I 

113TH CONGRESS 

2D SESSION H. R. 5078 

To preserve existing rights and responsibilities with respect to waters of 

the United States, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JULY 11, 2014 

Mr. SOUTHERLAND (for himself, Mr. SHUSTER, Mr. RAHALL, Mrs. CAPITO, 

Mr. PETERSON, Mr. CRAWFORD, Mr. MATHESON, Mr. GIBBS, Mr. 

SCHRADER, Mr. RIBBLE, Mr. ENYART, Mr. MULLIN, Mr. JOLLY, and Mr. 

LUCAS) introduced the following bill; which was referred to the Committee on Transportation and Infrastructure 

A BILL 

To preserve existing rights and responsibilities with respect 

to 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 ‘‘Waters of the United 

5 States Regulatory Overreach Protection Act of 2014’’. 

6 SEC. 2. RULES AND GUIDANCE. 

7 (a) IDENTIFICATION OF WATERS PROTECTED BY

8 THE CLEAN WATER ACT.— 

mstockstill on DSK4VPTVN1PROD with BILLS

2 

•HR 5078 IH

1 (1) IN GENERAL.—The Secretary and the Ad2 ministrator are prohibited from— 

3 (A) developing, finalizing, adopting, imple4 menting, applying, administering, or enforc5 ing— 

6 (i) the proposed rule described in the 

7 notice of proposed rule published in the 

8 Federal Register entitled ‘‘Definition of 

9 ‘Waters of the United States’ Under the 

10 Clean Water Act’’ (79 Fed. Reg. 22188 

11 (April 21, 2014)); or 

12 (ii) the proposed guidance submitted 

13 to the Office of Information and Regu14 latory Affairs of the Office of Management 

15 and Budget for regulatory review under 

16 Executive Order 12866, entitled ‘‘Guidance 

17 on Identifying Waters Protected By the 

18 Clean Water Act’’ and dated February 17, 

19 2012 (referred to as ‘‘Clean Water Protec20 tion Guidance’’, Regulatory Identifier 

21 Number (RIN) 2040–ZA11, received Feb22 ruary 21, 2012); or 

23 (B) using the proposed rule or proposed 

24 guidance described in subparagraph (A), any 

25 successor document, or any substantially simimstockstill on DSK4VPTVN1PROD with BILLS

3 

•HR 5078 IH

1 lar proposed rule or guidance, as the basis for 

2 any rulemaking or decision regarding the scope 

3 or enforcement of the Federal Water Pollution 

4 Control Act (33 U.S.C. 1251 et seq.). 

5 (2) USE OF RULES AND GUIDANCE.—The use 

6 of the proposed rule or proposed guidance described 

7 in paragraph (1)(A), any successor document, or any 

8 substantially similar proposed rule or guidance, as 

9 the basis for any rulemaking or decision regarding 

10 the scope or enforcement of the Federal Water Pol11 lution Control Act shall be grounds for vacating the 

12 final rule, decision, or enforcement action. 

13 (b) EXEMPTION FOR CERTAIN AGRICULTURAL CON14 SERVATION PRACTICES.— 

15 (1) IN GENERAL.—The Secretary and the Ad16 ministrator are prohibited from developing, final17 izing, adopting, implementing, applying, admin18 istering, or enforcing the interpretive rule described 

19 in the notice of availability published in the Federal 

20 Register entitled ‘‘Notice of Availability Regarding 

21 the Exemption from Permitting Under Section 

22 404(f)(1)(A) of the Clean Water Act to Certain Ag23 ricultural Conservation Practices’’ (79 Fed. Reg. 

24 22276 (April 21, 2014)). 

mstockstill on DSK4VPTVN1PROD with BILLS

4 

•HR 5078 IH

1 (2) WITHDRAWAL.—The Secretary and the Ad2 ministrator shall withdraw the interpretive rule de3 scribed in paragraph (1), and such interpretive rule 

4 shall have no force or effect. 

5 (3) APPLICATION.—Section 404(f)(1)(A) of the 

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

7 1344(f)(1)(A)) shall be applied without regard to the 

8 interpretive rule described in paragraph (1). 

