II 

Calendar No. 153 

114TH CONGRESS 

1ST SESSION S. 1140 

[Report No. 114–84] 

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, Mr. HOEVEN, Mr. VITTER, Mr. CRAPO, Mr. BOOZMAN, Mr. FLAKE, Mr. COTTON, Mr. PERDUE, 

Ms. MURKOWSKI, Mr. COCHRAN, Mr. WICKER, Mr. MORAN, Mr. THUNE, 

Mr. SCOTT, Mr. HATCH, Mr. RISCH, Mr. GRASSLEY, Mr. MCCAIN, Mr. 

ISAKSON, Mr. TILLIS, Mr. ALEXANDER, Mr. DAINES, Mr. COATS, Mr. 

CORNYN, Mr. HELLER, Mr. LEE, Mr. CASSIDY, Mrs. ERNST, Mr. JOHNSON, Mr. SASSE, Mr. SHELBY, and Mr. ENZI) introduced the following 

bill; which was read twice and referred to the Committee on Environment 

and Public Works 

JULY 16, 2015 

Reported by Mr. INHOFE, with an amendment 

[Strike out all after the enacting clause and insert the part printed in italic] 

A BILL 

To require the Secretary of the Army and the Administrator 

of the Environmental Protection Agency to propose a 

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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— 

8 (1) in section 101(b) of the Federal Water Pol9 lution Control Act (33 U.S.C. 1251(b)), Congress 

10 adopted the principle of cooperative federalism, rec11 ognizing that ‘‘[i]t is the policy of the Congress to 

12 recognize, preserve, and protect the primary respon13 sibilities and rights of States to prevent, reduce, and 

14 eliminate pollution, to plan the development and use 

15 (including restoration, preservation, and enhance16 ment) of land and water resources, and to consult 

17 with the Administrator in the exercise of his author18 ity under this Act’’; 

19 (2) adequate consultation with States and local 

20 governments and affected entities is necessary— 

21 (A) to ensure that Federal departments 

22 and agencies understand the scope and impacts 

23 of regulatory proposals; 

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1 (B) to maintain the cooperative federalism 

2 foundation of the Federal Water Pollution Con3 trol Act (33 U.S.C. 1251 et seq.); and 

4 (C) to respect the limits on Federal au5 thority; 

6 (3)(A) States have robust water quality protec7 tion programs capable of greater regulatory controls 

8 on waters not covered by Federal jurisdiction; and 

9 (B) an exclusion of waters from Federal juris10 diction does not mean that excluded waters will be 

11 exempt from regulation and protection, but rather, 

12 it recognizes the limits of Federal jurisdiction under 

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

14 1251 et seq.) and the primary role of States in pro15 tecting State waters; and 

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

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

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

19 agency to provide notice and an opportunity to com20 ment regarding— 

21 (A) information, including scientific and 

22 technical findings, on which the agency relies in 

23 taking a regulatory action; and 

24 (B) definitions, exclusions, and standards 

25 that determine the limits of Federal regulation. 

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1 SEC. 3. DEFINITIONS. 

2 In this Act: 

3 (1) ADMINISTRATOR.—The term ‘‘Adminis4 trator’’ means the Administrator of the Environ5 mental Protection Agency. 

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

7 water’’ means a traditional navigable water, terri8 torial sea, river, stream, lake, pond, or wetlands. 

9 (3) INTERSTATE WATERS.—The term ‘‘inter10 state waters’’ means the water described in section 

11 328.3(a)(2) of title 33, Code of Federal Regulations 

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

13 of this Act). 

14 (4) ISOLATED.—The term ‘‘isolated’’, with re15 spect to a body of water, means the absence of a 

16 surface hydrologic connection to a traditional navi17 gable water. 

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

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

20 association, or other public entity that— 

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

22 State law; and 

23 (B) has authority over the distribution of 

24 water or the disposal of sewage, industrial 

25 waste, or any other waste. 

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

2 means— 

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

4 term is used by the Natural Resources Con5 servation Service of the Department of Agri6 culture, based on data from a specific geo7 graphic area; or 

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

9 in subparagraph (A) are available, the average 

10 of the observed monthly data from a specific ge11 ographic area over the period of record. 

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

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

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

15 1362). 

16 (8) PUBLIC NOTICE AND AN OPPORTUNITY FOR

17 COMMENT.— 

18 (A) IN GENERAL.—The term ‘‘public no19 tice and an opportunity for comment’’ means 

20 notice and opportunity for comment that meets 

21 the requirements of subchapter II of chapter 5, 

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

23 (commonly known as the ‘‘Administrative Pro24 cedure Act’’). 

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

2 and an opportunity for comment’’ includes the 

3 opportunity for public hearings in different geo4 graphic regions with different hydrology, includ5 ing separate meetings in the arid West. 

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

7 the Secretary of the Army. 

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

9 natural channel formed by the flow of water that has 

10 a bed, bank, and ordinary high water mark (as de11 fined in section 328.3(e) of title 33, Code of Federal 

12 Regulations (as in effect on the date of enactment 

13 of this Act)). 

14 (11) SURFACE HYDROLOGIC CONNECTION.— 

15 (A) IN GENERAL.—The term ‘‘surface hy16 drologic connection’’ means a continuous sur17 face connection through which water moves 

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

19 to another. 

20 (B) EXCLUSION.—The term ‘‘surface hy21 drologic connection’’ does not include— 

22 (i) overland flow of water outside a 

23 body of water (including sheetflow); or 

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1 (ii) the movement of water through 

2 soil, subsurface tiles, or a groundwater aq3 uifer. 

4 (C) DETERMINATION OF CONTINUOUS5 NESS.—For purposes of this paragraph, a sur6 face hydrologic connection shall be considered 

7 to be continuous if the connection is continuous, 

8 regardless of whether— 

9 (i) water is not always present; and 

10 (ii) there is a break in the ordinary 

11 high water mark of a stream that is unre12 lated to the flow regime of the stream, in13 cluding a break caused by a culvert, pipe, 

14 dam, or by the flow of the stream under15 ground for a short distance, such as 

16 through a cave. 

