II 

114TH CONGRESS 

1ST SESSION S. 1178 

To prohibit implementation of a proposed rule relating to the definition 

of the term ‘‘waters of the United States’’ under the Clean Water 

Act, or any substantially similar rule, until a Supplemental Scientific 

Review Panel and Ephemeral and Intermittent Streams Advisory Committee produce certain reports, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 30, 2015 

Mr. FLAKE (for himself, Mr. MCCAIN, and Mrs. FISCHER) introduced the following bill; which was read twice and referred to the Committee on Environment and Public Works 

A BILL 

To prohibit implementation of a proposed rule relating to 

the definition of the term ‘‘waters of the United States’’ 

under the Clean Water Act, or any substantially similar 

rule, until a Supplemental Scientific Review Panel and 

Ephemeral and Intermittent Streams Advisory Committee produce certain reports, 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 ‘‘Defending Rivers from 

5 Overreaching Policies Act of 2015’’. 


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1 SEC. 2. WATERS OF THE UNITED STATES. 

2 (a) FINDINGS.—Congress finds that— 

3 (1) according to the testimony of Assistant Sec4 retary of the Army for Civil Works Jo-Ellen Darcy 

5 at the House of Representatives and Senate Joint 

6 Hearing on State and Local Impacts of the Adminis7 tration’s Proposed Expansion of Waters Regulation 

8 on February 4, 2015, that proposed expansion of 

9 waters regulation ‘‘is based on science including a 

10 peer-reviewed report on connectivity and the rec11 ommendations of EPA’s Science Advisory Board’’; 

12 (2) the proposed rule entitled ‘‘Definition of 

13 ‘Waters of the United States’ Under the Clean 

14 Water Act’’ (79 Fed. Reg. 22188 (April 21, 2014)), 

15 was drafted before the science on which the pro16 posed rule was based had been reviewed by the Sci17 entific Advisory Board of the Environmental Protec18 tion Agency; 

19 (3) the final review and synthesis of the sci20 entific evidence was released in January 2015, 2 

21 months after the close of the public comment period 

22 for the proposed rule; 

23 (4) the review and synthesis of the scientific 

24 evidence found that ‘‘the degree and downstream ef25 fects of those connections [between parts of a water26 shed] vary spatially and temporally’’ and the 


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1 ‘‘connectivity of streams and wetlands to down2 stream waters occurs along a continuum’’; 

3 (5) the authors of the review and synthesis were 

4 unable to place the water bodies in the case studies 

5 ‘‘along a gradient of connectivity’’ and reported that 

6 ‘‘the research community has not reached a con7 sensus regarding the best methods or metrics to 

8 quantify or predict hydrologic or chemical 

9 connectivity’’; 

10 (6) without a scientific basis for evaluating the 

11 degree of connectivity between a particular stream 

12 and a traditionally navigable water, it is premature 

13 to use the scientific literature to define which con14 nections are ‘‘significant’’; 

15 (7) because the analysis of the relevant science 

16 was completed after the proposed rule described in 

17 paragraph (2) was drafted, and because the sci18 entific review failed to produce a method to assess 

19 the location of a particular water body on a ‘‘gra20 dient of connectivity’’, the resulting proposed rule is 

21 not effectively based on science; and 

22 (8) because the likely cost of implementation of 

23 that proposed rule will be greater than the 

24 $162,000,000 to $278,000,000 cited in the testi25 mony of Administrator of the Environmental ProtecVerDate Sep 11 2014 00:21 May 09, 2015 Jkt 049200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S1178.IS S1178

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1 tion Agency Gina McCarthy at the House of Rep2 resentatives and Senate joint hearing described in 

3 paragraph (1), the proposal will have significant im4 pacts on many sectors of the United States economy. 

5 (b) DEFINITIONS.—In this section: 

6 (1) ADMINISTRATOR.—The term ‘‘Adminis7 trator’’ means the Administrator of the Environ8 mental Protection Agency. 

9 (2) COMMISSION.—The term ‘‘Commission’’ 

10 means the Commission established under subsection 

11 (d)(1). 

