I 

113TH CONGRESS 

2D SESSION H. R. 5077 

To amend the Federal Water Pollution Control Act to provide guidance 

and clarification regarding issuing new and renewal permits, and for 

other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 11, 2014 

Mrs. CAPITO introduced the following bill; which was referred to the 

Committee on Transportation and Infrastructure 

A BILL 

To amend the Federal Water Pollution Control Act to provide guidance and clarification regarding issuing new 

and renewal permits, and for other purposes. 

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 ‘‘Coal Jobs Protection 

5 Act of 2014’’. 

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1 SEC. 2. NATIONAL POLLUTANT DISCHARGE ELIMINATION 

2 SYSTEM. 

3 (a) APPLICABILITY OF GUIDANCE.—Section 402 of 

4 the Federal Water Pollution Control Act (33 U.S.C. 1342) 

5 is amended by adding at the end the following: 

6 ‘‘(s) APPLICABILITY OF GUIDANCE.— 

7 ‘‘(1) DEFINITIONS.—In this subsection: 

8 ‘‘(A) GUIDANCE.— 

9 ‘‘(i) IN GENERAL.—The term ‘guid10 ance’ means draft, interim, or final guid11 ance issued by the Administrator. 

12 ‘‘(ii) INCLUSIONS.—The term ‘guid13 ance’ includes— 

14 ‘‘(I) the interim guidance memo15 randum issued by the Administrator 

16 on April 1, 2010, entitled ‘Detailed 

17 Guidance: Improving EPA Review of 

18 Appalachian Surface Coal Mining Op19 erations under the Clean Water Act, 

20 National Environmental Policy Act, 

21 and the Environmental Justice Execu22 tive Order’; 

23 ‘‘(II) the proposed guidance de24 scribed in the notice of availability 

25 and request for comments entitled 

26 ‘EPA and Army Corps of Engineers 

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1 Guidance Regarding Identification of 

2 Waters Protected by the Clean Water 

3 Act’ (76 Fed. Reg. 24479 (May 2, 

4 2011)); 

5 ‘‘(III) the final guidance memo6 randum issued by the Administrator 

7 on July 21, 2011, entitled ‘Improving 

8 EPA Review of Appalachian Surface 

9 Coal Mining Operations Under the 

10 Clean Water Act, National Environ11 mental Policy Act, and the Environ12 mental Justice Executive Order’; 

13 ‘‘(IV) the proposed guidance sub14 mitted to the Office of Information 

15 and Regulatory Affairs of the Office 

16 of Management and Budget for regu17 latory review under Executive Order 

18 12866 entitled ‘Guidance on Identi19 fying Waters Protected By the Clean 

20 Water Act’ and dated February 17, 

21 2012 (referred to as ‘Clean Water 

22 Protection Guidance’, Regulatory 

23 Identifier Number (RIN) 2040–ZA11, 

24 received February 21, 2012); 

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1 ‘‘(V) any successor document to, 

2 or any substantially similar guidance 

3 based in whole or in part on, any of 

4 the foregoing guidance documents; 

5 and 

6 ‘‘(VI) any other document or 

7 paper proposed or issued by the Ad8 ministrator through any process other 

9 than the notice and comment rule10 making process. 

11 ‘‘(B) NEW PERMIT.—The term ‘new per12 mit’ means a permit covering discharges from a 

13 point source— 

14 ‘‘(i) that is issued under this section 

15 by a permitting authority; and 

16 ‘‘(ii) for which an application is— 

17 ‘‘(I) pending as of the date of en18 actment of this subsection; or 

19 ‘‘(II) filed on or after the date of 

20 enactment of this subsection. 

21 ‘‘(C) PERMITTING AUTHORITY.—The term 

22 ‘permitting authority’ means— 

23 ‘‘(i) the Administrator; or 

24 ‘‘(ii) a State, acting pursuant to a 

25 permit program under subsection (b). 

