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[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[S. 861 Introduced in Senate (IS)]

113th CONGRESS
  1st Session
                                 S. 861

 To amend the Federal Water Pollution Control Act to provide guidance 
 and clarification regarding issuing new and renewal permits, and for 
                            other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                              May 6, 2013

Mr. McConnell (for himself and Mr. Paul) introduced the following bill; 
 which was read twice and referred to the Committee on Environment and 
                              Public Works

_______________________________________________________________________

                                 A BILL

 
 To amend the Federal Water Pollution Control Act to provide guidance 
 and clarification regarding issuing new and renewal permits, and for 
                            other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM.

    (a) Applicability of Guidance.--Section 402 of the Federal Water 
Pollution Control Act (33 U.S.C. 1342) is amended by adding at the end 
the following:
    ``(s) Applicability of Guidance.--
            ``(1) Definitions.--In this subsection:
                    ``(A) Guidance.--
                            ``(i) In general.--The term `guidance' 
                        means draft, interim, or final guidance issued 
                        by the Administrator.
                            ``(ii) Inclusions.--The term `guidance' 
                        includes--
                                    ``(I) the comprehensive guidance 
                                issued by the Administrator and dated 
                                April 1, 2010;
                                    ``(II) the proposed guidance 
                                entitled `Draft Guidance on Identifying 
                                Waters Protected by the Clean Water 
                                Act' and dated April 28, 2011;
                                    ``(III) the final guidance proposed 
                                by the Administrator and dated July 21, 
                                2011; and
                                    ``(IV) any other document or paper 
                                issued by the Administrator through any 
                                process other than the notice and 
                                comment rulemaking process.
                    ``(B) New permit.--The term `new permit' means a 
                permit covering discharges from a structure--
                            ``(i) that is issued under this section by 
                        a permitting authority; and
                            ``(ii) for which an application is--
                                    ``(I) pending as of the date of 
                                enactment of this subsection; or
                                    ``(II) filed on or after the date 
                                of enactment of this subsection.
                    ``(C) Permitting authority.--The term `permitting 
                authority' means--
                            ``(i) the Administrator; or
                            ``(ii) a State, acting pursuant to a State 
                        program that is equivalent to the program under 
                        this section and approved by the Administrator.
            ``(2) Permits.--
                    ``(A) In general.--Notwithstanding any other 
                provision of law, in making a determination whether to 
                approve a new permit or a renewed permit, the 
                permitting authority--
                            ``(i) shall base the determination only on 
                        compliance with regulations issued by the 
                        Administrator or the permitting authority; and
                            ``(ii) shall not base the determination on 
                        the extent of adherence of the applicant for 
                        the new permit or renewed permit to guidance.
                    ``(B) New permits.--If the permitting authority 
                does not approve or deny an application for a new 
                permit by the date that is 270 days after the date of 
                receipt of the application for the new permit, the 
                applicant may operate as if the application were 
                approved in accordance with Federal law for the period 
                of time for which a permit from the same industry would 
                be approved.
                    ``(C) Substantial completeness.--In determining 
                whether an application for a new permit or a renewed 
                permit received under this paragraph is substantially 
                complete, the permitting authority shall use standards 
                for determining substantial completeness of similar 
                permits for similar facilities submitted in fiscal year 
                2007.''.
    (b) State Permit Programs.--
            (1) In general.--Section 402 of the Federal Water Pollution 
        Control Act (33 U.S.C. 1342) is amended by striking subsection 
        (b) and inserting the following:
    ``(b) State Permit Programs.--