12 (3) PANEL.—The term ‘‘Panel’’ means the 

13 Panel established under subsection (c)(1). 

14 (4) PROPOSED RULE.—The term ‘‘proposed 

15 rule’’ means the proposed rule entitled ‘‘Definition 

16 of ‘Waters of the United States’ Under the Clean 

17 Water Act’’ (79 Fed. Reg. 22188 (April 21, 2014)). 

18 (5) SECRETARY.—The term ‘‘Secretary’’ means 

19 the Secretary of the Army, acting through the Chief 

20 of Engineers. 

21 (c) SUPPLEMENTAL SCIENTIFIC REVIEW PANEL.— 

22 (1) ESTABLISHMENT.—The Secretary and the 

23 Administrator shall establish a panel, to be known 

24 as the ‘‘Supplemental Scientific Review Panel’’, to 

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1 ommendations regarding metrics, based on the best 

2 available scientific information, to quantify the de3 gree of connectivity between any body of water or 

4 wetland and a traditionally navigable water. 

5 (2) MEMBERSHIP.— 

6 (A) IN GENERAL.—The Panel shall be 

7 composed of 9 members, of whom— 

8 (i) 2 shall be appointed by the Major9 ity Leader of the Senate; 

10 (ii) 2 shall be appointed by the Minor11 ity Leader of the Senate; 

12 (iii) 2 shall be appointed by the 

13 Speaker of the House of Representatives; 

14 (iv) 2 shall be appointed by the Mi15 nority Leader of the House of Representa16 tives; and 

17 (v) 1 shall be appointed by the Presi18 dent of the National Academy of Engineer19 ing. 

20 (B) DATE OF APPOINTMENTS.—The ap21 pointment of a member of the Panel shall be 

22 made not later than 45 days after the date of 

23 enactment of this Act. 


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1 (C) QUALIFICATIONS.—Each member of 

2 the Panel shall be appointed from among indi3 viduals who possess— 

4 (i) expertise in a field of the biogeo5 sciences, such as hydrology, ecology, or 

6 geomorphology; 

7 (ii)(I) academic excellence, as deter8 mined in accordance with criteria including 

9 peer-reviewed journal publications and in10 vited academic conference presentations; or 

11 (II) practical expertise demonstrated 

12 by a record of employment as a profes13 sional with equivalent experience as an 

14 academic scientist; and 

15 (iii) experience regarding collecting 

16 and interpreting field measurements of 

17 streams and wetlands. 

18 (D) REQUIREMENT.—In appointing mem19 bers of the Panel, each appointing officer re20 ferred to in subparagraph (A) shall ensure that 

21 the Panel includes balanced representation of 

22 research expertise across all Level I ecoregions 

23 (as defined in section III of the 1997 publica24 tion of the Commission for Environmental Co25 operation publication entitled ‘‘Ecological ReVerDate Sep 11 2014 00:21 May 09, 2015 Jkt 049200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S1178.IS S1178

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1 gions of North America Toward a Common 

2 Perspective’’). 

3 (E) CHAIRPERSON.—At the first meeting 

4 of the Panel, a majority of the members of the 

5 Panel present and voting shall elect the Chair6 person of the Panel from among the members 

7 of the Panel. 

8 (F) VACANCIES.—A vacancy on the 

9 Panel— 

10 (i) shall not affect the powers of the 

11 Panel; and 

12 (ii) shall be filled in the same manner 

13 as the original appointment was made. 

14 (G) COMPENSATION.— 

15 (i) IN GENERAL.—A member of the 

16 Panel— 

17 (I) shall not be considered to be 

18 a Federal employee for any purpose 

19 by reason of service on the Panel; and 

20 (II) shall serve without pay. 

21 (ii) TRAVEL EXPENSES.—A member 

22 of the Panel shall be allowed travel ex23 penses, including per diem in lieu of sub24 sistence, at rates authorized for an em25 ployee of an agency under subchapter I of 


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1 chapter 57 of title 5, United States Code, 

2 while away from the home or regular place 

3 of business of the member in the perform4 ance of the duties of the Panel. 