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1 ‘‘(2) PERMITS.— 

2 ‘‘(A) IN GENERAL.—Notwithstanding any 

3 other provision of law, in making a determina4 tion whether to approve a new permit or a re5 newed permit, the permitting authority— 

6 ‘‘(i) shall base the determination only 

7 on compliance with regulations issued by 

8 the Administrator or the permitting au9 thority; and 

10 ‘‘(ii) shall not base the determination 

11 on the extent of adherence of the applicant 

12 for the new permit or renewed permit to 

13 guidance. 

14 ‘‘(B) NEW PERMITS.—If the permitting 

15 authority does not approve or deny an applica16 tion for a new permit by the date that is 270 

17 days after the date of receipt of a substantially 

18 complete application for the new permit, the ap19 plicant may discharge as if the application were 

20 approved in accordance with Federal law for 

21 the period of time for which a similar permit 

22 would be approved. 

23 ‘‘(C) SUBSTANTIAL COMPLETENESS.—In 

24 determining whether an application for a new 

25 permit or a renewed permit received under this 

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1 paragraph is substantially complete, the permit2 ting authority shall use standards for deter3 mining substantial completeness of similar per4 mits for similar facilities submitted in fiscal 

5 year 2007.’’. 

6 (b) STATE PERMIT PROGRAMS.— 

7 (1) IN GENERAL.—Section 402 of the Federal 

8 Water Pollution Control Act (33 U.S.C. 1342) is 

9 amended by striking subsection (b) and inserting the 

10 following: 

11 ‘‘(b) STATE PERMIT PROGRAMS.— 

12 ‘‘(1) IN GENERAL.—At any time after the pro13 mulgation of the guidelines required by section 

14 304(i)(2), the Governor of each State desiring to ad15 minister a permit program for discharges into navi16 gable waters within the jurisdiction of the State may 

17 submit to the Administrator— 

18 ‘‘(A) a full and complete description of the 

19 program the State proposes to establish and ad20 minister under State law or under an interstate 

21 compact; and 

22 ‘‘(B) a statement from the attorney gen23 eral (or the attorney for those State water pol24 lution control agencies that have independent 

25 legal counsel), or from the chief legal officer in 

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1 the case of an interstate agency, that the laws 

2 of the State, or the interstate compact, as ap3 plicable, provide adequate authority to carry out 

4 the described program. 

5 ‘‘(2) APPROVAL.—The Administrator shall ap6 prove each program for which a description is sub7 mitted under paragraph (1) unless the Adminis8 trator determines that adequate authority does not 

9 exist— 

10 ‘‘(A) to issue permits that— 

11 ‘‘(i) apply, and ensure compliance 

12 with, any applicable requirements of sec13 tions 301, 302, 306, 307, and 403; 

14 ‘‘(ii) are for fixed terms not exceeding 

15 5 years; 

16 ‘‘(iii) can be terminated or modified 

17 for cause, including— 

18 ‘‘(I) a violation of any condition 

19 of the permit; 

20 ‘‘(II) obtaining a permit by mis21 representation or failure to disclose 

22 fully all relevant facts; and 

23 ‘‘(III) a change in any condition 

24 that requires either a temporary or 

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1 permanent reduction or elimination of 

2 the permitted discharge; and 

3 ‘‘(iv) control the disposal of pollutants 

4 into wells; 

5 ‘‘(B)(i) to issue permits that apply, and 

6 ensure compliance with, all applicable require7 ments of section 308; or 

8 ‘‘(ii) to inspect, monitor, enter, and require 

9 reports to at least the same extent as required 

10 in section 308; 

11 ‘‘(C) to ensure that the public, and any 

12 other State the waters of which may be af13 fected, receives notice of each application for a 

14 permit and an opportunity for a public hearing 

15 before a ruling on each application; 

16 ‘‘(D) to ensure that the Administrator re17 ceives notice and a copy of each application for 

18 a permit; 

19 ‘‘(E) to ensure that any State (other than 

20 the permitting State), the waters of which may 

21 be affected by the issuance of a permit may 

22 submit written recommendations to the permit23 ting State and the Administrator with respect 