            ``(1) In general.--At any time after the promulgation of 
        the guidelines required by section 304(I)(2), the Governor of 
        each State desiring to administer a permit program for 
        discharges into navigable waters within the jurisdiction of the 
        State may submit to the Administrator--
                    ``(A) a full and complete description of the 
                program the State proposes to establish and administer 
                under State law or under an interstate compact; and
                    ``(B) a statement from the attorney general (or the 
                attorney for those State water pollution control 
                agencies that have independent legal counsel), or from 
                the chief legal officer in the case of an interstate 
                agency, that the laws of the State, or the interstate 
                compact, as applicable, provide adequate authority to 
                carry out the described program.
            ``(2) Approval.--The Administrator shall approve each 
        program for which a description is submitted under paragraph 
        (1) unless the Administrator determines that adequate authority 
        does not exist--
                    ``(A) to issue permits that--
                            ``(i) apply, and ensure compliance with, 
                        any applicable requirements of sections 301, 
                        302, 306, 307, and 403;
                            ``(ii) are for fixed terms not exceeding 5 
                        years;
                            ``(iii) can be terminated or modified for 
                        cause including--
                                    ``(I) a violation of any condition 
                                of the permit;
                                    ``(II) obtaining a permit by 
                                misrepresentation or failure to 
                                disclose fully all relevant facts; and
                                    ``(III) a change in any condition 
                                that requires either a temporary or 
                                permanent reduction or elimination of 
                                the permitted discharge; and
                            ``(iv) control the disposal of pollutants 
                        into wells;
                    ``(B)(i) to issue permits that apply, and ensure 
                compliance with, all applicable requirements of section 
                308; or
                    ``(ii) to inspect, monitor, enter, and require 
                reports to at least the same extent as required in 
                section 308;
                    ``(C) to ensure that the public, and any other 
                State the waters of which may be affected, receives 
                notice of each application for a permit and an 
                opportunity for a public hearing before a ruling on 
                each application;
                    ``(D) to ensure that the Administrator receives 
                notice and a copy of each application for a permit;
                    ``(E) to ensure that any State (other than the 
                permitting State), whose waters may be affected by the 
                issuance of a permit may submit written recommendations 
                to the permitting State and the Administrator with 
                respect to any permit application and, if any part of 
                the written recommendations are not accepted by the 
                permitting State, that the permitting State will notify 
                the affected State and the Administrator in writing of 
                the failure of the State to accept the recommendations, 
                including the reasons for not accepting the 
                recommendations;
                    ``(F) to ensure that no permit will be issued if, 
                in the judgment of the Secretary of the Army acting 
                through the Chief of Engineers, after consultation with 
                the Secretary of the department in which the Coast 
                Guard is operating, anchorage and navigation of any of 
                the navigable waters would be substantially impaired by 
                the issuance of the permit;
                    ``(G) to abate violations of the permit or the 
                permit program, including civil and criminal penalties 
                and other means of enforcement;
                    ``(H) to ensure that any permit for a discharge 
                from a publicly owned treatment works includes 
                conditions to require the identification in terms of 
                character and volume of pollutants of any significant 
                source introducing pollutants subject to pretreatment 
                standards under section 307(b) into the treatment works 
                and a program to ensure compliance with those 
                pretreatment standards by each source, in addition to 
                adequate notice, which shall include information on the 
                quality and quantity of effluent to be introduced into 
                the treatment works and any anticipated impact of the 
                change in the quantity or quality of effluent to be 
