II 

114TH CONGRESS 

1ST SESSION 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. 

IN THE SENATE OF THE UNITED STATES 

APRIL 30, 2015 

Mr. BARRASSO (for himself, Mr. DONNELLY, Mr. INHOFE, Ms. HEITKAMP, 

Mr. ROBERTS, Mr. MANCHIN, Mr. SULLIVAN, Mr. ROUNDS, Mr. BLUNT, 

Mr. MCCONNELL, Mrs. CAPITO, Mrs. FISCHER, and Mr. HOEVEN) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works 

A BILL 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Federal Water Quality 

5 Protection Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that— 


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1 (1) in section 101(b) of the Federal Water Pol2 lution Control Act (33 U.S.C. 1251(b)), Congress 

3 adopted the principle of cooperative federalism, rec4 ognizing that ‘‘[i]t is the policy of the Congress to 

5 recognize, preserve, and protect the primary respon6 sibilities and rights of States to prevent, reduce, and 

7 eliminate pollution, to plan the development and use 

8 (including restoration, preservation, and enhance9 ment) of land and water resources, and to consult 

10 with the Administrator in the exercise of his author11 ity under this Act’’; 

12 (2) adequate consultation with States and local 

13 governments and affected entities is necessary— 

14 (A) to ensure that Federal departments 

15 and agencies understand the scope and impacts 

16 of regulatory proposals; 

17 (B) to maintain the cooperative federalism 

18 foundation of the Federal Water Pollution Con19 trol Act (33 U.S.C. 1251 et seq.); and 

20 (C) to respect the limits on Federal au21 thority; 

22 (3)(A) States have robust water quality protec23 tion programs capable of greater regulatory controls 

24 on waters not covered by Federal jurisdiction; and 


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1 (B) an exclusion of waters from Federal juris2 diction does not mean that excluded waters will be 

3 exempt from regulation and protection, but rather, 

4 it recognizes the limits of Federal jurisdiction under 

5 the Federal Water Pollution Control Act (33 U.S.C. 

6 1251 et seq.) and the primary role of States in pro7 tecting State waters; and 

8 (4) subchapter II of chapter 5, and chapter 7, 

9 of title 5, United States Code (commonly known as 

10 the ‘‘Administrative Procedure Act’’), requires each 

11 agency to provide notice and an opportunity to com12 ment regarding— 

13 (A) information, including scientific and 

14 technical findings, on which the agency relies in 

15 taking a regulatory action; and 

16 (B) definitions, exclusions, and standards 

17 that determine the limits of Federal regulation. 

18 SEC. 3. DEFINITIONS. 

19 In this Act: 

20 (1) ADMINISTRATOR.—The term ‘‘Adminis21 trator’’ means the Administrator of the Environ22 mental Protection Agency. 

23 (2) BODY OF WATER.—The term ‘‘body of 

24 water’’ means a traditional navigable water, terri25 torial sea, river, stream, lake, pond, or wetlands. 


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1 (3) INTERSTATE WATERS.—The term ‘‘inter2 state waters’’ means the water described in section 

3 328.3(a)(2) of title 33, Code of Federal Regulations 

4 (as in effect on the day before the date of enactment 

5 of this Act). 

6 (4) ISOLATED.—The term ‘‘isolated’’, with re7 spect to a body of water, means the absence of a 

8 surface hydrologic connection to a traditional navi9 gable water. 

10 (5) MUNICIPALITY.—The term ‘‘municipality’’ 

11 means a city, town, borough, county, parish, district, 

12 association, or other public entity that— 

13 (A) was established by, or pursuant to, 

14 State law; and 

15 (B) has authority over the distribution of 

16 water or the disposal of sewage, industrial 

17 waste, or any other waste. 

18 (6) NORMAL YEAR.—The term ‘‘normal year’’ 

19 means— 

20 (A) the 30-year hydrologic normal, as that 

21 term is used by the Natural Resources Con22 servation Service of the Department of Agri23 culture, based on data from a specific geo24 graphic area; or 


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1 (B) if less than 30 years of data described 

2 in subparagraph (A) are available, the average 

3 of the observed monthly data from a specific ge4 ographic area over the period of record. 