5 (H) INITIAL MEETING.—The Panel shall 

6 hold the initial meeting of the Panel by not 

7 later than 90 days after the date of enactment 

8 of this Act. 

9 (I) MEETINGS.—The Panel shall meet at 

10 the call of a majority of the members of the 

11 Panel. 

12 (J) QUORUM.—Of the members of the 

13 Panel, 5 shall constitute a quorum. 

14 (K) RULES OF PROCEDURE.—The Panel 

15 may establish rules for the conduct of business 

16 of the Panel, subject to the condition that those 

17 rules shall not be inconsistent with this Act or 

18 any other applicable law. 

19 (3) DUTIES.—The Panel shall— 

20 (A) recommend metrics, based on the best 

21 available scientific information and considering 

22 the duration, magnitude, and frequency of 

23 flows, to quantify the degree of connectivity be24 tween any body of water or wetland and a tra25 ditionally navigable water; 


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1 (B) ensure the recommended metrics ac2 count for regional variability in all types of 

3 waterbodies and across all States, the District 

4 of Columbia, Puerto Rico, and other territories 

5 and possessions of the United States; and 

6 (C) not later than 1 year after the date on 

7 which the Panel first convenes, submit to the 

8 Secretary and Administrator a report describing 

9 each recommendation of the Panel to which not 

10 fewer than 6 members have agreed. 

11 (4) ADMINISTRATIVE SUPPORT.— 

12 (A) IN GENERAL.—The Secretary and the 

13 Administrator shall provide to the Panel such 

14 staff and administrative services as may be nec15 essary and appropriate for the Panel to perform 

16 the duties under paragraph (3). 

17 (B) DETAIL OF FEDERAL GOVERNMENT

18 EMPLOYEES.— 

19 (i) IN GENERAL.—An employee of the 

20 Federal Government may be detailed to the 

21 Panel without reimbursement. 

22 (ii) CIVIL SERVICE STATUS.—The de23 tail of the employee shall be without inter24 ruption or loss of civil service status or 

25 privilege. 


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1 (5) FUNDING.—The Secretary and the Admin2 istrator shall provide to the Panel such funds as the 

3 Secretary and the Administrator determine to be ap4 propriate from amounts made available to the Sec5 retary and the Administrator in appropriations Acts. 

6 (6) TERMINATION.—The Panel shall terminate 

7 on the earlier of— 

8 (A) the date that is 180 days after the 

9 date on which the report is submitted under 

10 paragraph (3)(C); and 

11 (B) the date that is 2 years after the date 

12 of enactment of this Act. 

13 (7) APPLICABILITY OF FEDERAL ADVISORY

14 COMMITTEE ACT.— 

15 (A) IN GENERAL.—The Federal Advisory 

16 Committee Act (5 U.S.C. App.) shall apply to 

17 the Panel. 

18 (B) PUBLIC MEETINGS AND RELEASE OF

19 PUBLIC VERSIONS OF REPORTS.—The Panel 

20 shall— 

21 (i) hold public hearings and meetings 

22 to the extent appropriate; and 

23 (ii) release public versions of the re24 port required under paragraph (3)(C). 


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1 (C) PUBLIC HEARINGS.—Any public hear2 ings of the Panel shall be conducted in a man3 ner consistent with the protection of informa4 tion provided to or developed for or by the 

5 Panel as required by any applicable law, regula6 tion, or Executive order. 

7 (d) EPHEMERAL AND INTERMITTENT STREAMS AD8 VISORY COMMISSION.— 

9 (1) ESTABLISHMENT.—The Secretary and the 

10 Administrator shall establish a commission, to be 

11 known as the ‘‘Ephemeral and Intermittent Streams 

12 Advisory Commission’’, to develop criteria to define 

13 whether a waterbody or wetland has a significant 

14 nexus to a traditional navigable water using the 

15 metrics developed by the Panel. 