17 (12) TRADITIONAL NAVIGABLE WATER.—The 

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

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

20 Federal Regulations (as in effect on the date of en21 actment of this Act). 

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

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

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

25 the date of enactment of this Act). 

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

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

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

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

5 pursuant to the Federal Water Pollution Control Act (33 

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

7 no force or effect— 

8 (1) unless the revision adheres to the principles 

9 under subsection (b); and 

10 (2) until after the Secretary and the Adminis11 trator carry out each action described in subsection 

12 (c). 

13 (b) PRINCIPLES.—In promulgating a revised regu14 latory definition pursuant to this subsection, the Secretary 

15 and the Administrator shall adhere to the following prin16 ciples: 

17 (1) The Federal Water Pollution Control Act 

18 (33 U.S.C. 1251 et seq.) is an Act to protect tradi19 tional navigable waters from water pollution. 

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

21 under the Federal Water Pollution Control Act (33 

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

23 subject to Federal jurisdiction, and, except as pro24 vided in paragraph (3), should include— 

25 (A) traditional navigable waters and inter26 state waters; 

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1 (B) the reach of a stream that is— 

2 (i) identified on 1 or more maps cre3 ated using the United States Geological 

4 Survey National Hydrology Dataset Plus 

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

6 Database Version 3.1, consistent with the 

7 scale and reach address database used by 

8 the Administrator during July 2009, in 

9 conjunction with information on drinking 

10 water source protection areas, to identify 

11 potential sources of water for public drink12 ing water systems; or 

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

14 the scale described in clause (i) is not 

15 available, identified on a map using the 

16 United States Geological Survey National 

17 Hydrology Dataset Plus at the available 

18 scale that is closest to the scale described 

19 in clause (i); 

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

21 surface hydrologic connection, contributes flow 

22 in a normal year to a traditional navigable 

23 water of sufficient volume, duration, and fre24 quency that pollutants in that reach would de25 grade the water quality of the traditional navimstockstill on DSK4VPTVN1PROD with BILLS

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1 gable water, based on a quantifiable and statis2 tically valid measure of flow for that geographic 

3 area; and 

4 (D) wetlands situated next to a water of 

5 the United States that, in a normal year, pro6 tect the water quality of a navigable water by 

7 preventing the movement of pollutants to a nav8 igable water. 

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

10 under the Federal Water Pollution Control Act (33 

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

12 (A) water that is located below the surface 

13 of the land, including soil water and ground14 water; 

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

16 of water; 

17 (C) an isolated pond, whether natural or 

18 manmade, including a farm pond, fish pond, 

19 quarry, mine pit, ornamental pond, swimming 

20 pool, construction pit, fire control pond, sedi21 ment pond, and any other isolated facility or 

22 system that holds water; 

23 (D) a system constructed or used for the 

24 purpose of collecting, conveying, holding, or 

25 treating— 

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1 (i) stormwater or floodwater within 

2 the boundaries of a State, tribal, munic3 ipal, industrial, agricultural, silvicultural, 

4 residential, or Federal facility or operation, 

5 including ditches along agricultural fields, 

6 roads, runways, parking lots, and other in7 frastructure; 

8 (ii) wastewater within the boundaries 

9 of a State, tribal, municipal, industrial, 

10 commercial, agricultural, silvicultural, resi11 dential, or Federal facility or operation; 

12 (iii) municipal and industrial water 

13 supplies within the boundaries of a State, 

14 tribal, municipal, industrial, commercial, 

15 agricultural, silvicultural, residential, or 

16 Federal facility or operation— 

17 (I) including spreading basins for 

18 aquifer storage and recovery or aqui19 fer recharge and recovery; but 

20 (II) not including instream res21 ervoirs or other instream facilities; or 

22 (iv) water for agricultural or silvicul23 tural purposes by a municipality or at an 

24 agricultural or silvicultural facility or oper25 ation, including irrigation water, a fish 

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1 production pond, livestock watering pond, 

2 irrigated field, cranberry growing field, rice 

3 production field, manure lagoon, and farm 

4 pond; 

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

6 surface hydrologic connection, does not con7 tribute flow in a normal year to a traditional 

8 navigable water of sufficient volume, duration, 

9 and frequency that pollutants in that reach 

10 would degrade the water quality of the tradi11 tional navigable water, based on a quantifiable 

12 and statistically valid measure of flow for that 

13 geographic area; 

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

15 section 12.2(a) of title 7, Code of Federal Reg16 ulations (as in effect on the date of enactment 

17 of this Act)); and 

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

19 the United States pursuant to a permit issued 

20 under— 

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

22 1899 (commonly known as the ‘‘Rivers and 

23 Harbors Appropriation Act of 1899’’) (33 

24 U.S.C. 403); or 

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1 (ii) section 404 of the Federal Water 

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

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

4 other than subparagraph (D) applies, for purposes 

5 of the Federal Water Pollution Control Act (33 

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

7 States’’ should include a system described in para8 graph (3)(D), or a component of such a system, if 

9 the Secretary or the Administrator demonstrates 

10 that— 

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

12 States that was converted for use for the pur13 pose described in paragraph (3)(D) after Octo14 ber 18, 1972, without a permit under section 

15 404 of that Act (33 U.S.C. 1344), unless the 

16 construction or use of the system— 

17 (i) is described in subparagraph (A) 

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

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

20 (ii) was otherwise exempt from per21 mitting under that Act; or 

22 (B) the system was a traditional navigable 

23 water that was converted for use for the pur24 pose described in paragraph (3)(D), unless— 

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1 (i) the system is identified as a point 

2 source in a permit issued under section 

3 402 of the Federal Water Pollution Con4 trol Act (33 U.S.C. 1342); 

5 (ii) the water managed in the system 

6 is— 

7 (I) irrigation return flow exempt 

8 from permitting under section 

9 402(l)(1) of that Act (33 U.S.C. 

