II 

112TH CONGRESS 

2D SESSION S. 3558 

To amend the Federal Water Pollution Control Act to preserve the authority 

of each State to make determinations relating to the State’s water 

quality standards, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

SEPTEMBER 19, 2012 

Mr. MANCHIN (for himself and Mr. TOOMEY) introduced the following bill; 

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

Public Works 

A BILL 

To amend the Federal Water Pollution Control Act to preserve the authority of each State to make determinations 

relating to the State’s water quality standards, 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 ‘‘Clean Water Coopera5 tive Federalism Act of 2011’’. 


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1 SEC. 2. STATE WATER QUALITY STANDARDS. 

2 (a) STATE WATER QUALITY STANDARDS.—Section 

3 303(c)(4) of the Federal Water Pollution Control Act (33 

4 U.S.C. 1313(c)(4)) is amended— 

5 (1) by redesignating subparagraphs (A) and 

6 (B) as clauses (i) and (ii), respectively; 

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

8 (3) by striking ‘‘The Administrator shall pro9 mulgate’’ and inserting the following: 

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

11 (4) by adding at the end the following: 

12 ‘‘(C) Notwithstanding subparagraph (A)(ii), the Ad13 ministrator may not promulgate a revised or new standard 

14 for a pollutant in any case in which the State has sub15 mitted to the Administrator and the Administrator has ap16 proved a water quality standard for that pollutant, unless 

17 the State concurs with the Administrator’s determination 

18 that the revised or new standard is necessary to meet the 

19 requirements of this Act.’’. 

20 (b) FEDERAL LICENSES AND PERMITS.—Section 

21 401(a) of such Act (33 U.S.C. 1341(a)) is amended by 

22 adding at the end the following: 

23 ‘‘(7) With respect to any discharge, if a State or 

24 interstate agency having jurisdiction over the navigable 

25 waters at the point where the discharge originates or will 

26 originate determines under paragraph (1) that the disVerDate Mar 15 2010 03:10 Sep 22, 2012 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S3558.IS S3558

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1 charge will comply with the applicable provisions of sec2 tions 301, 302, 303, 306, and 307, the Administrator may 

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

4 (c) STATE NPDES PERMIT PROGRAMS.—Section 

5 402(c) of such Act (42 U.S.C. 1342(c)) is amended by 

6 adding at the end the following: 

7 ‘‘(5) LIMITATION ON AUTHORITY OF ADMINIS8 TRATOR TO WITHDRAW APPROVAL OF STATE PRO9 GRAMS.—The Administrator may not withdraw ap10 proval of a State program under paragraph (3) or 

11 (4), or limit Federal financial assistance for the 

12 State program, on the basis that the Administrator 

13 disagrees with the State regarding— 

14 ‘‘(A) the implementation of any water 

15 quality standard that has been adopted by the 

16 State and approved by the Administrator under 

17 section 303(c); or 

18 ‘‘(B) the implementation of any Federal 

19 guidance that directs the interpretation of the 

20 State’s water quality standards.’’. 

21 (d) LIMITATION ON AUTHORITY OF ADMINISTRATOR

22 TO OBJECT TO INDIVIDUAL PERMITS.—Section 402(d) of 

23 such Act (33 U.S.C. 1342(d)) is amended by adding at 

24 the end the following: 


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1 ‘‘(5) The Administrator may not object under para2 graph (2) to the issuance of a permit by a State on the 

3 basis of— 

4 ‘‘(A) the Administrator’s interpretation of a 

5 water quality standard that has been adopted by the 

6 State and approved by the Administrator under sec7 tion 303(c); or 

8 ‘‘(B) the implementation of any Federal guid9 ance that directs the interpretation of the State’s 

10 water quality standards.’’. 

11 SEC. 3. PERMITS FOR DREDGED OR FILL MATERIAL. 

12 (a) AUTHORITY OF EPA ADMINISTRATOR.—Section 

13 404(c) of the Federal Water Pollution Control Act (33 

14 U.S.C. 1344(c)) is amended— 

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

16 and 

17 (2) by adding at the end the following: 

18 ‘‘(2) Paragraph (1) shall not apply to any permit if 

19 the State in which the discharge originates or will origi20 nate does not concur with the Administrator’s determina21 tion that the discharge will result in an unacceptable ad22 verse effect as described in paragraph (1).’’. 

23 (b) STATE PERMIT PROGRAMS.—The first sentence 

24 of section 404(g)(1) of such Act (33 U.S.C. 1344(g)(1)) 

25 is amended by striking ‘‘The Governor of any State desirVerDate Mar 15 2010 03:10 Sep 22, 2012 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S3558.IS S3558

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1 ing to administer its own individual and general permit 

2 program for the discharge’’ and inserting ‘‘The Governor 

3 of any State desiring to administer its own individual and 

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

5 SEC. 4. DEADLINES FOR AGENCY COMMENTS. 

6 Section 404 of the Federal Water Pollution Control 

7 Act (33 U.S.C. 1344) is amended— 

8 (1) in subsection (m) by striking ‘‘ninetieth 

9 day’’ and inserting ‘‘30th day (or the 60th day if ad10 ditional time is requested)’’; and 

11 (2) in subsection (q)— 

12 (A) by striking ‘‘(q)’’ and inserting 

13 ‘‘(q)(1)’’; and 

14 (B) by adding at the end the following: 

15 ‘‘(2) The Administrator and the head of a depart16 ment or agency referred to in paragraph (1) shall each 

17 submit any comments with respect to an application for 

18 a permit under subsection (a) or (e) not later than the 

19 30th day (or the 60th day if additional time is requested) 

20 after the date of receipt of an application for a permit 

21 under that subsection.’’. 