5 (7) POINT SOURCE.—The term ‘‘point source’’ 

6 has the meaning given the term in section 502 of the 

7 Federal Water Pollution Control Act (33 U.S.C. 

8 1362). 

9 (8) PUBLIC NOTICE AND AN OPPORTUNITY FOR

10 COMMENT.— 

11 (A) IN GENERAL.—The term ‘‘public no12 tice and an opportunity for comment’’ means 

13 notice and opportunity for comment that meets 

14 the requirements of subchapter II of chapter 5, 

15 and chapter 7, of title 5, United States Code 

16 (commonly known as the ‘‘Administrative Pro17 cedure Act’’). 

18 (B) INCLUSION.—The term ‘‘public notice 

19 and an opportunity for comment’’ includes the 

20 opportunity for public hearings in different geo21 graphic regions with different hydrology, includ22 ing separate meetings in the arid West. 

23 (9) SECRETARY.—The term ‘‘Secretary’’ means 

24 the Secretary of the Army. 


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1 (10) STREAM.—The term ‘‘stream’’ means a 

2 natural channel formed by the flow of water that has 

3 a bed, bank, and ordinary high water mark (as de4 fined in section 328.3(e) of title 33, Code of Federal 

5 Regulations (as in effect on the date of enactment 

6 of this Act)). 

7 (11) SURFACE HYDROLOGIC CONNECTION.— 

8 (A) IN GENERAL.—The term ‘‘surface hy9 drologic connection’’ means a continuous sur10 face connection through which water moves 

11 within a body of water or from 1 body of water 

12 to another. 

13 (B) EXCLUSION.—The term ‘‘surface hy14 drologic connection’’ does not include— 

15 (i) overland flow of water outside a 

16 body of water (including sheetflow); or 

17 (ii) the movement of water through 

18 soil, subsurface tiles, or a groundwater aq19 uifer. 

20 (C) DETERMINATION OF CONTINUOUS21 NESS.—For purposes of this paragraph, a sur22 face hydrologic connection shall be considered 

23 to be continuous if the connection is continuous, 

24 regardless of whether— 

25 (i) water is not always present; and 


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1 (ii) there is a break in the ordinary 

2 high water mark of a stream that is unre3 lated to the flow regime of the stream, in4 cluding a break caused by a culvert, pipe, 

5 dam, or by the flow of the stream under6 ground for a short distance, such as 

7 through a cave. 

8 (12) TRADITIONAL NAVIGABLE WATER.—The 

9 term ‘‘traditional navigable water’’ means the water 

10 described in section 328.3(a)(1) of title 33, Code of 

11 Federal Regulations (as in effect on the date of en12 actment of this Act). 

13 (13) WETLANDS.—The term ‘‘wetlands’’ has 

14 the meaning given the term in section 328.3(b) of 

15 title 33, Code of Federal Regulations (as in effect on 

16 the date of enactment of this Act). 

17 SEC. 4. REVISED DEFINITION; PRINCIPLES AND PROCESS. 

18 (a) REVISED DEFINITION.—A revision to or guidance 

19 on a regulatory definition of the term ‘‘navigable waters’’ 

20 or ‘‘waters of the United States’’ promulgated or issued 

21 pursuant to the Federal Water Pollution Control Act (33 

22 U.S.C. 1251 et seq.) after February 4, 2015, shall have 

23 no force or effect— 

24 (1) unless the revision adheres to the principles 

25 under subsection (b); and 


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1 (2) until after the Secretary and the Adminis2 trator carry out each action described in subsection 

3 (c). 

4 (b) PRINCIPLES.—In promulgating a revised regu5 latory definition pursuant to this subsection, the Secretary 

6 and the Administrator shall adhere to the following prin7 ciples: 

8 (1) The Federal Water Pollution Control Act 

9 (33 U.S.C. 1251 et seq.) is an Act to protect tradi10 tional navigable waters from water pollution. 

