II 113th CONGRESS 1st Session S. 861 IN THE SENATE OF THE UNITED STATES May 6, 2013 Mr. McConnell (for himself and Mr. Paul ) 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 provide guidance and clarification regarding issuing new and renewal permits, and for other purposes.

1. National Pollutant Discharge Elimination System (a) Applicability of guidance Section 402 of the Federal Water Pollution Control Act ( 33 U.S.C. 1342 ) is amended by adding at the end the following: (s) Applicability of guidance (1) Definitions In this subsection: (A) Guidance (i) In general The term guidance means draft, interim, or final guidance issued by the Administrator. (ii) Inclusions The term guidance includes— (I) the comprehensive guidance issued by the Administrator and dated April 1, 2010; (II) the proposed guidance entitled Draft Guidance on Identifying Waters Protected by the Clean Water Act and dated April 28, 2011; (III) the final guidance proposed by the Administrator and dated July 21, 2011; and (IV) any other document or paper issued by the Administrator through any process other than the notice and comment rulemaking process. (B) New permit The term new permit means a permit covering discharges from a structure— (i) that is issued under this section by a permitting authority; and (ii) for which an application is— (I) pending as of the date of enactment of this subsection; or (II) filed on or after the date of enactment of this subsection. (C) Permitting authority The term permitting authority means— (i) the Administrator; or (ii) a State, acting pursuant to a State program that is equivalent to the program under this section and approved by the Administrator. (2) Permits (A) In general Notwithstanding any other provision of law, in making a determination whether to approve a new permit or a renewed permit, the permitting authority— (i) shall base the determination only on compliance with regulations issued by the Administrator or the permitting authority; and (ii) shall not base the determination on the extent of adherence of the applicant for the new permit or renewed permit to guidance. (B) New permits If the permitting authority does not approve or deny an application for a new permit by the date that is 270 days after the date of receipt of the application for the new permit, the applicant may operate as if the application were approved in accordance with Federal law for the period of time for which a permit from the same industry would be approved. (C) Substantial completeness In determining whether an application for a new permit or a renewed permit received under this paragraph is substantially complete, the permitting authority shall use standards for determining substantial completeness of similar permits for similar facilities submitted in fiscal year 2007. . (b) State permit programs (1) In general Section 402 of the Federal Water Pollution Control Act ( 33 U.S.C. 1342 ) is amended by striking subsection (b) and inserting the following: (b) State permit programs (1) In general At any time after the promulgation of the guidelines required by section 304(I)(2), the Governor of each State desiring to administer a permit program for discharges into navigable waters within the jurisdiction of the State may submit to the Administrator— (A) a full and complete description of the program the State proposes to establish and administer under State law or under an interstate compact; and (B) a statement from the attorney general (or the attorney for those State water pollution control agencies that have independent legal counsel), or from the chief legal officer in the case of an interstate agency, that the laws of the State, or the interstate compact, as applicable, provide adequate authority to carry out the described program. (2) Approval The Administrator shall approve each program for which a description is submitted under paragraph (1) unless the Administrator determines that adequate authority does not exist— (A) to issue permits that— (i) apply, and ensure compliance with, any applicable requirements of sections 301, 302, 306, 307, and 403; (ii) are for fixed terms not exceeding 5 years; (iii) can be terminated or modified for cause including— (I) a violation of any condition of the permit; (II) obtaining a permit by misrepresentation or failure to disclose fully all relevant facts; and (III) a change in any condition that requires either a temporary or permanent reduction or elimination of the permitted discharge; and (iv) control the disposal of pollutants into wells; (B) (i) to issue permits that apply, and ensure compliance with, all applicable requirements of section 308; or (ii) to inspect, monitor, enter, and require reports to at least the same extent as required in section 308; (C) to ensure that the public, and any other State the waters of which may be affected, receives notice of each application for a permit and an opportunity for a public hearing before a ruling on each application; (D) to ensure that the Administrator receives notice and a copy of each application for a permit; (E) to ensure that any State (other than the permitting State), whose waters may be affected by the issuance of a permit may submit written recommendations to the permitting State and the Administrator with respect to any permit application and, if any part of the written recommendations are not accepted by the permitting State, that the permitting State will notify the affected State and the Administrator in writing of the failure of the State to accept the recommendations, including the reasons for not accepting the recommendations; (F) to ensure that no permit will be issued if, in the judgment of the Secretary of the Army acting through the Chief of