24 to any permit application and, if any part of 

25 the written recommendations are not accepted 

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1 by the permitting State, that the permitting 

2 State will notify the affected State and the Ad3 ministrator in writing of the failure of the per4 mitting State to accept the recommendations, 

5 including the reasons for not accepting the rec6 ommendations; 

7 ‘‘(F) to ensure that no permit will be 

8 issued if, in the judgment of the Secretary of 

9 the Army acting through the Chief of Engi10 neers, after consultation with the Secretary of 

11 the department in which the Coast Guard is op12 erating, anchorage and navigation of any of the 

13 navigable waters would be substantially im14 paired by the issuance of the permit; 

15 ‘‘(G) to abate violations of the permit or 

16 the permit program, including civil and criminal 

17 penalties and other means of enforcement; 

18 ‘‘(H) to ensure that any permit for a dis19 charge from a publicly owned treatment works 

20 includes conditions to require the identification 

21 in terms of character and volume of pollutants 

22 of any significant source introducing pollutants 

23 subject to pretreatment standards under section 

24 307(b) into the treatment works and a program 

25 to ensure compliance with those pretreatment 

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1 standards by each source, in addition to ade2 quate notice, which shall include information on 

3 the quality and quantity of effluent to be intro4 duced into the treatment works and any antici5 pated impact of the change in the quantity or 

6 quality of effluent to be discharged from the 

7 publicly owned treatment works, to the permit8 ting agency of— 

9 ‘‘(i) new introductions into the treat10 ment works of pollutants from any source 

11 that would be a new source as defined in 

12 section 306 if the source were discharging 

13 pollutants; 

14 ‘‘(ii) new introductions of pollutants 

15 into the treatment works from a source 

16 that would be subject to section 301 if the 

17 source were discharging those pollutants; 

18 or 

19 ‘‘(iii) a substantial change in volume 

20 or character of pollutants being introduced 

21 into the treatment works by a source intro22 ducing pollutants into the treatment works 

23 at the time of issuance of the permit; and 

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1 ‘‘(I) to ensure that any industrial user of 

2 any publicly owned treatment works will comply 

3 with sections 204(b), 307, and 308.’’. 

4 (2) CONFORMING AMENDMENTS.— 

5 (A) FEDERAL ENFORCEMENT.—Section 

6 309 of the Federal Water Pollution Control Act 

7 (33 U.S.C. 1319) is amended— 

8 (i) in subsection (c)— 

9 (I) in paragraph (1)(A), by strik10 ing ‘‘402(b)(8)’’ and inserting 

11 ‘‘402(b)(2)(H)’’; and 

12 (II) in paragraph (2)(A), by 

13 striking ‘‘402(b)(8)’’ and inserting 

14 ‘‘402(b)(2)(H)’’; and 

15 (ii) in subsection (d), in the first sen16 tence, by striking ‘‘402(b)(8)’’ and insert17 ing ‘‘402(b)(2)(H)’’. 

18 (B) ADDITIONAL PRETREATMENT.—Sec19 tion 402(m) of the Federal Water Pollution 

20 Control Act (33 U.S.C. 1342(m)) is amended in 

21 the first sentence by striking ‘‘subsection (b)(8) 

22 of this section’’ and inserting ‘‘subsection 

23 (b)(2)(H)’’. 

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

2 (a) IN GENERAL.—Section 404(a) of the Federal 

3 Water Pollution Control Act (33 U.S.C. 1344(a)) is 

4 amended— 

5 (1) by striking ‘‘(a) The Secretary may issue’’ 

6 and inserting the following: 

7 ‘‘(a) PERMITS.— 

8 ‘‘(1) IN GENERAL.—The Secretary may issue’’; 

9 and 

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

11 ‘‘(2) DEADLINE FOR APPROVAL.— 

12 ‘‘(A) PERMIT APPLICATIONS.— 

13 ‘‘(i) IN GENERAL.—Except as pro14 vided in clause (ii), if an environmental as15 sessment or environmental impact state16 ment, as appropriate, is required under the 