                discharged from the publicly owned treatment works, to 
                the permitting agency of--
                            ``(i) new introductions into the treatment 
                        works of pollutants from any source that would 
                        be a new source as defined in section 306 if 
                        the source were discharging pollutants;
                            ``(ii) new introductions of pollutants into 
                        the treatment works from a source that would be 
                        subject to section 301 if the source were 
                        discharging those pollutants; or
                            ``(iii) a substantial change in volume or 
                        character of pollutants being introduced into 
                        the treatment works by a source introducing 
                        pollutants into the treatment works at the time 
                        of issuance of the permit; and
                    ``(I) to ensure that any industrial user of any 
                publicly owned treatment works will comply with 
                sections 204(b), 307, and 308.
            ``(3) Administration.--Notwithstanding paragraph (2), the 
        Administrator may not disapprove or withdraw approval of a 
        program under this subsection on the basis of the following:
                    ``(A) The failure of the program to incorporate or 
                comply with guidance (as defined in subsection (s)(1)).
                    ``(B) The implementation of a water quality 
                standard that has been adopted by the State and 
                approved by the Administrator under section 303(c).''.
            (2) Conforming amendments.--
                    (A) Section 309 of the Federal Water Pollution 
                Control Act (33 U.S.C. 1319) is amended--
                            (i) in subsection (c)--
                                    (I) in paragraph (1)(A), by 
                                striking ``402(b)(8)'' and inserting 
                                ``402(b)(2)(H)''; and
                                    (II) in paragraph (2)(A), by 
                                striking ``402(b)(8)'' and inserting 
                                ``402(b)(2)(H)''; and
                            (ii) in subsection (d), in the first 
                        sentence, by striking ``402(b)(8)'' and 
                        inserting ``402(b)(2)(H)''.
                    (B) Section 402(m) of the Federal Water Pollution 
                Control Act (33 U.S.C. 1342(m)) is amended in the first 
                sentence by striking ``subsection (b)(8) of this 
                section'' and inserting ``subsection (b)(2)(H)''.
    (c) Suspension of Federal Program.--Section 402(c) of the Federal 
Water Pollution Control Act (33 U.S.C. 1342(c)) is amended--
            (1) by redesignating paragraph (4) as paragraph (5); and
            (2) by inserting after paragraph (3) the following:
            ``(4) Limitation on disapproval.--Notwithstanding 
        paragraphs (1) through (3), the Administrator may not 
        disapprove or withdraw approval of a State program under 
        subsection (b) on the basis of the failure of the following:
                    ``(A) The failure of the program to incorporate or 
                comply with guidance (as defined in subsection (s)(1)).
                    ``(B) The implementation of a water quality 
                standard that has been adopted by the State and 
                approved by the Administrator under section 303(c).''.
    (d) Notification of Administrator.--Section 402(d)(2) of the 
Federal Water Pollution Control Act (33 U.S.C. 1342(d)(2)) is amended--
            (1) by striking ``(2) No'' and inserting the following:
            ``(2) Objection by administrator.--
                    ``(A) In general.--Subject to subparagraph (C), no 
                permit shall issue if--
                            ``(i) not later than 90 days after the date 
                        on which the Administrator receives 
                        notification under subsection (b)(2)(E), the 
                        Administrator objects in writing to the 
                        issuance of the permit; or
                            ``(ii) not later than 90 days after the 
                        date on which the proposed permit of the State 
                        is transmitted to the Administrator, the 
                        Administrator objects in writing to the 
                        issuance of the permit as being outside the 
                        guidelines and requirements of this Act.'';
            (2) in the second sentence, by striking ``Whenever the 
        Administrator'' and inserting the following:
                    ``(B) Requirements.--If the Administrator''; and
            (3) by adding at the end the following:
                    ``(C) Exception.--The Administrator shall not 
                object to or deny the issuance of a permit by a State 
                under subsection (b) or (s) based on the following:
                            ``(i) Guidance, as that term is defined in 
                        subsection (s)(1).
                            ``(ii) 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).''.