11 (2) The term ‘‘waters of the United States’’ 

12 under the Federal Water Pollution Control Act (33 

13 U.S.C. 1251 et seq.) should identify bodies of water 

14 subject to Federal jurisdiction, and, except as pro15 vided in paragraph (3), should include— 

16 (A) traditional navigable waters and inter17 state waters; 

18 (B) the reach of a stream that is— 

19 (i) identified on 1 or more maps cre20 ated using the United States Geological 

21 Survey National Hydrology Dataset Plus 

22 at the 1:100,000 scale from Reach Address 

23 Database Version 3.1, consistent with the 

24 scale and reach address database used by 

25 the Administrator during July 2009, in 


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1 conjunction with information on drinking 

2 water source protection areas, to identify 

3 potential sources of water for public drink4 ing water systems; or 

5 (ii) for any State for which a map at 

6 the scale described in clause (i) is not 

7 available, identified on a map using the 

8 United States Geological Survey National 

9 Hydrology Dataset Plus at the available 

10 scale that is closest to the scale described 

11 in clause (i); 

12 (C) the reach of a stream that, through a 

13 surface hydrologic connection, contributes flow 

14 in a normal year to a traditional navigable 

15 water of sufficient volume, duration, and fre16 quency that pollutants in that reach would de17 grade the water quality of the traditional navi18 gable water, based on a quantifiable and statis19 tically valid measure of flow for that geographic 

20 area; and 

21 (D) wetlands situated next to a water of 

22 the United States that, in a normal year, pro23 tect the water quality of a navigable water by 

24 preventing the movement of pollutants to a nav25 igable water. 


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1 (3) The term ‘‘waters of the United States’’ 

2 under the Federal Water Pollution Control Act (33 

3 U.S.C. 1251 et seq.) should not include— 

4 (A) water that is located below the surface 

5 of the land, including soil water and ground6 water; 

7 (B) water that is not located within a body 

8 of water; 

9 (C) an isolated pond, whether natural or 

10 manmade, including a farm pond, fish pond, 

11 quarry, mine pit, ornamental pond, swimming 

12 pool, construction pit, fire control pond, sedi13 ment pond, and any other isolated facility or 

14 system that holds water; 

15 (D) a system constructed or used for the 

16 purpose of collecting, conveying, holding, or 

17 treating— 

18 (i) stormwater or floodwater within 

19 the boundaries of a State, tribal, munic20 ipal, industrial, agricultural, silvicultural, 

21 residential, or Federal facility or operation, 

22 including ditches along agricultural fields, 

23 roads, runways, parking lots, and other in24 frastructure; 


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1 (ii) wastewater within the boundaries 

2 of a State, tribal, municipal, industrial, 

3 commercial, agricultural, silvicultural, resi4 dential, or Federal facility or operation; 

5 (iii) municipal and industrial water 

6 supplies within the boundaries of a State, 

7 tribal, municipal, industrial, commercial, 

8 agricultural, silvicultural, residential, or 

9 Federal facility or operation— 

10 (I) including spreading basins for 

11 aquifer storage and recovery or aqui12 fer recharge and recovery; but 

13 (II) not including instream res14 ervoirs or other instream facilities; or 

15 (iv) water for agricultural or silvicul16 tural purposes by a municipality or at an 

17 agricultural or silvicultural facility or oper18 ation, including irrigation water, a fish 

19 production pond, livestock watering pond, 

20 irrigated field, cranberry growing field, rice 

21 production field, manure lagoon, and farm 

22 pond; 

23 (E) the reach of a stream that, through a 

24 surface hydrologic connection, does not con25 tribute flow in a normal year to a traditional 


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1 navigable water of sufficient volume, duration, 

2 and frequency that pollutants in that reach 

3 would degrade the water quality of the tradi4 tional navigable water, based on a quantifiable 

5 and statistically valid measure of flow for that 

6 geographic area; 

7 (F) prior-converted cropland (as defined in 

8 section 12.2(a) of title 7, Code of Federal Reg9 ulations (as in effect on the date of enactment 

