourse but to litigate 

conflicting standards in court. 

The bill would remove EPA’s existing state coordination role and 

eliminate the careful Federal/State balance established in the current CWA. 

• Removing EPA’s program oversight role is likely to reduce the 

quality of state-issued permits and may likely increase the 

number of lawsuits by citizens and environmental groups. This 

would shift the dispute resolution process from a productive 

state-EPA dialogue toward adversarial litigation. 

• Restricting EPA’s authority to ensure that states implement 

their programs as approved may lead states to reduce the protection they provide to their waters, thereby leading to a ‘‘race 

to the bottom’’ that jeopardizes water quality and human 

health. 


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• H.R. 2018 would allow individual States to decide that collective efforts to address the water quality impairments in the 

Chesapeake Bay, Puget Sound, or the Gulf of Mexico are unnecessarily restrictive or burdensome, and refuse to participate 

in a meaningful way towards restoration of these regional 

waterbodies, potentially reversing decades of progress under 

the CWA. 

The bill would prevent EPA from protecting communities from unacceptable adverse impacts to their water supplies and the environment caused by Federal permits. 

• This legislation would remove EPA’s ability to take action to 

protect communities from projects that would have unacceptable adverse effects to our nation’s waters and public health. 

This would fundamentally disrupt the balance established by 

the original CWA in 1972—a law that carefully constructed 

complementary roles for EPA, the Corps, and states. 

• EPA has only used its CWA Section 404(c) authority 13 times 

in the nearly 40-year history of the CWA. 

This bill would substantively eliminate the opportunity for EPA, 

the federal government’s expert on water quality, to comment on 

Federal permits impacting water quality and public health. 

• This bill would greatly limit EPA’s ability to provide constructive and expert comments to the Corps on Section 404 permit 

applications. The bill would reduce the quality of information 

available to EPA and the time available to review it, resulting 

in more frequent EPA objections based on lack of information 

and unnecessary delays in the permitting process. 

• This provision would require the Corps to adopt, through regulation, a more complex permitting process, which would add 

work for the Corps and uncertainty for applicants. 

Æ 


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