SEC. 2. PERMITS FOR DREDGED OR FILL MATERIAL.

    (a) In General.--Section 404(a) of the Federal Water Pollution 
Control Act (33 U.S.C. 1344(a)) is amended--
            (1) by striking the section heading and all that follows 
        through ``Sec. 404. (a) The Secretary may issue'' and inserting 
        the following:

``SEC. 404. PERMITS FOR DREDGED OR FILL MATERIAL.

    ``(a) Permits.--
            ``(1) In general.--The Secretary may issue''; and
            (2) by adding at the end the following:
            ``(2) Deadline for approval.--
                    ``(A) Permit applications.--
                            ``(i) In general.--Except as provided in 
                        clause (ii), if an environmental assessment or 
                        environmental impact statement, as appropriate, 
                        is required under the National Environmental 
                        Policy Act of 1969 (42 U.S.C. 4321 et seq.), 
                        the Secretary shall--
                                    ``(I) begin the process not later 
                                than 90 days after the date on which 
                                the Secretary receives a permit 
                                application; and
                                    ``(II) approve or deny an 
                                application for a permit under this 
                                subsection not later than the latter 
                                of--
                                            ``(aa) if an agency carries 
                                        out an environmental assessment 
                                        that leads to a finding of no 
                                        significant impact, the date on 
                                        which the finding of no 
                                        significant impact is issued; 
                                        or
                                            ``(bb) if an agency carries 
                                        out an environmental assessment 
                                        that leads to a record of 
                                        decision, 15 days after the 
                                        date on which the record of 
                                        decision on an environmental 
                                        impact statement is issued.
                            ``(ii) Processes.--Notwithstanding clause 
                        (i), regardless of whether the Secretary has 
                        commenced an environmental assessment or 
                        environmental impact statement by the date 
                        described in clause (i)(I), the following 
                        deadlines shall apply:
                                    ``(I) An environmental assessment 
                                carried out under the National 
                                Environmental Policy Act of 1969 (42 
                                U.S.C. 4321 et seq.) shall be completed 
                                not later than 1 year after the 
                                deadline for commencing the permit 
                                process under clause (i)(I).
                                    ``(II) An environmental impact 
                                statement carried out under the 
                                National Environmental Policy Act of 
                                1969 (42 U.S.C. 4321 et seq.) shall be 
                                completed not later than 2 years after 
                                the deadline for commencing the permit 
                                process under clause (i)(I).
                    ``(B) Failure to act.--If the Secretary fails to 
                act by the deadline specified in clause (i) or (ii) of 
                subparagraph (A)--
                            ``(i) the application, and the permit 
                        requested in the application, shall be 
                        considered to be approved;
                            ``(ii) the Secretary shall issue a permit 
                        to the applicant; and
                            ``(iii) the permit shall not be subject to 
                        judicial review.''.
    (b) State Permitting Programs.--
            (1) Authority of epa administrator.--Section 404(c) of the 
        Federal Water Pollution Control Act (33 U.S.C. 1344(c)) is 
        amended by striking ``(c)'' and inserting the following:
    ``(c) Authority of EPA Administrator.--
            ``(1) Possible prohibition of specification.--Until such 
        time as the Secretary has issued a permit under this section, 
        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) Authority of state permitting programs.--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).''.
    (c) State Programs.--The first sentence of section 404(g)(1) of 
such Act (33 U.S.C. 1344(g)(1)) is amended by striking ``for the 
discharge'' and inserting ``for some or all of the discharges''.

SEC. 3. IMPACTS OF EPA REGULATORY ACTIVITY ON EMPLOYMENT AND ECONOMIC 
              ACTIVITY.

    (a) Analysis of Impacts of Actions on Employment and Economic 
Activity.--
            (1) Analysis.--Before taking a covered action, the 
        Administrator shall analyze the impact, disaggregated by State, 
        of the covered action on employment levels and economic 
        activity, including estimated job losses and decreased economic 
        activity.
            (2) Economic models.--
                    (A) In general.--In carrying out paragraph (1), the 
                Administrator shall utilize the best available economic 
                models.
                    (B) Annual gao report.--Not later than December 
                31st of each year, the Comptroller General of the 
                United States shall submit to Congress a report on the 
                economic models used by the Administrator to carry out 
                this subsection.
            (3) Availability of information.--With respect to any 
        covered action, the Administrator shall--
                    (A) post the analysis under paragraph (1) as a link 
                on the main page of the public Internet Web site of the 
                Environmental Protection Agency; and
                    (B) request that the Governor of any State 
                experiencing more than a de minimis negative impact 
                post such analysis in the Capitol of such State.
    (b) Public Hearings.--
            (1) In general.--If the Administrator concludes under 
        subsection (a)(1) that a covered action will have more than a 
        de minimis negative impact on employment levels or economic 
        activity in a State, the Administrator shall hold a public 
        hearing in each such State at least 30 days prior to the 
        effective date of the covered action.
            (2) Time, location, and selection.--A public hearing 
        required under paragraph (1) shall be held at a convenient time 
        and location for impacted residents. In selecting a location 
        for such a public hearing, the Administrator shall give 
        priority to locations in the State that will experience the 
        greatest number of job losses.
    (c) Notification.--If the Administrator concludes under subsection 
(a)(1) that a covered action will have more than a de minimis negative 
impact on employment levels or economic activity in any State, the 
Administrator shall give notice of such impact to the State's 
Congressional delegation, Governor, and Legislature at least 45 days 
before the effective date of the covered action.
    (d) Definitions.--In this section, the following definitions apply:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Covered action.--The term ``covered action'' means any 
        of the following actions taken by the Administrator under the 
        Federal Water Pollution Control Act (33 U.S.C. 1201 et seq.):
                    (A) Issuing a regulation, policy statement, 
                guidance, response to a petition, or other requirement.
                    (B) Implementing a new or substantially altered 
                program.
            (3) More than a de minimis negative impact.--The term 
        ``more than a de minimis negative impact'' means the following:
                    (A) With respect to employment levels, a loss of 
                more than 100 jobs. Any offsetting job gains that 
                result from the hypothetical creation of new jobs 
                through new technologies or government employment may 
                not be used in the job loss calculation.
                    (B) With respect to economic activity, a decrease 
                in economic activity of more than $1,000,000 over any 
                calendar year. Any offsetting economic activity that 
                results from the hypothetical creation of new economic 
                activity through new technologies or government 
                employment may not be used in the economic activity 
                calculation.