10 1342(l)(1)); or 

11 (II) agricultural stormwater or 

12 return flows from irrigated agriculture 

13 exempt from permitting under section 

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

15 1362(14)); 

16 (iii) the construction or use of the sys17 tem is described in subparagraph (A) or 

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

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

20 (iv) the system is a waste treatment 

21 system. 

22 (5) In promulgating a revised definition of 

23 waters of the United States, the Secretary or the 

24 Administrator shall take into consideration that— 

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1 (A) the use of a body of water by an orga2 nism, including a migratory bird, does not pro3 vide a basis for establishing Federal jurisdiction 

4 under the Federal Water Pollution Control Act 

5 (33 U.S.C. 1251 et seq.); 

6 (B) the supply of water to a groundwater 

7 aquifer and the storage of water in an isolated 

8 body of water are issues that— 

9 (i) pertain to the use of water re10 sources that shall not be superseded, abro11 gated, or otherwise impaired by the Fed12 eral Water Pollution Control Act (33 

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

14 101(g) and 510(2) of that Act (33 U.S.C. 

15 1251(g), 1370(2)); and 

16 (ii) do not provide a basis for estab17 lishing Federal jurisdiction under that Act 

18 (33 U.S.C. 1251 et seq.); and 

19 (C) evaporation, transpiration, condensa20 tion, precipitation, the overland flow of water, 

21 and the movement of water in an aquifer are all 

22 part of the water cycle and may connect all 

23 water over sufficiently long periods of time and 

24 distances, but do not provide a basis for estab25 lishing Federal jurisdiction under the Federal 

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

2 seq.). 

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

4 should be identified on maps provided by the Sec5 retary and the Administrator to promote certainty 

6 and transparency in jurisdictional determinations. 

7 (c) CONSIDERATION, CONSULTATION, AND RE8 PORT.— 

9 (1) CONSIDERATION OF PUBLIC COMMENTS.— 

10 Before issuing a proposed regulation pursuant to 

11 subsection (a), the Secretary and the Administrator 

12 shall make available to the public, review, and pub13 lish a response to comments filed regarding the pro14 posed rule entitled ‘‘Definition of ‘Waters of the 

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

16 Corps of Engineers and the Environmental Protec17 tion Agency (79 Fed. Reg. 22188 (April 21, 2014)). 

18 (2) FEDERALISM.— 

19 (A) IN GENERAL.—In proposing and pro20 mulgating a regulation pursuant to subsection 

21 (a), the Secretary and the Administrator shall 

22 ensure compliance with the federalism policy23 making criteria and consultation in accordance 

24 with Executive Order 13132 (64 Fed. Reg. 

25 43255 (August 4, 1999)), regardless of whether 

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1 the Secretary and the Administrator determine 

2 that the regulation would have any substantial 

3 and direct effect on— 

4 (i) States; 

5 (ii) the relationship between the Fed6 eral Government and the States; or 

7 (iii) the distribution of power and re8 sponsibilities among the various levels of 

9 government. 

10 (B) CONSULTATION.— 

11 (i) IN GENERAL.—To be considered 

12 meaningful consultation described in sec13 tion 101(b) of the Federal Water Pollution 

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

15 publication of a proposed rule under this 

16 section, consultation shall include a discus17 sion of alternative approaches with and a 

18 request for input and advice on the ap19 proaches from States, including— 

20 (I) Governors; 

21 (II) State departments with au22 thority over water supply and water 

23 quality; 

24 (III) State departments of agri25 culture; and 

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1 (IV) local governments, including 

2 elected officials, local governmental 

3 entities with authority over water sup4 ply, stormwater, waste water, and 

5 flood control, irrigation districts, and 

6 conservation districts. 

7 (ii) TOPICS.—The topics to be ad8 dressed in the consultation under this 

9 paragraph should include— 

10 (I) categories of waters, in addi11 tion to those discussed in paragraphs 

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

13 should be subject to Federal jurisdic14 tion or should be subject solely to 

15 State regulation; 

16 (II) what is the role of States in 

17 the identification of waters subject to 

18 Federal jurisdiction; and 

19 (III) whether channels in which 

20 water is present only during or for a 

21 short time after a precipitation event 

22 are correctly categorized as 

23 geomorphological features rather than 

24 hydrologic features. 

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1 (3) REGULATORY FLEXIBILITY.—In proposing 

2 and promulgating a regulation pursuant to sub3 section (a), and regardless of whether the Secretary 

4 and the Administrator determine that the regulation 

5 would have a significant impact on a substantial 

6 number of small entities, the Secretary and the Ad7 ministrator shall— 

8 (A) carry out the actions described in sec9 tions 603, 604, and 609 of title 5, United 

10 States Code; and 

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

12 consideration the costs of all programs under 

13 the Federal Water Pollution Control Act (33 

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

15 Secretary and the Administrator consider the 

16 costs of the proposed regulation to be direct or 

17 indirect. 

18 (4) UNFUNDED MANDATES.—In proposing and 

19 promulgating a regulation pursuant to subsection 

20 (a), the Secretary and the Administrator shall evalu21 ate the intergovernmental and private sector impacts 

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

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

24 1531 et seq.), regardless of whether the Secretary 

25 and the Administrator— 

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1 (A) consider the impacts of the proposed 

2 regulation to be direct or indirect; or 

3 (B) determine that expenditures resulting 

4 from the proposed regulation would meet the 

5 monetary thresholds established in that Act (2 

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

7 (5) IMPROVING REGULATION AND REGULATORY

8 REVIEW.—In proposing and promulgating a regula9 tion pursuant to subsection (a), regardless of wheth10 er the Secretary and the Administrator consider the 

11 regulation to be a significant regulatory action or 

12 significantly affect State, local, and tribal govern13 ments, the Secretary and the Administrator shall en14 sure that the regulation meets the requirements of— 

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

16 note; relating to regulatory planning and re17 view); and 

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

19 3821 (January 18, 2011)). 