Engineers, after consultation with the Secretary of the department in which the Coast Guard is operating, anchorage and navigation of any of the navigable waters would be substantially impaired by the issuance of the permit; (G) to abate violations of the permit or the permit program, including civil and criminal penalties and other means of enforcement; (H) to ensure that any permit for a discharge from a publicly owned treatment works includes conditions to require the identification in terms of character and volume of pollutants of any significant source introducing pollutants subject to pretreatment standards under section 307(b) into the treatment works and a program to ensure compliance with those pretreatment standards by each source, in addition to adequate notice, which shall include information on the quality and quantity of effluent to be introduced into the treatment works and any anticipated impact of the change in the quantity or quality of effluent to be discharged from the publicly owned treatment works, to the permitting agency of— (i) new introductions into the treatment works of pollutants from any source that would be a new source as defined in section 306 if the source were discharging pollutants; (ii) new introductions of pollutants into the treatment works from a source that would be subject to section 301 if the source were discharging those pollutants; or (iii) a substantial change in volume or character of pollutants being introduced into the treatment works by a source introducing pollutants into the treatment works at the time of issuance of the permit; and (I) to ensure that any industrial user of any publicly owned treatment works will comply with sections 204(b), 307, and 308. (3) Administration Notwithstanding paragraph (2), the Administrator may not disapprove or withdraw approval of a program under this subsection on the basis of the following: (A) The failure of the program to incorporate or comply with guidance (as defined in subsection (s)(1)). (B) The implementation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c). . (2) Conforming amendments (A) Section 309 of the Federal Water Pollution Control Act ( 33 U.S.C. 1319 ) is amended— (i) in subsection (c)— (I) in paragraph (1)(A), by striking 402(b)(8) and inserting   402(b)(2)(H) ; and (II) in paragraph (2)(A), by striking 402(b)(8) and inserting 402(b)(2)(H) ; and (ii) in subsection (d), in the first sentence, by striking 402(b)(8) and inserting 402(b)(2)(H) . (B) Section 402(m) of the Federal Water Pollution Control Act ( 33 U.S.C. 1342(m) ) is amended in the first sentence by striking subsection (b)(8) of this section and inserting subsection (b)(2)(H) . (c) Suspension of Federal program Section 402(c) of the Federal Water Pollution Control Act ( 33 U.S.C. 1342(c) ) is amended— (1) by redesignating paragraph (4) as paragraph (5); and (2) by inserting after paragraph (3) the following: (4) Limitation on disapproval Notwithstanding paragraphs (1) through (3), the Administrator may not disapprove or withdraw approval of a State program under subsection (b) on the basis of the failure of the following: (A) The failure of the program to incorporate or comply with guidance (as defined in subsection (s)(1)). (B) The implementation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c). . (d) Notification of Administrator Section 402(d)(2) of the Federal Water Pollution Control Act ( 33 U.S.C. 1342(d)(2) ) is amended— (1) by striking (2) No and inserting the following: (2) Objection by Administrator (A) In general Subject to subparagraph (C), no permit shall issue if— (i) not later than 90 days after the date on which the Administrator receives notification under subsection (b)(2)(E), the Administrator objects in writing to the issuance of the permit; or (ii) not later than 90 days after the date on which the proposed permit of the State is transmitted to the Administrator, the Administrator objects in writing to the issuance of the permit as being outside the guidelines and requirements of this Act. ; (2) in the second sentence, by striking Whenever the Administrator and inserting the following: (B) Requirements If the Administrator ; and (3) by adding at the end the following: (C) Exception The Administrator shall not object to or deny the issuance of a permit by a State under subsection (b) or (s) based on the following: (i) Guidance, as that term is defined in subsection (s)(1). (ii) The Administrator’s interpretation of a water quality standard that has been adopted by the State and approved by the Administrator under section 303(c). . 2. Permits for dredged or fill material (a) In general Section 404(a) of the Federal Water Pollution Control Act ( 33 U.S.C. 1344(a) ) is amended— (1) by striking the section heading and all that follows through Sec . 404. (a) The Secretary may issue and inserting the following: 404. Permits for dredged or fill material (a) Permits (1) In general The Secretary may issue ; and (2) by adding at the end the following: (2) Deadline for approval (A) Permit applications (i) In general Except as provided in clause (ii), if an environmental assessment or environmental impact statement, as appropriate, is required under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ), the Secretary shall— (I) begin the process not later than 90 days after the date on which the Secretary receives a permit application; and (II) approve or deny an application for a permit under this subsection not later than the latter of— (aa) if an agency carries out an environmental assessment that leads to a finding of no significant impact, the date on which the finding of no significant impact is issued; or (bb) if an agency carries out an environmental assessment