17 National Environmental Policy Act of 

18 1969 (42 U.S.C. 4321 et seq.), the Sec19 retary shall— 

20 ‘‘(I) ensure that the environ21 mental review process begins not later 

22 than 90 days after the date on which 

23 the Secretary receives a permit appli24 cation; and 

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1 ‘‘(II) approve or deny an applica2 tion for a permit under this sub3 section not later than— 

4 ‘‘(aa) if an agency carries 

5 out an environmental assessment 

6 that leads to a finding of no sig7 nificant impact, the date on 

8 which the finding of no signifi9 cant impact is issued; or 

10 ‘‘(bb) if an agency carries 

11 out an environmental assessment 

12 that leads to a record of decision, 

13 15 days after the date on which 

14 the record of decision on the en15 vironmental impact statement is 

16 issued. 

17 ‘‘(ii) PROCESSES.—Notwithstanding 

18 clause (i), regardless of whether the Sec19 retary has commenced an environmental 

20 assessment or environmental impact state21 ment by the date described in clause (i)(I), 

22 the following deadlines shall apply: 

23 ‘‘(I) An environmental assess24 ment carried out under the National 

25 Environmental Policy Act of 1969 (42 

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1 U.S.C. 4321 et seq.) shall be com2 pleted not later than 1 year after the 

3 deadline for commencing the environ4 mental review process under clause 

5 (i)(I). 

6 ‘‘(II) An environmental impact 

7 statement carried out under the Na8 tional Environmental Policy Act of 

9 1969 (42 U.S.C. 4321 et seq.) shall 

10 be completed not later than 2 years 

11 after the deadline for commencing the 

12 environmental review process under 

13 clause (i)(I). 

14 ‘‘(B) FAILURE TO ACT.—If the Secretary 

15 fails to act by the deadline specified in clause 

16 (i) or (ii) of subparagraph (A)— 

17 ‘‘(i) the application, and the permit 

18 requested in the application, shall be con19 sidered to be approved; 

20 ‘‘(ii) the Secretary shall issue a permit 

21 to the applicant; and 

22 ‘‘(iii) the permit shall not be subject 

23 to judicial review.’’. 

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1 (b) STATE PERMITTING PROGRAMS.—Section 404(c) 

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

3 1344(c)) is amended— 

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

5 and 

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

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

8 the State in which the discharge originates or will origi9 nate does not concur with the Administrator’s determina10 tion that the discharge will result in an unacceptable ad11 verse effect as described in paragraph (1).’’. 

12 (c) STATE PROGRAMS.—The first sentence of section 

13 404(g)(1) of such Act (33 U.S.C. 1344(g)(1)) is amended 

14 by striking ‘‘for the discharge’’ and inserting ‘‘for some 

15 or all of the discharges’’. 

16 (d) DEADLINE FOR AGENCY COMMENTS.—Section 

17 404 of such Act (33 U.S.C. 1344) is amended— 

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

19 day’’ and inserting ‘‘30th day (or the 60th day if ad20 ditional time is requested)’’; and 

21 (2) in subsection (q)— 

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

23 ‘‘(q)(1)’’; and 

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

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1 ‘‘(2) The Administrator and the head of a depart2 ment or agency referred to in paragraph (1) shall each 

3 submit any comments with respect to an application for 

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

5 30th day (or the 60th day if additional time is requested) 

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

7 under that subsection.’’. 

8 SEC. 4. IMPACTS OF EPA REGULATORY ACTIVITY ON EM9 PLOYMENT AND ECONOMIC ACTIVITY. 

10 (a) ANALYSIS OF IMPACTS OF ACTIONS ON EMPLOY11 MENT AND ECONOMIC ACTIVITY.— 

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

13 the Administrator shall analyze the impact, 

14 disaggregated by State, of the covered action on em15 ployment levels and economic activity, including esti16 mated job losses and decreased economic activity. 