16 (2) MEMBERSHIP.— 

17 (A) IN GENERAL.—The Commission shall 

18 be composed of 15 members, of whom— 

19 (i) 2 shall be appointed by the Major20 ity Leader of the Senate; 

21 (ii) 2 shall be appointed by the Minor22 ity Leader of the Senate; 

23 (iii) 2 shall be appointed by the 

24 Speaker of the House of Representatives; 


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1 (iv) 2 shall be appointed by the Mi2 nority Leader of the House of Representa3 tives; and 

4 (v) 7 shall be appointed jointly by the 

5 Administrator and the Secretary. 

6 (B) DATE OF APPOINTMENTS.—The ap7 pointment of a member of the Commission shall 

8 be made not later than the date that is 45 days 

9 after the date on which the report of the Panel 

10 is submitted under subsection (c)(3)(C). 

11 (C) QUALIFICATIONS.—Each member of 

12 the Commission shall be appointed from among 

13 individuals who possess— 

14 (i) experience regarding the permit15 ting process under the Federal Water Pol16 lution Control Act (33 U.S.C. 1251 et 

17 seq.); 

18 (ii) experience serving on the Panel; 

19 or 

20 (iii)(I) expertise in a field of the bio21 geosciences, such as hydrology, ecology, or 

22 geomorphology; and 

23 (II) academic excellence, as deter24 mined in accordance with criteria including 


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1 peer-reviewed journal publications and in2 vited academic conference presentations. 

3 (D) REQUIREMENTS.—In appointing mem4 bers of the Commission, each appointing officer 

5 referred to in subparagraph (A) shall ensure 

6 that the Commission includes— 

7 (i) balanced representation of research 

8 expertise across all Level I ecoregions (as 

9 defined in section III of the 1997 publica10 tion of the Commission for Environmental 

11 Cooperation publication entitled ‘‘Ecologi12 cal Regions of North America Toward a 

13 Common Perspective’’); and 

14 (ii) equal representation of the fol15 lowing groups: 

16 (I) Individuals who represent— 

17 (aa) the interests of builders 

18 and developers; 

19 (bb) agricultural interests; 

20 (cc) energy and mineral de21 velopment; or 

22 (dd) the commercial timber 

23 industry. 

24 (II) Individuals who represent— 


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1 (aa) nationally or regionally 

2 recognized environmental organi3 zations; 

4 (bb) sport, recreational, and 

5 commercial fishing interests; 

6 (cc) sportsman’s organiza7 tions; or 

8 (dd) municipal water supply 

9 interests. 

10 (III) Individuals who— 

11 (aa) hold a State, county, or 

12 local elected office; 

13 (bb) are employed by a 

14 State agency responsible for the 

15 management of the environment 

16 or natural interests; or 

17 (cc) represent the affected 

18 public at-large. 

19 (E) CHAIRPERSON.—At the first meeting 

20 of the Commission, a majority of the members 

21 of the Commission present and voting shall 

22 elect the Chairperson of the Commission from 

23 among the members of the Commission. 

24 (F) VACANCIES.—A vacancy on the Com25 mission— 


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1 (i) shall not affect the powers of the 

2 Commission; and 

3 (ii) shall be filled in the same manner 

4 as the original appointment was made. 

5 (G) COMPENSATION.— 

6 (i) IN GENERAL.—A member of the 

7 Commission— 

8 (I) shall not be considered to be 

9 a Federal employee for any purpose 

10 by reason of service on the Commis11 sion; and 

12 (II) shall serve without pay. 

13 (ii) TRAVEL EXPENSES.—A member 

14 of the Commission shall be allowed travel 

15 expenses, including per diem in lieu of sub16 sistence, at rates authorized for an em17 ployee of an agency under subchapter I of 

18 chapter 57 of title 5, United States Code, 

19 while away from the home or regular place 

20 of business of the member in the perform21 ance of the duties of the Commission. 

22 (H) INITIAL MEETING.—The Commission 

23 shall hold the initial meeting of the Commission 

24 not earlier than the date on which the report of 


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1 the Panel is submitted under subsection 

2 (c)(3)(C). 