that leads to a record of decision, 15 days after the date on which the record of decision on an environmental impact statement is issued. (ii) Processes Notwithstanding clause (i), regardless of whether the Secretary has commenced an environmental assessment or environmental impact statement by the date described in clause (i)(I), the following deadlines shall apply: (I) An environmental assessment carried out under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) shall be completed not later than 1 year after the deadline for commencing the permit process under clause (i)(I). (II) An environmental impact statement carried out under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ) shall be completed not later than 2 years after the deadline for commencing the permit process under clause (i)(I). (B) Failure to act If the Secretary fails to act by the deadline specified in clause (i) or (ii) of subparagraph (A)— (i) the application, and the permit requested in the application, shall be considered to be approved; (ii) the Secretary shall issue a permit to the applicant; and (iii) the permit shall not be subject to judicial review. . (b) State Permitting Programs (1) Authority of EPA Administrator Section 404(c) of the Federal Water Pollution Control Act ( 33 U.S.C. 1344(c) ) is amended by striking (c) and inserting the following: (c) Authority of EPA Administrator (1) Possible prohibition of specification Until such time as the Secretary has issued a permit under this section, the Administrator is authorized to prohibit the specification (including the withdrawal of specification) of any defined area as a disposal site, and he is authorized to deny or restrict the use of any defined area for specification (including the withdrawal of specification) as a disposal site, whenever he determines, after notice and opportunity for public hearings, that the discharge of such materials into such area will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. Before making such determination, the Administrator shall consult with the Secretary. The Administrator shall set forth in writing and make public his findings and his reasons for making any determination under this subsection. (2) Authority of State permitting programs Paragraph (1) shall not apply to any permit if the State in which the discharge originates or will originate does not concur with the Administrator’s determination that the discharge will result in an unacceptable adverse effect as described in paragraph (1). . (c) State Programs The first sentence of section 404(g)(1) of such Act ( 33 U.S.C. 1344(g)(1) ) is amended by striking for the discharge and inserting for some or all of the discharges . 3. Impacts of EPA regulatory activity on employment and economic activity (a) Analysis of impacts of actions on employment and economic activity (1) Analysis Before taking a covered action, the Administrator shall analyze the impact, disaggregated by State, of the covered action on employment levels and economic activity, including estimated job losses and decreased economic activity. (2) Economic models (A) In general In carrying out paragraph (1), the Administrator shall utilize the best available economic models. (B) Annual GAO report Not later than December 31st of each year, the Comptroller General of the United States shall submit to Congress a report on the economic models used by the Administrator to carry out this subsection. (3) Availability of information With respect to any covered action, the Administrator shall— (A) post the analysis under paragraph (1) as a link on the main page of the public Internet Web site of the Environmental Protection Agency; and (B) request that the Governor of any State experiencing more than a de minimis negative impact post such analysis in the Capitol of such State. (b) Public hearings (1) In general If the Administrator concludes under subsection (a)(1) that a covered action will have more than a de minimis negative impact on employment levels or economic activity in a State, the Administrator shall hold a public hearing in each such State at least 30 days prior to the effective date of the covered action. (2) Time, location, and selection A public hearing required under paragraph (1) shall be held at a convenient time and location for impacted residents. In selecting a location for such a public hearing, the Administrator shall give priority to locations in the State that will experience the greatest number of job losses. (c) Notification If the Administrator concludes under subsection (a)(1) that a covered action will have more than a de minimis negative impact on employment levels or economic activity in any State, the Administrator shall give notice of such impact to the State’s Congressional delegation, Governor, and Legislature at least 45 days before the effective date of the covered action. (d) Definitions In this section, the following definitions apply: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) Covered action The term covered action means any of the following actions taken by the Administrator under the Federal Water Pollution Control Act ( 33 U.S.C. 1201 et seq. ): (A) Issuing a regulation, policy statement, guidance, response to a petition, or other requirement. (B) Implementing a new or substantially altered program. (3) More than a de minimis negative impact The term more than a de minimis negative impact means the following: (A) With respect to employment levels, a loss of more than 100 jobs. Any offsetting job gains that result from the hypothetical creation of new jobs through new technologies or government employment may not be used in the job loss calculation. (B) With respect to economic activity, a decrease in economic activity of more than $1,000,000 over any calendar year. Any offsetting economic activity that results from the hypothetical creation of new economic activity through new technologies or government employment may not be used in the economic activity calculation. 