10 of this Act)); and 

11 (G) any water that is no longer a water of 

12 the United States pursuant to a permit issued 

13 under— 

14 (i) section 10 of the Act of March 3, 

15 1899 (commonly known as the ‘‘Rivers and 

16 Harbors Appropriation Act of 1899’’) (33 

17 U.S.C. 403); or 

18 (ii) section 404 of the Federal Water 

19 Pollution Control Act (33 U.S.C. 1344). 

20 (4) Unless a subparagraph of paragraph (3) 

21 other than subparagraph (D) applies, for purposes 

22 of the Federal Water Pollution Control Act (33 

23 U.S.C. 1251 et seq.), the term ‘‘waters of the United 

24 States’’ should include a system described in para25 graph (3)(D), or a component of such a system, if 


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1 the Secretary or the Administrator demonstrates 

2 that— 

3 (A) the system was a water of the United 

4 States that was converted for use for the pur5 pose described in paragraph (3)(D) after Octo6 ber 18, 1972, without a permit under section 

7 404 of that Act (33 U.S.C. 1344), unless the 

8 construction or use of the system— 

9 (i) is described in subparagraph (A) 

10 or (C) of section 404(f)(1) of that Act (33 

11 U.S.C. 1344(f)(1)); or 

12 (ii) was otherwise exempt from per13 mitting under that Act; or 

14 (B) the system was a traditional navigable 

15 water that was converted for use for the pur16 pose described in paragraph (3)(D), unless— 

17 (i) the system is identified as a point 

18 source in a permit issued under section 

19 402 of the Federal Water Pollution Con20 trol Act (33 U.S.C. 1342); 

21 (ii) the water managed in the system 

22 is— 

23 (I) irrigation return flow exempt 

24 from permitting under section 


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1 402(l)(1) of that Act (33 U.S.C. 

2 1342(l)(1)); or 

3 (II) agricultural stormwater or 

4 return flows from irrigated agriculture 

5 exempt from permitting under section 

6 502(14) of that Act (33 U.S.C. 

7 1362(14)); 

8 (iii) the construction or use of the sys9 tem is described in subparagraph (A) or 

10 (C) of section 404(f)(1) of that Act (33 

11 U.S.C. 1344(f)(1)); or 

12 (iv) the system is a waste treatment 

13 system. 

14 (5) In promulgating a revised definition of 

15 waters of the United States, the Secretary or the 

16 Administrator shall take into consideration that— 

17 (A) the use of a body of water by an orga18 nism, including a migratory bird, does not pro19 vide a basis for establishing Federal jurisdiction 

20 under the Federal Water Pollution Control Act 

21 (33 U.S.C. 1251 et seq.); 

22 (B) the supply of water to a groundwater 

23 aquifer and the storage of water in an isolated 

24 body of water are issues that— 


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1 (i) pertain to the use of water re2 sources that shall not be superseded, abro3 gated, or otherwise impaired by the Fed4 eral Water Pollution Control Act (33 

5 U.S.C. 1251 et seq.) pursuant to sections 

6 101(g) and 510(2) of that Act (33 U.S.C. 

7 1251(g), 1370(2)); and 

8 (ii) do not provide a basis for estab9 lishing Federal jurisdiction under that Act 

10 (33 U.S.C. 1251 et seq.); and 

11 (C) evaporation, transpiration, condensa12 tion, precipitation, the overland flow of water, 

13 and the movement of water in an aquifer are all 

14 part of the water cycle and may connect all 

15 water over sufficiently long periods of time and 

16 distances, but do not provide a basis for estab17 lishing Federal jurisdiction under the Federal 

18 Water Pollution Control Act (33 U.S.C. 1251 et 

19 seq.). 

20 (6) Waters that are waters of the United States 

21 should be identified on maps provided by the Sec22 retary and the Administrator to promote certainty 

23 and transparency in jurisdictional determinations. 