20 (6) IMPROVING PERFORMANCE OF FEDERAL

21 PERMITTING AND REVIEW OF INFRASTRUCTURE

22 PROJECTS.—In proposing and promulgating a regu23 lation pursuant to subsection (a), the Secretary and 

24 the Administrator shall consider— 

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

2 note; relating to improving performance of Fed3 eral permitting and review of infrastructure 

4 projects); and 

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

6 decisions in the permitting and review of infra7 structure projects by the Federal Government. 

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

9 30 days before the date of issuance of a proposed 

10 regulation pursuant to subsection (a), the Secretary 

11 and the Administrator shall submit to the Com12 mittee on Environment and Public Works of the 

13 Senate and the Committee on Transportation and 

14 Infrastructure of the House of Representatives a re15 port that— 

16 (A) describes the means by which the pro17 posed regulation, if finalized, would achieve 

18 compliance with— 

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

20 601 note; relating to regulatory planning 

21 and review), including the means by 

22 which— 

23 (I) the regulation would impose 

24 the least burden on society, consistent 

25 with obtaining regulatory objectives, 

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1 taking into account, among other 

2 things, and to the maximum extent 

3 practicable, the costs of cumulative 

4 regulations; and 

5 (II) the Secretary and the Ad6 ministrator identified and assessed 

7 available alternatives to direct regula8 tion; 

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

10 13132 (64 Fed. Reg. 43256 (August 4, 

11 1999)), which requires agencies to ‘‘act 

12 only with the greatest caution where State 

13 or local governments have identified uncer14 tainties regarding the constitutional or 

15 statutory authority of the national govern16 ment’’; 

17 (iii) section 3 of that Executive order 

18 (64 Fed. Reg. 43256 (August 4, 1999)), 

19 which requires agencies— 

20 (I) to strictly adhere to constitu21 tional principles and statutory author22 ity; 

23 (II) to take action limiting the 

24 policymaking discretion of the States 

25 only in cases in which there exists 

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1 constitutional and statutory authority 

2 for the action; 

3 (III) to provide States with max4 imum administrative discretion prac5 ticable, without intrusive Federal 

6 oversight; and 

7 (IV) to rely on State policies to 

8 the maximum extent practicable; and 

9 (iv) Executive Order 13563 (76 Fed. 

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

11 the public participation requirements of 

12 section 2 of that Executive order, which re13 quire an opportunity for public comment 

14 regarding all pertinent parts of the rule15 making docket, including relevant scientific 

16 and technical findings and seeking the 

17 views of those who are likely to be affected 

18 before issuing a notice of proposed rule19 making; 

20 (B) includes the Federalism summary im21 pact statement required by section 3 of Execu22 tive Order 13132 (64 Fed. Reg. 43256 (August 

23 4, 1999)); 

24 (C) includes the regulatory flexibility anal25 yses required under section 603 of title 5, 

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1 United States Code, and the report of the re2 view panel required under section 609 of that 

3 title; 

4 (D) describes the small government agency 

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

6 under sections 203 and 204 of the Unfunded 

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

8 1534); 

9 (E) describes the means by which the pro10 posed regulation is the least costly, most cost11 effective, or least burdensome alternative, in ac12 cordance with section 205 of the Unfunded 

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

14 (F) describes whether the Secretary and 

15 the Administrator will provide funding to State, 

16 local, and tribal governments to meet the inter17 governmental mandates imposed by the pro18 posed regulation; and 

19 (G) describes how the proposed rule will 

20 achieve the goal stated in section 1 of Executive 

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

22 improving performance of Federal permitting 

23 and review of infrastructure projects) that the 

24 time to make decisions in the permitting and 

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1 review of infrastructure projects by the Federal 

2 Government be reduced. 

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

4 Secretary and the Administrator shall use best ef5 forts— 

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

7 the consultation described in paragraph (2); 

8 (B) to provide a comment period on the re9 vised proposed rule of not less than 120 days; 

10 and 

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

12 December 31, 2016. 

13 SEC. 5. MEASURE OF FLOW. 

14 After providing public notice and an opportunity for 

15 comment, the Secretary shall establish quantifiable and 

16 statistically valid measures of the volume, duration, and 

17 frequency of flow in streams in different geographic areas 

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

19 of streams in those geographic areas to flow to and de20 grade the water quality of a traditional navigable water. 

21 SEC. 6. REPORT TO CONGRESS. 

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

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

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

25 Comptroller General of the United States, after consultamstockstill on DSK4VPTVN1PROD with BILLS

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1 tion with State, local, and tribal governments and other 

2 affected entities, shall— 

3 (1) review the jurisdictional determinations 

4 made during the applicable period by the Secretary 

5 and the Administrator; and 

6 (2) submit to Congress a report that de7 scribes— 

8 (A) the interpretations of the regulation 

9 by— 

10 (i) districts of the Corps of Engineers; 

11 and 

12 (ii) regional offices of the Environ13 mental Protection Agency; 

14 (B) whether those interpretations are con15 sistent; 

16 (C) if any inconsistency exists, the meas17 ures carried out by the Secretary and the Ad18 ministrator to reduce the inconsistency or an 

19 explanation of the geographic differences that 

20 make the inconsistency appropriate; and 

21 (D) the impacts of those interpretations on 

22 Federal permitting and review of infrastructure 

23 projects, and the goal stated in section 1 of Ex24 ecutive Order 13604 (5 U.S.C. 601 note; relat25 ing to improving performance of Federal permstockstill on DSK4VPTVN1PROD with BILLS

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1 mitting and review of infrastructure projects) 

2 that the time to make decisions in the permit3 ting and review of infrastructure projects by the 

4 Federal Government be reduced. 

5 SEC. 7. EFFECT OF ACT. 

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

7 limits the authority of the Secretary or the Adminis8 trator— 

9 (1) to require a permit for any discharge of pol10 lutants to a navigable water under the Federal 

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

12 seq.); or 

13 (2) to take any enforcement action with respect 

14 to an unpermitted discharge under that Act. 