17 (2) ECONOMIC MODELS.— 

18 (A) IN GENERAL.—In carrying out para19 graph (1), the Administrator shall utilize the 

20 best available economic models. 

21 (B) ANNUAL GAO REPORT.—Not later 

22 than December 31 of each year, the Comp23 troller General of the United States shall sub24 mit to Congress a report on the economic modmstockstill on DSK4VPTVN1PROD with BILLS

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1 els used by the Administrator to carry out this 

2 subsection. 

3 (3) AVAILABILITY OF INFORMATION.—With re4 spect to any covered action, the Administrator 

5 shall— 

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

7 as a link on the main page of the public Inter8 net Web site of the Environmental Protection 

9 Agency; and 

10 (B) request that the Governor of any State 

11 experiencing more than a de minimis negative 

12 impact post such analysis in the Capitol of such 

13 State. 

14 (b) PUBLIC HEARINGS.— 

15 (1) IN GENERAL.—If the Administrator con16 cludes under subsection (a)(1) that a covered action 

17 will have more than a de minimis negative impact on 

18 employment levels or economic activity in a State, 

19 the Administrator shall hold a public hearing in the 

20 State at least 30 days prior to the effective date of 

21 the covered action. 

22 (2) TIME, LOCATION, AND SELECTION.—A pub23 lic hearing required under paragraph (1) shall be 

24 held at a convenient time and location for impacted 

25 residents. In selecting a location for such a public 

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1 hearing, the Administrator shall give priority to loca2 tions in the State that will experience the greatest 

3 number of job losses. 

4 (c) NOTIFICATION.—If the Administrator concludes 

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

6 more than a de minimis negative impact on employment 

7 levels or economic activity in a State, the Administrator 

8 shall give notice of such impact to the State’s congres9 sional delegation, Governor, and legislature at least 45 

10 days before the effective date of the covered action. 

11 (d) DEFINITIONS.—In this section, the following defi12 nitions apply: 

13 (1) ADMINISTRATOR.—The term ‘‘Adminis14 trator’’ means the Administrator of the Environ15 mental Protection Agency. 

16 (2) COVERED ACTION.—The term ‘‘covered ac17 tion’’ means any of the following actions taken by 

18 the Administrator under the Federal Water Pollu19 tion Control Act (33 U.S.C. 1201 et seq.): 

20 (A) Issuing a regulation, policy statement, 

21 guidance, response to a petition, or other re22 quirement. 

23 (B) Implementing a new or substantially 

24 altered program. 

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1 (3) MORE THAN A DE MINIMIS NEGATIVE IM2 PACT.—The term ‘‘more than a de minimis negative 

3 impact’’ means either of the following: 

4 (A) With respect to employment levels, a 

5 loss of more than 100 jobs. Any offsetting job 

6 gains that result from the hypothetical creation 

7 of new jobs through new technologies or govern8 ment employment may not be used in the job 

9 loss calculation. 

10 (B) With respect to economic activity, a 

11 decrease in economic activity of more than 

12 $1,000,000 over any calendar year. Any offset13 ting economic activity that results from the hy14 pothetical creation of new economic activity 

15 through new technologies or government em16 ployment may not be used in the economic ac17 tivity calculation. 

18 SEC. 5. STATE AUTHORITY TO IDENTIFY WATERS WITHIN 

19 ITS BOUNDARIES. 

20 Section 303 of the Federal Water Pollution Control 

21 Act (33 U.S.C. 1313) is amended by striking subsection 

22 (d)(2) and inserting the following: 

23 ‘‘(2)(A) Each State shall submit to the Administrator 

24 from time to time, with the first such submission not later 

25 than 180 days after the date of publication of the first 

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1 identification of pollutants under section 304(a)(2)(D), 

2 the waters identified and the loads established under para3 graphs (1)(A), (1)(B), (1)(C), and (1)(D) of this sub4 section. The Administrator shall approve the State identi5 fication and load or announce his disagreement with the 