24 (c) CONSIDERATION, CONSULTATION, AND RE25 PORT.— 


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1 (1) CONSIDERATION OF PUBLIC COMMENTS.— 

2 Before issuing a proposed regulation pursuant to 

3 subsection (a), the Secretary and the Administrator 

4 shall make available to the public, review, and pub5 lish a response to comments filed regarding the pro6 posed rule entitled ‘‘Definition of ‘Waters of the 

7 United States’ Under the Clean Water Act’’ of the 

8 Corps of Engineers and the Environmental Protec9 tion Agency (79 Fed. Reg. 22188 (April 21, 2014)). 

10 (2) FEDERALISM.— 

11 (A) IN GENERAL.—In proposing and pro12 mulgating a regulation pursuant to subsection 

13 (a), the Secretary and the Administrator shall 

14 ensure compliance with the federalism policy15 making criteria and consultation in accordance 

16 with Executive Order 13132 (64 Fed. Reg. 

17 43255 (August 4, 1999)), regardless of whether 

18 the Secretary and the Administrator determine 

19 that the regulation would have any substantial 

20 and direct effect on— 

21 (i) States; 

22 (ii) the relationship between the Fed23 eral Government and the States; or 


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1 (iii) the distribution of power and re2 sponsibilities among the various levels of 

3 government. 

4 (B) CONSULTATION.— 

5 (i) IN GENERAL.—To be considered 

6 meaningful consultation described in sec7 tion 101(b) of the Federal Water Pollution 

8 Control Act (33 U.S.C. 1251(b)), before 

9 publication of a proposed rule under this 

10 section, consultation shall include a discus11 sion of alternative approaches with and a 

12 request for input and advice on the ap13 proaches from States, including— 

14 (I) Governors; 

15 (II) State departments with au16 thority over water supply and water 

17 quality; 

18 (III) State departments of agri19 culture; and 

20 (IV) local governments, including 

21 elected officials, local governmental 

22 entities with authority over water sup23 ply, stormwater, waste water, and 

24 flood control, irrigation districts, and 

25 conservation districts. 


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1 (ii) TOPICS.—The topics to be ad2 dressed in the consultation under this 

3 paragraph should include— 

4 (I) categories of waters, in addi5 tion to those discussed in paragraphs 

6 (2) and (3) of subsection (b), that 

7 should be subject to Federal jurisdic8 tion or should be subject solely to 

9 State regulation; 

10 (II) what is the role of States in 

11 the identification of waters subject to 

12 Federal jurisdiction; and 

13 (III) whether channels in which 

14 water is present only during or for a 

15 short time after a precipitation event 

16 are correctly categorized as 

17 geomorphological features rather than 

18 hydrologic features. 

19 (3) REGULATORY FLEXIBILITY.—In proposing 

20 and promulgating a regulation pursuant to sub21 section (a), and regardless of whether the Secretary 

22 and the Administrator determine that the regulation 

23 would have a significant impact on a substantial 

24 number of small entities, the Secretary and the Ad25 ministrator shall— 


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1 (A) carry out the actions described in sec2 tions 603, 604, and 609 of title 5, United 

3 States Code; and 

4 (B) in carrying out those actions, take into 

5 consideration the costs of all programs under 

6 the Federal Water Pollution Control Act (33 

7 U.S.C. 1251 et seq.), regardless of whether the 

8 Secretary and the Administrator consider the 

9 costs of the proposed regulation to be direct or 

10 indirect. 

11 (4) UNFUNDED MANDATES.—In proposing and 

12 promulgating a regulation pursuant to subsection 

13 (a), the Secretary and the Administrator shall evalu14 ate the intergovernmental and private sector impacts 

15 of the regulation, in accordance with title II of the 

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

17 1531 et seq.), regardless of whether the Secretary 

18 and the Administrator— 

19 (A) consider the impacts of the proposed 

20 regulation to be direct or indirect; or 

21 (B) determine that expenditures resulting 

22 from the proposed regulation would meet the 

23 monetary thresholds established in that Act (2 

24 U.S.C. 1501 et seq.). 


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1 (5) IMPROVING REGULATION AND REGULATORY

2 REVIEW.—In proposing and promulgating a regula3 tion pursuant to subsection (a), regardless of wheth4 er the Secretary and the Administrator consider the 

5 regulation to be a significant regulatory action or 

6 significantly affect State, local, and tribal govern7 ments, the Secretary and the Administrator shall en8 sure that the regulation meets the requirements of— 

9 (A) Executive Order 12866 (5 U.S.C. 601 

10 note; relating to regulatory planning and re11 view); and 

12 (B) Executive Order 13563 (76 Fed. Reg. 