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

16 a determination regarding whether the transfer of water 

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

18 section 402 of the Federal Water Pollution Control Act 

19 (33 U.S.C. 1342). 

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

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

22 to State jurisdiction under State law. 

23 SECTION 1. SHORT TITLE. 

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

25 Protection Act’’. 

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1 SEC. 2. FINDINGS. 

2 Congress finds that— 

3 (1) in section 101(b) of the Federal Water Pollu4 tion Control Act (33 U.S.C. 1251(b)), Congress adopt5 ed the principle of cooperative federalism, recognizing 

6 that ‘‘[i]t is the policy of the Congress to recognize, 

7 preserve, and protect the primary responsibilities and 

8 rights of States to prevent, reduce, and eliminate pol9 lution, to plan the development and use (including 

10 restoration, preservation, and enhancement) of land 

11 and water resources, and to consult with the Adminis12 trator in the exercise of his authority under this Act’’; 

13 (2) adequate consultation with States and local 

14 governments and affected entities is necessary— 

15 (A) to ensure that Federal departments and 

16 agencies understand the scope and impacts of 

17 regulatory proposals; 

18 (B) to maintain the cooperative federalism 

19 foundation of the Federal Water Pollution Con20 trol Act (33 U.S.C. 1251 et seq.); and 

21 (C) to respect the limits on Federal author22 ity; 

23 (3)(A) States have robust water quality protec24 tion programs capable of greater regulatory controls 

25 on waters not covered by Federal jurisdiction; and 

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1 (B) an exclusion of waters from Federal jurisdic2 tion does not mean that excluded waters will be ex3 empt from regulation and protection, but rather, it 

4 recognizes the limits of Federal jurisdiction under the 

5 Federal Water Pollution Control Act (33 U.S.C. 1251 

6 et seq.) and the primary role of States in protecting 

7 State waters; and 

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

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

10 ‘‘Administrative Procedure Act’’), requires each agen11 cy to provide notice and an opportunity to comment 

12 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 water’’ 

24 means a traditional navigable water, territorial sea, 

25 river, stream, lake, pond, or wetlands. 

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1 (3) INTERSTATE WATERS.—The term ‘‘interstate 

2 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 sur8 face hydrologic connection to a traditional navigable 

9 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 waste, 

17 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 Conserva22 tion Service of the Department of Agriculture, 

23 based on data from a specific geographic area; or 

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

25 in subparagraph (A) are available, the average 

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1 of the observed monthly data from a specific geo2 graphic area over the period of record. 

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

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

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

6 1362). 

7 (8) PUBLIC NOTICE AND AN OPPORTUNITY FOR

8 COMMENT.— 

9 (A) IN GENERAL.—The term ‘‘public notice 

10 and an opportunity for comment’’ means notice 

11 and opportunity for comment that meets the re12 quirements of subchapter II of chapter 5, and 

13 chapter 7, of title 5, United States Code (com14 monly known as the ‘‘Administrative Procedure 

15 Act’’). 

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

17 and an opportunity for comment’’ includes the 

18 opportunity for public hearings in different geo19 graphic regions with different hydrology, includ20 ing separate meetings in the arid West. 

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

22 the Secretary of the Army. 

23 (10) STREAM.—The term ‘‘stream’’ means a nat24 ural channel formed by the flow of water that has a 

25 bed, bank, and ordinary high water mark (as defined 

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1 in section 328.3(e) of title 33, Code of Federal Regula2 tions (as in effect on the date of enactment of this 

3 Act)). 

4 (11) SURFACE HYDROLOGIC CONNECTION.— 

5 (A) IN GENERAL.—The term ‘‘surface hy6 drologic connection’’ means a continuous surface 

7 connection through which water moves within a 

8 body of water or from 1 body of water to an9 other. 

10 (B) EXCLUSION.—The term ‘‘surface hydro11 logic connection’’ does not include— 

12 (i) overland flow of water outside a 

13 body of water (including sheetflow); or 

14 (ii) the movement of water through 

15 soil, subsurface tiles, or a groundwater aq16 uifer. 

17 (C) DETERMINATION OF CONTINUOUS18 NESS.—For purposes of this paragraph, a sur19 face hydrologic connection shall be considered to 

20 be continuous if the connection is continuous, re21 gardless of whether— 

22 (i) water is not always present; and 

23 (ii) there is a break in the ordinary 

24 high water mark of a stream that is unre25 lated to the flow regime of the stream, inmstockstill on DSK4VPTVN1PROD with BILLS

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1 cluding a break caused by a culvert, pipe, 

2 dam, or by the flow of the stream under3 ground for a short distance, such as through 

4 a cave. 

5 (12) TRADITIONAL NAVIGABLE WATER.—The 

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

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

8 Federal Regulations (as in effect on the date of enact9 ment of this Act). 

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

11 meaning given the term in section 328.3(b) of title 33, 

12 Code of Federal Regulations (as in effect on the date 

13 of enactment of this Act). 

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

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

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

17 or ‘‘waters of the United States’’ promulgated or issued pur18 suant to the Federal Water Pollution Control Act (33 

19 U.S.C. 1251 et seq.) after February 4, 2015, shall have no 

20 force or effect— 

21 (1) unless the revision adheres to the principles 

22 under subsection (b); and 

23 (2) until after the Secretary and the Adminis24 trator carry out each action described in subsection 

25 (c). 

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1 (b) PRINCIPLES.—In promulgating a revised regu2 latory definition pursuant to this subsection, the Secretary 

3 and the Administrator shall adhere to the following prin4 ciples: 

5 (1) The Federal Water Pollution Control Act (33 

6 U.S.C. 1251 et seq.) is an Act to protect traditional 

7 navigable waters from water pollution. 