3 (I) MEETINGS.—The Commission shall 

4 meet at the call of a majority of the members 

5 of the Commission. 

6 (J) QUORUM.—Of the members of the 

7 Commission, 9 shall constitute a quorum. 

8 (K) RULES OF PROCEDURE.—The Com9 mission may establish rules for the conduct of 

10 business of the Commission, subject to the con11 dition that those rules shall not be inconsistent 

12 with this Act or any other applicable law. 

13 (3) DUTIES.—The Commission shall— 

14 (A) develop criteria to define whether a 

15 waterbody or wetland has a significant nexus to 

16 traditional navigable water using the metrics 

17 developed by the Panel; 

18 (B) ensure those criteria account for re19 gional variability in all types of waterbodies and 

20 wetlands and across all States, the District of 

21 Columbia, Puerto Rico, and other territories 

22 and possessions of the United States; 

23 (C) not later than 180 days after the date 

24 on which the Commission holds the initial meet25 ing under paragraph (2)(H), submit to the SecVerDate Sep 11 2014 00:21 May 09, 2015 Jkt 049200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S1178.IS S1178

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1 retary and the Administrator a draft report 

2 that— 

3 (i) describes the criteria developed by 

4 the Commission; and 

5 (ii) is subject to a 60-day period for 

6 public comment; and 

7 (D) after addressing the comments re8 ceived during the 60-day comment period under 

9 subparagraph (C)(ii), submit to the Secretary 

10 and the Administrator a final report. 

11 (4) ADMINISTRATIVE SUPPORT.— 

12 (A) IN GENERAL.—The Secretary and the 

13 Administrator shall provide to the Commission 

14 such staff and administrative services as may 

15 be necessary and appropriate for the Commis16 sion to perform the duties under paragraph (3). 

17 (B) DETAIL OF FEDERAL GOVERNMENT

18 EMPLOYEES.— 

19 (i) IN GENERAL.—An employee of the 

20 Federal Government may be detailed to the 

21 Commission without reimbursement. 

22 (ii) CIVIL SERVICE STATUS.—The de23 tail of the employee shall be without inter24 ruption or loss of civil service status or 

25 privilege. 


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1 (5) FUNDING.—The Secretary and the Admin2 istrator shall provide to the Commission such funds 

3 as the Secretary and the Administrator determine to 

4 be appropriate from amounts made available to the 

5 Secretary and the Administrator in appropriations 

6 Acts. 

7 (6) TERMINATION.—The Commission shall ter8 minate on the earlier of— 

9 (A) the date that is 180 days after the 

10 date on which the final report is submitted 

11 under paragraph (3)(D); and 

12 (B) the date that is 3 years after the date 

13 of enactment of this Act. 

14 (7) APPLICABILITY OF FEDERAL ADVISORY

15 COMMITTEE ACT.— 

16 (A) IN GENERAL.—The Federal Advisory 

17 Committee Act (5 U.S.C. App.) shall apply to 

18 the Commission. 

19 (B) PUBLIC MEETINGS AND RELEASE OF

20 PUBLIC VERSIONS OF REPORTS.—The Commis21 sion shall— 

22 (i) hold public hearings and meetings 

23 to the extent appropriate; and 


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1 (ii) release public versions of the re2 ports required under subparagraphs (C) 

3 and (D) of paragraph (3). 

4 (C) PUBLIC HEARINGS.—Any public hear5 ings of the Commission shall be conducted in a 

6 manner consistent with the protection of infor7 mation provided to or developed for or by the 

8 Commission as required by any applicable law, 

9 regulation, or Executive order. 

10 (e) PROHIBITION.—The Secretary and the Adminis11 trator are prohibited from developing, finalizing, adopting, 

12 implementing, applying, administering, or enforcing the 

13 proposed rule or beginning the drafting of any substan14 tially similar rule until the date on which the Secretary 

15 and the Administrator receive a final report from the 

16 Commission under subsection (d)(3)(D). 

Æ 


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