13 3821 (January 18, 2011)). 

14 (6) IMPROVING PERFORMANCE OF FEDERAL

15 PERMITTING AND REVIEW OF INFRASTRUCTURE

16 PROJECTS.—In proposing and promulgating a regu17 lation pursuant to subsection (a), the Secretary and 

18 the Administrator shall consider— 

19 (A) Executive Order 13604 (5 U.S.C. 601 

20 note; relating to improving performance of Fed21 eral permitting and review of infrastructure 

22 projects); and 

23 (B) the goal of reducing the time to make 

24 decisions in the permitting and review of infra25 structure projects by the Federal Government. 


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1 (7) REPORT.—Not later than the date that is 

2 30 days before the date of issuance of a proposed 

3 regulation pursuant to subsection (a), the Secretary 

4 and the Administrator shall submit to the Com5 mittee on Environment and Public Works of the 

6 Senate and the Committee on Transportation and 

7 Infrastructure of the House of Representatives a re8 port that— 

9 (A) describes the means by which the pro10 posed regulation, if finalized, would achieve 

11 compliance with— 

12 (i) Executive Order 12866 (5 U.S.C. 

13 601 note; relating to regulatory planning 

14 and review), including the means by 

15 which— 

16 (I) the regulation would impose 

17 the least burden on society, consistent 

18 with obtaining regulatory objectives, 

19 taking into account, among other 

20 things, and to the maximum extent 

21 practicable, the costs of cumulative 

22 regulations; and 

23 (II) the Secretary and the Ad24 ministrator identified and assessed 


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1 available alternatives to direct regula2 tion; 

3 (ii) section 2(i) of Executive Order 

4 13132 (64 Fed. Reg. 43256 (August 4, 

5 1999)), which requires agencies to ‘‘act 

6 only with the greatest caution where State 

7 or local governments have identified uncer8 tainties regarding the constitutional or 

9 statutory authority of the national govern10 ment’’; 

11 (iii) section 3 of that Executive order 

12 (64 Fed. Reg. 43256 (August 4, 1999)), 

13 which requires agencies— 

14 (I) to strictly adhere to constitu15 tional principles and statutory author16 ity; 

17 (II) to take action limiting the 

18 policymaking discretion of the States 

19 only in cases in which there exists 

20 constitutional and statutory authority 

21 for the action; 

22 (III) to provide States with max23 imum administrative discretion prac24 ticable, without intrusive Federal 

25 oversight; and 


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1 (IV) to rely on State policies to 

2 the maximum extent practicable; and 

3 (iv) Executive Order 13563 (76 Fed. 

4 Reg. 3821 (January 18, 2011)), including 

5 the public participation requirements of 

6 section 2 of that Executive order, which re7 quire an opportunity for public comment 

8 regarding all pertinent parts of the rule9 making docket, including relevant scientific 

10 and technical findings and seeking the 

11 views of those who are likely to be affected 

12 before issuing a notice of proposed rule13 making; 

14 (B) includes the Federalism summary im15 pact statement required by section 3 of Execu16 tive Order 13132 (64 Fed. Reg. 43256 (August 

17 4, 1999)); 

18 (C) includes the regulatory flexibility anal19 yses required under section 603 of title 5, 

20 United States Code, and the report of the re21 view panel required under section 609 of that 

22 title; 

23 (D) describes the small government agency 

24 plan, and the State, local, and tribal input 

25 under sections 203 and 204 of the Unfunded 


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1 Mandates Reform Act of 1995 (2 U.S.C. 1533, 