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

9 under the Federal Water Pollution Control Act (33 

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

11 subject to Federal jurisdiction, and, except as pro12 vided in paragraph (3), should include— 

13 (A) traditional navigable waters and inter14 state waters; 

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

16 (i) identified on 1 or more maps cre17 ated using the United States Geological 

18 Survey National Hydrology Dataset Plus at 

19 the 1:100,000 scale from Reach Address 

20 Database Version 3.1, consistent with the 

21 scale and reach address database used by 

22 the Administrator during July 2009, in 

23 conjunction with information on drinking 

24 water source protection areas, to identify 

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1 potential sources of water for public drink2 ing water systems; or 

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

4 the scale described in clause (i) is not avail5 able, identified on a map using the United 

6 States Geological Survey National Hydrol7 ogy Dataset Plus at the available scale that 

8 is closest to the scale described in clause (i); 

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

10 surface hydrologic connection, contributes flow in 

11 a normal year to a traditional navigable water 

12 of sufficient volume, duration, and frequency 

13 that pollutants in that reach would degrade the 

14 water quality of the traditional navigable water, 

15 based on a quantifiable and statistically valid 

16 measure of flow for that geographic area; and 

17 (D) wetlands situated next to a water of the 

18 United States that, in a normal year, protect the 

19 water quality of a navigable water by preventing 

20 the movement of pollutants to a navigable water. 

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

22 under the Federal Water Pollution Control Act (33 

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

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1 (A) water that is located below the surface 

2 of the land, including soil water and ground3 water; 

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

5 of water; 

6 (C) an isolated pond, whether natural or 

7 manmade, including a farm pond, fish pond, 

8 quarry, mine pit, ornamental pond, swimming 

9 pool, construction pit, fire control pond, sedi10 ment pond, and any other isolated facility or 

11 system that holds water; 

12 (D) a system constructed or used for the 

13 purpose of collecting, conveying, holding, or 

14 treating— 

15 (i) stormwater or floodwater within the 

16 boundaries of a State, tribal, municipal, in17 dustrial, agricultural, silvicultural, residen18 tial, or Federal facility or operation, in19 cluding ditches along agricultural fields, 

20 roads, runways, parking lots, and other in21 frastructure; 

22 (ii) wastewater within the boundaries 

23 of a State, tribal, municipal, industrial, 

24 commercial, agricultural, silvicultural, resi25 dential, or Federal facility or operation; 

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1 (iii) municipal and industrial water 

2 supplies within the boundaries of a State, 

3 tribal, municipal, industrial, commercial, 

4 agricultural, silvicultural, residential, or 

5 Federal facility or operation— 

6 (I) including spreading basins for 

7 aquifer storage and recovery or aquifer 

8 recharge and recovery; but 

9 (II) not including instream res10 ervoirs or other instream facilities; or 

11 (iv) water for agricultural or silvicul12 tural purposes by a municipality or at an 

13 agricultural or silvicultural facility or oper14 ation, including irrigation water, a fish 

15 production pond, livestock watering pond, 

16 irrigated field, cranberry growing field, rice 

17 production field, manure lagoon, and farm 

18 pond; 

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

20 surface hydrologic connection, does not con21 tribute flow in a normal year to a traditional 

22 navigable water of sufficient volume, duration, 

23 and frequency that pollutants in that reach 

24 would degrade the water quality of the tradi25 tional navigable water, based on a quantifiable 

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1 and statistically valid measure of flow for that 

2 geographic area; 

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

4 section 12.2(a) of title 7, Code of Federal Regula5 tions (as in effect on the date of enactment of 

6 this Act)); and 

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

8 the United States pursuant to a permit issued 

9 under— 

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

11 1899 (commonly known as the ‘‘Rivers and 

12 Harbors Appropriation Act of 1899’’) (33 

13 U.S.C. 403); or 

14 (ii) section 404 of the Federal Water 

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

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

17 other than subparagraph (D) applies, for purposes of 

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

19 1251 et seq.), the term ‘‘waters of the United States’’ 

20 should include a system described in paragraph 

21 (3)(D), or a component of such a system, if the Sec22 retary or the Administrator demonstrates that— 

23 (A) the system or component was a water of 

24 the United States that was converted for use for 

25 the purpose described in paragraph (3)(D) after 

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1 the effective date of initial regulations imple2 menting section 404 of that Act (33 U.S.C. 

3 1344), without a permit under that section un4 less the construction or use of the system or com5 ponent— 

6 (i) is described in subparagraph (A) or 

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

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

9 (ii) was otherwise exempt from permit10 ting under that Act; or 

11 (B) the system or component was a tradi12 tional navigable water that was converted for use 

13 for the purpose described in paragraph (3)(D), 

14 at any time unless— 

15 (i) the system or component is identi16 fied as a point source in a permit issued 

17 under section 402 of the Federal Water Pol18 lution Control Act (33 U.S.C. 1342); 

19 (ii) the water managed in the system 

20 or component is— 

21 (I) irrigation return flow exempt 

22 from permitting under section 

23 402(l)(1) of that Act (33 U.S.C. 

24 1342(l)(1)); or 

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1 (II) agricultural stormwater or 

2 return flows from irrigated agriculture 

3 exempt from permitting under section 

4 502(14) of that Act (33 U.S.C. 

5 1362(14)); 

6 (iii) the construction or use of the sys7 tem or component is described in subpara8 graph (A) or (C) of section 404(f)(1) of that 

9 Act (33 U.S.C. 1344(f)(1)); or 

10 (iv) the system or component is a 

11 waste treatment system. 