4. Identification of waters protected by the Clean Water Act (a) In general The Secretary of the Army and the Administrator of the Environmental Protection Agency may not— (1) finalize, adopt, implement, administer, or enforce the proposed guidance described in the notice of availability and request for comments entitled EPA and Army Corps of Engineers Guidance Regarding Identification of Waters Protected by the Clean Water Act (EPA–HQ–OW–2011–0409) (76 Fed. Reg. 24479 (May 2, 2011)); and (2) use the guidance described in paragraph (1), any successor document, or any substantially similar guidance made publicly available on or after December 3, 2008, as the basis for any decision regarding the scope of the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ) or any rulemaking. (b) Rules The use of the guidance described in subsection (a)(1), or any successor document or substantially similar guidance made publicly available on or after December 3, 2008, as the basis for any rule shall be grounds for vacating the rule. 5. Limitations on authority to modify State water quality standards (a) State water quality standards Section 303(c)(4) of the Federal Water Pollution Control Act ( 33 U.S.C. 1313(c)(4) ) is amended— (1) by redesignating subparagraphs (A) and (B) as clauses (i) and (ii), respectively; (2) by striking (4) and inserting (4)(A) ; (3) by striking The Administrator shall promulgate and inserting the following: (B) The Administrator shall promulgate; and (4) by adding at the end the following: (C) Notwithstanding subparagraph (A)(ii), the Administrator may not promulgate a revised or new standard for a pollutant in any case in which the State has submitted to the Administrator and the Administrator has approved a water quality standard for that pollutant, unless the State concurs with the Administrator's determination that the revised or new standard is necessary to meet the requirements of this Act. . (b) Federal licenses and permits Section 401(a) of such Act ( 33 U.S.C. 1341(a) ) is amended by adding at the end the following: (7) With respect to any discharge, if a State or interstate agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate determines under paragraph (1) that the discharge will comply with the applicable provisions of sections 301, 302, 303, 306, and 307, the Administrator may not take any action to supersede the determination. . 6. State authority to identify waters within its boundaries Section 303 of the Federal Water Pollution Control Act ( 33 U.S.C. 1313 ) is amended by striking subsection (d)(2) and inserting the following: (2) (A) Each State shall submit to the Administrator from time to time, with the first such submission not later than 180 days after the date of publication of the first identification of pollutants under section 304(a)(2)(D), the waters identified and the loads established under paragraphs (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The Administrator shall approve the State identification and load or announce his disagreement with the State identification and load not later than 30 days after the date of submission and if— (i) the Administrator approves the identification and load submitted by the State in accordance with this subsection, such State shall incorporate them into its current plan under subsection (e); and (ii) the Administrator announces his disagreement with the identification and load submitted by the State in accordance with this subsection he shall submit, not later than 30 days after the date that the Administrator announces his disagreement with the State’s submission, to such State his written recommendation of those additional waters that he identifies and such loads for such waters as he believes are necessary to implement the water quality standards applicable to such waters. (B) Upon receipt of the Administrator’s recommendation the State shall within 30 days either— (i) disregard the Administrator’s recommendation in full and incorporate its own identification and load into its current plan under subsection (e); (ii) accept the Administrator’s recommendation in full and incorporate its identification and load as amended by the Administrator’s recommendation into its current plan under subsection (e); or (iii) accept the Administrator’s recommendation in part, identifying certain additional waters and certain additional loads proposed by the Administrator to be added to such State’s identification and load and incorporate the such State’s identification and load as amended into its current plan under subsection (e). (C) (i) If the Administrator fails to either approve the State identification and load or announce his disagreement with the State identification and load within the time specified in this subsection then such State’s identification and load is deemed approved and such State shall incorporate the identification and load that it submitted into its current plan under subsection (e). (ii) If the Administrator announces his disagreement with the State identification and load but fails to submit his written recommendation to the State within 30 days as required by subparagraph (A)(ii) then such State’s identification and load is deemed approved and such State shall incorporate the identification and load that it submitted into its current plan under subsection (e). (D) This section shall apply to any decision made by the Administrator under this subsection issued on or after March 1, 2013. .