SEC. 4. IDENTIFICATION OF WATERS PROTECTED BY THE CLEAN WATER ACT.

    (a) In General.--The Secretary of the Army and the Administrator of 
the Environmental Protection Agency may not--
            (1) finalize, adopt, implement, administer, or enforce the 
        proposed guidance described in the notice of availability and 
        request for comments entitled ``EPA and Army Corps of Engineers 
        Guidance Regarding Identification of Waters Protected by the 
        Clean Water Act'' (EPA-HQ-OW-2011-0409) (76 Fed. Reg. 24479 
        (May 2, 2011)); and
            (2) use the guidance described in paragraph (1), any 
        successor document, or any substantially similar guidance made 
        publicly available on or after December 3, 2008, as the basis 
        for any decision regarding the scope of the Federal Water 
        Pollution Control Act (33 U.S.C. 1251 et seq.) or any 
        rulemaking.
    (b) Rules.--The use of the guidance described in subsection (a)(1), 
or any successor document or substantially similar guidance made 
publicly available on or after December 3, 2008, as the basis for any 
rule shall be grounds for vacating the rule.

SEC. 5. LIMITATIONS ON AUTHORITY TO MODIFY 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.''.

SEC. 6. STATE AUTHORITY TO IDENTIFY WATERS WITHIN ITS BOUNDARIES.

    Section 303 of the Federal Water Pollution Control Act (33 U.S.C. 
1313) is amended by striking subsection (d)(2) and inserting the 
following:
            ``(2)(A) Each State shall submit to the Administrator from 
        time to time, with the first such submission not later than 180 
        days after the date of publication of the first identification 
        of pollutants under section 304(a)(2)(D), the waters identified 
        and the loads established under paragraphs (1)(A), (1)(B), 
        (1)(C), and (1)(D) of this subsection. The Administrator shall 
        approve the State identification and load or announce his 
        disagreement with the State identification and load not later 
        than 30 days after the date of submission and if--
                    ``(i) the Administrator approves the identification 
                and load submitted by the State in accordance with this 
                subsection, such State shall incorporate them into its 
                current plan under subsection (e); and
                    ``(ii) the Administrator announces his disagreement 
                with the identification and load submitted by the State 
                in accordance with this subsection he shall submit, not 
                later than 30 days after the date that the 
                Administrator announces his disagreement with the 
                State's submission, to such State his written 
                recommendation of those additional waters that he 
                identifies and such loads for such waters as he 
                believes are necessary to implement the water quality 
                standards applicable to such waters.
            ``(B) Upon receipt of the Administrator's recommendation 
        the State shall within 30 days either--
                    ``(i) disregard the Administrator's recommendation 
                in full and incorporate its own identification and load 
                into its current plan under subsection (e);
                    ``(ii) accept the Administrator's recommendation in 
                full and incorporate its identification and load as 
                amended by the Administrator's recommendation into its 
                current plan under subsection (e); or
                    ``(iii) accept the Administrator's recommendation 
                in part, identifying certain additional waters and 
                certain additional loads proposed by the Administrator 
                to be added to such State's identification and load and 
                incorporate the such State's identification and load as 
                amended into its current plan under subsection (e).
            ``(C)(i) If the Administrator fails to either approve the 
        State identification and load or announce his disagreement with 
        the State identification and load within the time specified in 
        this subsection then such State's identification and load is 
        deemed approved and such State shall incorporate the 
        identification and load that it submitted into its current plan 
        under subsection (e).
            ``(ii) If the Administrator announces his disagreement with 
        the State identification and load but fails to submit his 
        written recommendation to the State within 30 days as required 
        by subparagraph (A)(ii) then such State's identification and 
        load is deemed approved and such State shall incorporate the 
        identification and load that it submitted into its current plan 
        under subsection (e).
            ``(D) This section shall apply to any decision made by the 
        Administrator under this subsection issued on or after March 1, 
        2013.''.
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