12 (5) In promulgating a revised definition of 

13 waters of the United States, the Secretary and the Ad14 ministrator shall take into consideration that— 

15 (A) the use of a body of water by an orga16 nism, including a migratory bird, does not pro17 vide a basis for establishing Federal jurisdiction 

18 under the Federal Water Pollution Control Act 

19 (33 U.S.C. 1251 et seq.); 

20 (B) the supply of water to a groundwater 

21 aquifer and the storage of water in an isolated 

22 body of water are issues that— 

23 (i) pertain to the use of water resources 

24 that shall not be superseded, abrogated, or 

25 otherwise impaired by the Federal Water 

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1 Pollution Control Act (33 U.S.C. 1251 et 

2 seq.) pursuant to sections 101(g) and 510(2) 

3 of that Act (33 U.S.C. 1251(g), 1370(2)); 

4 and 

5 (ii) do not provide a basis for estab6 lishing Federal jurisdiction under that Act 

7 (33 U.S.C. 1251 et seq.); and 

8 (C) evaporation, transpiration, condensa9 tion, precipitation, the overland flow of water, 

10 and the movement of water in an aquifer are all 

11 part of the water cycle and may connect all 

12 water over sufficiently long periods of time and 

13 distances, but do not provide a basis for estab14 lishing Federal jurisdiction under the Federal 

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

16 seq.). 

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

18 should be identified on maps provided by the Sec19 retary and the Administrator to promote certainty 

20 and transparency in jurisdictional determinations. 

21 (c) CONSIDERATION, CONSULTATION, AND REPORT.— 

22 (1) FEDERALISM.— 

23 (A) IN GENERAL.—In proposing and pro24 mulgating a regulation pursuant to subsection 

25 (a), the Secretary and the Administrator shall 

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1 ensure compliance with the federalism policy2 making criteria and consultation in accordance 

3 with Executive Order 13132 (64 Fed. Reg. 43255 

4 (August 4, 1999)), regardless of whether the Sec5 retary and the Administrator determine that the 

6 regulation would have any substantial and di7 rect effect on— 

8 (i) States; 

9 (ii) the relationship between the Fed10 eral Government and the States; or 

11 (iii) the distribution of power and re12 sponsibilities among the various levels of 

13 government. 

14 (B) CONSULTATION.— 

15 (i) IN GENERAL.—To be considered 

16 meaningful consultation described in section 

17 101(b) of the Federal Water Pollution Con18 trol Act (33 U.S.C. 1251(b)), before publica19 tion of a proposed rule under this section, 

20 consultation shall include a discussion of al21 ternative approaches with and a request for 

22 input and advice on the approaches from 

23 States and political subdivisions of States, 

24 including— 

25 (I) Governors; 

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1 (II) State departments with au2 thority over water supply and water 

3 quality; 

4 (III) State departments of agri5 culture; and 

6 (IV) local governments, including 

7 elected officials, local governmental en8 tities with authority over water sup9 ply, stormwater, waste water, flood10 plain management, and flood control, 

11 irrigation districts, and conservation 

12 districts. 

13 (ii) TOPICS.—The topics to be ad14 dressed in the consultation under this para15 graph should include— 

16 (I) categories of waters, in addi17 tion to those discussed in paragraphs 

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

19 should be subject to Federal jurisdic20 tion or should be subject solely to State 

21 or local regulation; 

22 (II) what is the role of States in 

23 the identification of waters subject to 

24 Federal jurisdiction; and 

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1 (III) whether channels in which 

2 water is present only during or for a 

3 short time after a precipitation event 

4 are correctly categorized as 

5 geomorphological features rather than 

6 hydrologic features. 

7 (2) REGULATORY FLEXIBILITY.—In proposing 

8 and promulgating a regulation pursuant to subsection 

9 (a), and regardless of whether the Secretary and the 

10 Administrator determine that the regulation would 

11 have a significant impact on a substantial number of 

12 small entities, the Secretary and the Administrator 

13 shall— 

14 (A) carry out the actions described in sec15 tions 603, 604, and 609 of title 5, United States 

16 Code; and 

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

18 consideration the costs of all programs under the 

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

20 1251 et seq.), regardless of whether the Secretary 

21 and the Administrator consider the costs of the 

22 proposed regulation to be direct or indirect. 

23 (3) UNFUNDED MANDATES.—In proposing and 

24 promulgating a regulation pursuant to subsection (a), 

25 the Secretary and the Administrator shall evaluate 

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1 the intergovernmental and private sector impacts of 

2 the regulation, in accordance with title II of the Un3 funded Mandates Reform Act of 1995 (2 U.S.C. 1531 

4 et seq.), regardless of whether the Secretary and the 

5 Administrator— 

6 (A) consider the impacts of the proposed 

7 regulation to be direct or indirect; or 

8 (B) determine that expenditures resulting 

9 from the proposed regulation would meet the 

10 monetary thresholds established in that Act (2 

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

12 (4) IMPROVING REGULATION AND REGULATORY

13 REVIEW.—In proposing and promulgating a regula14 tion pursuant to subsection (a), regardless of whether 

15 the Secretary and the Administrator consider the reg16 ulation to be a significant regulatory action or sig17 nificantly affect State, local, and tribal governments, 

18 the Secretary and the Administrator shall ensure that 

19 the regulation meets the requirements of— 

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

21 note; relating to regulatory planning and re22 view); and 

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

24 3821 (January 18, 2011)). 

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1 (5) IMPROVING PERFORMANCE OF FEDERAL PER2 MITTING AND REVIEW OF INFRASTRUCTURE

3 PROJECTS.—In proposing and promulgating a regu4 lation pursuant to subsection (a), the Secretary and 

5 the Administrator shall consider— 

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

7 note; relating to improving performance of Fed8 eral permitting and review of infrastructure 

9 projects); and 

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

11 decisions in the permitting and review of infra12 structure projects by the Federal Government. 