22 SEC. 5. APPLICABILITY OF AMENDMENTS. 

23 The amendments made by this Act shall apply to ac24 tions taken on or after the date of enactment of this Act, 

25 including actions taken with respect to permit applications 


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1 that are pending or revised or new standards that are 

2 being promulgated as of such date of enactment. 

3 SEC. 6. REPORTING ON HARMFUL POLLUTANTS. 

4 Not later than 1 year after the date of enactment 

5 of this Act, and annually thereafter, the Administrator of 

6 the Environmental Protection Agency shall submit to Con7 gress a report on any increase or reduction in waterborne 

8 pathogenic microorganisms (including protozoa, viruses, 

9 bacteria, and parasites), toxic chemicals, or toxic metals 

10 (such as lead and mercury) in waters regulated by a State 

11 under the provisions of this Act, including the amend12 ments made by this Act. 

13 SEC. 7. PIPELINES CROSSING STREAMBEDS. 

14 None of the provisions of this Act, including the 

15 amendments made by this Act, shall be construed to limit 

16 the authority of the Administrator of the Environmental 

17 Protection Agency, as in effect on the day before the date 

18 of enactment of this Act, to regulate a pipeline that 

19 crosses a streambed. 

20 SEC. 8. IMPACTS OF EPA REGULATORY ACTIVITY ON EM21 PLOYMENT AND ECONOMIC ACTIVITY. 

22 (a) ANALYSIS OF IMPACTS OF ACTIONS ON EMPLOY23 MENT AND ECONOMIC ACTIVITY.— 

24 (1) ANALYSIS.—Before taking a covered action, 

25 the Administrator shall analyze the impact, 


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1 disaggregated by State, of the covered action on em2 ployment levels and economic activity, including esti3 mated job losses and decreased economic activity. 

4 (2) ECONOMIC MODELS.— 

5 (A) IN GENERAL.—In carrying out para6 graph (1), the Administrator shall utilize the 

7 best available economic models. 

8 (B) ANNUAL GAO REPORT.—Not later 

9 than December 31st of each year, the Comp10 troller General of the United States shall sub11 mit to Congress a report on the economic mod12 els used by the Administrator to carry out this 

13 subsection. 

14 (3) AVAILABILITY OF INFORMATION.—With re15 spect to any covered action, the Administrator 

16 shall— 

17 (A) post the analysis under paragraph (1) 

18 as a link on the main page of the public Inter19 net Web site of the Environmental Protection 

20 Agency; and 

21 (B) request that the Governor of any State 

22 experiencing more than a de minimis negative 

23 impact post such analysis in the Capitol of such 

24 State. 

25 (b) PUBLIC HEARINGS.— 


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1 (1) IN GENERAL.—If the Administrator con2 cludes under subsection (a)(1) that a covered action 

3 will have more than a de minimis negative impact on 

4 employment levels or economic activity in a State, 

5 the Administrator shall hold a public hearing in each 

6 such State at least 30 days prior to the effective 

7 date of the covered action. 

8 (2) TIME, LOCATION, AND SELECTION.—A pub9 lic hearing required under paragraph (1) shall be 

10 held at a convenient time and location for impacted 

11 residents. In selecting a location for such a public 

12 hearing, the Administrator shall give priority to loca13 tions in the State that will experience the greatest 

14 number of job losses. 

15 (c) NOTIFICATION.—If the Administrator concludes 

16 under subsection (a)(1) that a covered action will have 

17 more than a de minimis negative impact on employment 

18 levels or economic activity in any State, the Administrator 

19 shall give notice of such impact to the State’s Congres20 sional delegation, Governor, and Legislature at least 45 

21 days before the effective date of the covered action. 

22 (d) DEFINITIONS.—In this section, the following defi23 nitions apply: 


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1 (1) ADMINISTRATOR.—The term ‘‘Adminis2 trator’’ means the Administrator of the Environ3 mental Protection Agency. 

4 (2) COVERED ACTION.—The term ‘‘covered ac5 tion’’ means any of the following actions taken by 

6 the Administrator under the Federal Water Pollu7 tion Control Act (33 U.S.C. 1201 et seq.): 

8 (A) Issuing a regulation, policy statement, 

9 guidance, response to a petition, or other re10 quirement. 

11 (B) Implementing a new or substantially 

12 altered program. 

13 (3) MORE THAN A DE MINIMIS NEGATIVE IM14 PACT.—The term ‘‘more than a de minimis negative 

15 impact’’ means the following: 

16 (A) With respect to employment levels, a 

17 loss of more than 100 jobs. Any offsetting job 

18 gains that result from the hypothetical creation 

19 of new jobs through new technologies or govern20 ment employment may not be used in the job 

21 loss calculation. 

22 (B) With respect to economic activity, a 

23 decrease in economic activity of more than 

24 $1,000,000 over any calendar year. Any offset25 ting economic activity that results from the hyVerDate Mar 15 2010 03:10 Sep 22, 2012 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3558.IS S3558

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1 pothetical creation of new economic activity 

2 through new technologies or government em3 ployment may not be used in the economic ac4 tivity calculation. 

Æ 


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