6 State identification and load not later than 30 days after 

7 the date of submission, and if— 

8 ‘‘(i) the Administrator approves the identifica9 tion and load submitted by the State in accordance 

10 with this subsection, such State shall incorporate 

11 them into its current plan under subsection (e); and 

12 ‘‘(ii) the Administrator announces his disagree13 ment with the identification and load submitted by 

14 the State in accordance with this subsection, the Ad15 ministrator shall submit, not later than 30 days 

16 after the date on which such announcement is made, 

17 to the State his written recommendation of those ad18 ditional waters that he identifies and such loads for 

19 such waters as he believes are necessary to imple20 ment the water quality standards applicable to such 

21 waters. 

22 ‘‘(B) Upon receipt of the Administrator’s rec23 ommendation the State shall within 30 days either— 

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1 ‘‘(i) disregard the Administrator’s recommenda2 tion in full and incorporate its own identification 

3 and load into its current plan under subsection (e); 

4 ‘‘(ii) accept the Administrator’s recommenda5 tion in full and incorporate its identification and 

6 load as amended by the Administrator’s rec7 ommendation into its current plan under subsection 

8 (e); or 

9 ‘‘(iii) accept the Administrator’s recommenda10 tion in part, identifying certain additional waters 

11 and certain additional loads proposed by the Admin12 istrator to be added to such State’s identification 

13 and load and incorporate such State’s identification 

14 and load as amended into its current plan under 

15 subsection (e). 

16 ‘‘(C)(i) If the Administrator fails to either approve 

17 the State identification and load or announce his disagree18 ment with the State identification and load within the time 

19 specified in this subsection, then such State’s identifica20 tion and load is deemed approved and such State shall 

21 incorporate the identification and load that it submitted 

22 into its current plan under subsection (e). 

23 ‘‘(ii) If the Administrator announces his disagree24 ment with the State identification and load but fails to 

25 submit his written recommendation to the State within 30 

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1 days as required by subparagraph (A)(ii) then such 

2 State’s identification and load is deemed approved and 

3 such State shall incorporate the identification and load 

4 that it submitted into its current plan under subsection 

5 (e). 

6 ‘‘(D) This paragraph shall apply to any decision 

7 made by the Administrator under this subsection issued 

8 on or after March 1, 2013.’’. 

9 SEC. 6. DEFINITION OF FILL MATERIAL. 

10 Section 502 of the Federal Water Pollution Control 

11 Act (33 U.S.C. 1362) is amended by adding at the end 

12 the following: 

13 ‘‘(27) FILL MATERIAL.— 

14 ‘‘(A) IN GENERAL.—The term ‘fill mate15 rial’ means any material placed in waters of the 

16 United States where the material has the effect 

17 of— 

18 ‘‘(i) replacing any portion of a water 

19 of the United States with dry land; or 

20 ‘‘(ii) changing the bottom elevation of 

21 any portion of a water of the United 

22 States. 

23 ‘‘(B) INCLUSIONS.—The term ‘fill mate24 rial’ includes— 

25 ‘‘(i) rock; 

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1 ‘‘(ii) sand; 

2 ‘‘(iii) soil; 

3 ‘‘(iv) clay; 

4 ‘‘(v) plastics; 

5 ‘‘(vi) construction debris; 

6 ‘‘(vii) wood chips; 

7 ‘‘(viii) overburden from mining or 

8 other excavation activities; and 

9 ‘‘(ix) materials used to create any 

10 structure or infrastructure in the waters of 

11 the United States. 

12 ‘‘(C) EXCLUSIONS.—The term ‘fill mate13 rial’ does not apply to trash or garbage.’’. 

14 SEC. 7. APPLICABILITY OF AMENDMENTS. 

15 Except as otherwise specifically provided, the amend16 ments made by this Act shall apply to actions taken on 

17 or after the date of enactment of this Act, including ac18 tions taken with respect to permit applications pending, 

19 or revised or new standards in the process of being pro20 mulgated, on such date of enactment. 

Æ 

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