9 SEC. 3. FEDERALISM CONSULTATION. 

10 (a) IN GENERAL.—The Secretary and the Adminis11 trator shall jointly consult with relevant State and local 

12 officials to develop recommendations for a regulatory pro13 posal that would, consistent with applicable rulings of the 

14 United States Supreme Court, identify— 

15 (1) the scope of waters covered under the Fed16 eral Water Pollution Control Act; and 

17 (2) the scope of waters not covered under such 

18 Act. 

19 (b) CONSULTATION REQUIREMENTS.—In developing 

20 the recommendations under subsection (a), the Secretary 

21 and the Administrator shall— 

22 (1) provide relevant State and local officials 

23 with notice and an opportunity to participate in the 

24 consultation process under subsection (a); 

mstockstill on DSK4VPTVN1PROD with BILLS

5 

•HR 5078 IH

1 (2) seek to consult State and local officials that 

2 represent a broad cross-section of regional, eco3 nomic, and geographic perspectives in the United 

4 States; 

5 (3) emphasize the importance of collaboration 

6 with and among the relevant State and local offi7 cials; 

8 (4) allow for meaningful and timely input by 

9 State and local officials; 

10 (5) be respectful of maintaining the Federal11 State partnership in implementing the Federal 

12 Water Pollution Control Act; 

13 (6) take into consideration the input of State 

14 and local officials regarding matters involving dif15 ferences in State and local geography, hydrology, cli16 mate, legal frameworks, economies, priorities, and 

17 needs; 

18 (7) promote transparency in the consultation 

19 process under subsection (a); and 

20 (8) explore with State and local officials wheth21 er Federal objectives under the Federal Water Pollu22 tion Control Act can be attained by means other 

23 than through a new regulatory proposal. 

24 (c) REPORTS.— 

mstockstill on DSK4VPTVN1PROD with BILLS

6 

•HR 5078 IH

1 (1) IN GENERAL.—Not later than 12 months 

2 after the date of the enactment of this Act, the Sec3 retary and the Administrator shall publish in the 

4 Federal Register a draft report describing the rec5 ommendations developed under subsection (a). 

6 (2) CONSENSUS REQUIREMENT.—The Secretary 

7 and the Administrator may include a recommenda8 tion in the draft report only if consensus has been 

9 reached with regard to the recommendation among 

10 the Secretary, the Administrator, and the State and 

11 local officials consulted under subsection (a). 

12 (3) FAILURE TO REACH CONSENSUS.—If the 

13 Secretary, the Administrator, and the State and 

14 local officials consulted under subsection (a) fail to 

15 reach consensus on a regulatory proposal, the draft 

16 report shall identify that consensus was not reached 

17 and describe— 

18 (A) the areas and issues where consensus 

19 was reached; 

20 (B) the areas and issues of continuing dis21 agreement that resulted in the failure to reach 

22 consensus; and 

23 (C) the reasons for the continuing dis24 agreements. 

mstockstill on DSK4VPTVN1PROD with BILLS

7 

•HR 5078 IH

1 (4) DURATION OF REVIEW.—The Secretary and 

2 the Administrator shall provide not fewer than 180 

3 days for the public review and comment of the draft 

4 report. 

5 (5) FINAL REPORT.—The Secretary and the 

6 Administrator shall, in consultation with the relevant 

7 State and local officials, address any comments re8 ceived under paragraph (4) and prepare a final re9 port describing the final results of the consultation 

10 process under subsection (a). 

11 (d) SUBMISSION OF REPORT TO CONGRESS.—Not 

12 later than 24 months after the date of enactment of this 

13 Act, the Secretary and the Administrator shall jointly sub14 mit to the Committee on Transportation and Infrastruc15 ture of the House of Representatives and the Committee 

16 on Environment and Public Works of the Senate and 

17 make publicly available the final report prepared under 

18 subsection (c)(5). 

19 SEC. 4. DEFINITIONS. 

20 In this Act, the following definitions apply: 

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

22 the Secretary of the Army. 

23 (2) ADMINISTRATOR.—The term ‘‘Adminis24 trator’’ means the Administrator of the Environ25 mental Protection Agency. 

mstockstill on DSK4VPTVN1PROD with BILLS

8 

•HR 5078 IH

1 (3) STATE AND LOCAL OFFICIALS.—The term 

2 ‘‘State and local officials’’ means elected or profes3 sional State and local government officials or their 

4 representative regional or national organizations. 

Æ 

mstockstill on DSK4VPTVN1PROD with BILLS