2 1534); 

3 (E) describes the means by which the pro4 posed regulation is the least costly, most cost5 effective, or least burdensome alternative, in ac6 cordance with section 205 of the Unfunded 

7 Mandates Reform Act of 1995 (2 U.S.C. 1535); 

8 (F) describes whether the Secretary and 

9 the Administrator will provide funding to State, 

10 local, and tribal governments to meet the inter11 governmental mandates imposed by the pro12 posed regulation; and 

13 (G) describes how the proposed rule will 

14 achieve the goal stated in section 1 of Executive 

15 Order 13604 (5 U.S.C. 601 note; relating to 

16 improving performance of Federal permitting 

17 and review of infrastructure projects) that the 

18 time to make decisions in the permitting and 

19 review of infrastructure projects by the Federal 

20 Government be reduced. 

21 (8) TIMING.—In carrying out this section, the 

22 Secretary and the Administrator shall use best ef23 forts— 

24 (A) to provide not less than 180 days for 

25 the consultation described in paragraph (2); 


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1 (B) to provide a comment period on the re2 vised proposed rule of not less than 120 days; 

3 and 

4 (C) to publish a final rule not later than 

5 December 31, 2016. 

6 SEC. 5. MEASURE OF FLOW. 

7 After providing public notice and an opportunity for 

8 comment, the Secretary shall establish quantifiable and 

9 statistically valid measures of the volume, duration, and 

10 frequency of flow in streams in different geographic areas 

11 that would, in a normal year, allow pollutants in reaches 

12 of streams in those geographic areas to flow to and de13 grade the water quality of a traditional navigable water. 

14 SEC. 6. REPORT TO CONGRESS. 

15 Not later than the date that is 3 years after the date 

16 of promulgation of a regulation pursuant to section 4, and 

17 not less frequently than once every 3 years thereafter, the 

18 Comptroller General of the United States, after consulta19 tion with State, local, and tribal governments and other 

20 affected entities, shall— 

21 (1) review the jurisdictional determinations 

22 made during the applicable period by the Secretary 

23 and the Administrator; and 

24 (2) submit to Congress a report that de25 scribes— 


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1 (A) the interpretations of the regulation 

2 by— 

3 (i) districts of the Corps of Engineers; 

4 and 

5 (ii) regional offices of the Environ6 mental Protection Agency; 

7 (B) whether those interpretations are con8 sistent; 

9 (C) if any inconsistency exists, the meas10 ures carried out by the Secretary and the Ad11 ministrator to reduce the inconsistency or an 

12 explanation of the geographic differences that 

13 make the inconsistency appropriate; and 

14 (D) the impacts of those interpretations on 

15 Federal permitting and review of infrastructure 

16 projects, and the goal stated in section 1 of Ex17 ecutive Order 13604 (5 U.S.C. 601 note; relat18 ing to improving performance of Federal per19 mitting and review of infrastructure projects) 

20 that the time to make decisions in the permit21 ting and review of infrastructure projects by the 

22 Federal Government be reduced. 


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•S 1140 IS

1 SEC. 7. EFFECT OF ACT. 

2 (a) PERMITTING AUTHORITY.—Nothing in this Act 

3 limits the authority of the Secretary or the Adminis4 trator— 

5 (1) to require a permit for any discharge of pol6 lutants to a navigable water under the Federal 

7 Water Pollution Control Act (33 U.S.C. 1251 et 

8 seq.); or 

9 (2) to take any enforcement action with respect 

10 to an unpermitted discharge under that Act. 

11 (b) WATER TRANSFERS.—Nothing in this Act affects 

12 a determination regarding whether the transfer of water 

13 from 1 body of water to another requires a permit under 

14 section 402 of the Federal Water Pollution Control Act 

15 (33 U.S.C. 1342). 

16 (c) RETENTION OF STATE AUTHORITY.—Nothing in 

17 this Act places any limitation on the scope of water subject 

18 to State jurisdiction under State law. 

Æ 


SSpencer on DSK4SPTVN1PROD with BILLS