13 (6) REPORT.—Not later than the date that is 30 

14 days before the date of issuance of a proposed regula15 tion pursuant to subsection (a), the Secretary and the 

16 Administrator shall submit to the Committee on En17 vironment and Public Works of the Senate and the 

18 Committee on Transportation and Infrastructure of 

19 the House of Representatives a report that— 

20 (A) describes the means by which the pro21 posed regulation, if finalized, would achieve com22 pliance with— 

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

24 601 note; relating to regulatory planning 

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1 and review), including the means by 

2 which— 

3 (I) the regulation would impose 

4 the least burden on society, consistent 

5 with obtaining regulatory objectives, 

6 taking into account, among other 

7 things, and to the maximum extent 

8 practicable, the costs of cumulative reg9 ulations; and 

10 (II) the Secretary and the Admin11 istrator identified and assessed avail12 able alternatives to direct regulation; 

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

14 13132 (64 Fed. Reg. 43256 (August 4, 

15 1999)), which requires agencies to ‘‘act only 

16 with the greatest caution where State or 

17 local governments have identified uncertain18 ties regarding the constitutional or statu19 tory authority of the national government’’; 

20 (iii) section 3 of that Executive order 

21 (64 Fed. Reg. 43256 (August 4, 1999)), 

22 which requires agencies— 

23 (I) to strictly adhere to constitu24 tional principles and statutory author25 ity; 

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1 (II) to take action limiting the 

2 policymaking discretion of the States 

3 only in cases in which there exists con4 stitutional and statutory authority for 

5 the action; 

6 (III) to provide States with max7 imum administrative discretion prac8 ticable, without intrusive Federal over9 sight; and 

10 (IV) to rely on State policies to 

11 the maximum extent practicable; and 

12 (iv) Executive Order 13563 (76 Fed. 

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

14 the public participation requirements of sec15 tion 2 of that Executive order, which re16 quire an opportunity for public comment 

17 regarding all pertinent parts of the rule18 making docket, including relevant scientific 

19 and technical findings and seeking the 

20 views of those who are likely to be affected 

21 before issuing a notice of proposed rule22 making; 

23 (B) includes the Federalism summary im24 pact statement required by section 3 of Executive 

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

2 1999)); 

3 (C) includes the regulatory flexibility anal4 yses required under section 603 of title 5, United 

5 States Code, and the report of the review panel 

6 required under section 609 of that title; 

7 (D) describes the small government agency 

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

9 under sections 203 and 204 of the Unfunded 

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

11 1534); 

12 (E) describes the means by which the pro13 posed regulation is the least costly, most cost-ef14 fective, or least burdensome alternative, in ac15 cordance with section 205 of the Unfunded Man16 dates Reform Act of 1995 (2 U.S.C. 1535); 

17 (F) describes whether the Secretary and the 

18 Administrator will provide funding to State, 

19 local, and tribal governments to meet the inter20 governmental mandates imposed by the proposed 

21 regulation; and 

22 (G) describes how the proposed rule will 

23 achieve the goal stated in section 1 of Executive 

24 Order 13604 (5 U.S.C. 601 note; relating to im25 proving performance of Federal permitting and 

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1 review of infrastructure projects) that the time to 

2 make decisions in the permitting and review of 

3 infrastructure projects by the Federal Govern4 ment be reduced. 

5 (7) TIMING.—In carrying out this section, the 

6 Secretary and the Administrator shall use best ef7 forts— 

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

9 the consultation described in paragraph (2); 

10 (B) to provide a comment period on the re11 vised proposed rule of not less than 120 days; 

12 and 

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

14 December 31, 2016. 

15 SEC. 5. MEASURE OF FLOW. 

16 After providing public notice and an opportunity for 

17 comment, the Secretary shall establish quantifiable and sta18 tistically valid measures of the volume, duration, and fre19 quency of flow in streams in different geographic areas that 

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

21 streams in those geographic areas to flow to and degrade 

22 the water quality of a traditional navigable water. 

23 SEC. 6. REPORT TO CONGRESS. 

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

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

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

2 Comptroller General of the United States, after consultation 

3 with State, local, and tribal governments and other affected 

4 entities, shall— 

5 (1) review the jurisdictional determinations 

6 made during the applicable period by the Secretary 

7 and the Administrator; and 

8 (2) submit to Congress a report that describes— 

9 (A) the interpretations of the regulation 

10 by— 

11 (i) districts of the Corps of Engineers; 

12 and 

13 (ii) regional offices of the Environ14 mental Protection Agency; 

15 (B) whether those interpretations are con16 sistent; 

17 (C) if any inconsistency exists, the measures 

18 carried out by the Secretary and the Adminis19 trator to reduce the inconsistency or an expla20 nation of the geographic differences that make 

21 the inconsistency appropriate; and 

22 (D) the impacts of those interpretations on 

23 Federal permitting and review of infrastructure 

24 projects, and the goal stated in section 1 of Exec25 utive Order 13604 (5 U.S.C. 601 note; relating 

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52 

•S 1140 RS

1 to improving performance of Federal permitting 

2 and review of infrastructure projects) that the 

3 time to make decisions in the permitting and re4 view of infrastructure projects by the Federal 

5 Government be reduced. 

6 SEC. 7. EFFECT OF ACT. 

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

8 limits the authority of the Secretary or the Administrator— 

9 (1) to require a permit for any discharge of pol10 lutants to a navigable water under the Federal Water 

11 Pollution Control Act (33 U.S.C. 1251 et seq.); or 

12 (2) to take any enforcement action with respect 

13 to an unpermitted discharge under that Act. 

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

15 a determination regarding whether the transfer of water 

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

17 section 402 of the Federal Water Pollution Control Act (33 

18 U.S.C. 1342). 

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

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

21 to State jurisdiction under State law. 

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mstockstill on DSK4VPTVN1PROD with BILLS

Calendar No. 153 

114TH CONGRESS 

1ST SESSION S. 1140 

[Report No. 114–84] 

A BILL 

To require the Secretary of the Army and the Adand for other purposes. nition of the term ‘‘waters of the United States’’, Agency to propose a regulation revising the defi- ministrator of the Environmental Protection 

JULY 16, 2015 

Reported with an amendment 

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