II 114th CONGRESS 1st Session S. 1178 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. Short title This Act may be cited as the Defending Rivers from Overreaching Policies Act of 2015 . 2. Waters of the United States (a) Findings Congress finds that— (1) according to the testimony of Assistant Secretary of the Army for Civil Works Jo-Ellen Darcy at the House of Representatives and Senate Joint Hearing on State and Local Impacts of the Administration’s Proposed Expansion of Waters Regulation on February 4, 2015, that proposed expansion of waters regulation is based on science including a peer-reviewed report on connectivity and the recommendations of EPA’s Science Advisory Board ; (2) the proposed rule entitled Definition of Waters of the United States Under the Clean Water Act (79 Fed. Reg. 22188 (April 21, 2014)), was drafted before the science on which the proposed rule was based had been reviewed by the Scientific Advisory Board of the Environmental Protection Agency; (3) the final review and synthesis of the scientific evidence was released in January 2015, 2 months after the close of the public comment period for the proposed rule; (4) the review and synthesis of the scientific evidence found that the degree and downstream effects of those connections [between parts of a watershed] vary spatially and temporally and the connectivity of streams and wetlands to downstream waters occurs along a continuum ; (5) the authors of the review and synthesis were unable to place the water bodies in the case studies along a gradient of connectivity and reported that the research community has not reached a consensus regarding the best methods or metrics to quantify or predict hydrologic or chemical connectivity ; (6) without a scientific basis for evaluating the degree of connectivity between a particular stream and a traditionally navigable water, it is premature to use the scientific literature to define which connections are significant ; (7) because the analysis of the relevant science was completed after the proposed rule described in paragraph (2) was drafted, and because the scientific review failed to produce a method to assess the location of a particular water body on a gradient of connectivity , the resulting proposed rule is not effectively based on science; and (8) because the likely cost of implementation of that proposed rule will be greater than the $162,000,000 to $278,000,000 cited in the testimony of Administrator of the Environmental Protection Agency Gina McCarthy at the House of Representatives and Senate joint hearing described in paragraph (1), the proposal will have significant impacts on many sectors of the United States economy. (b) Definitions In this section: (1) Administrator The term Administrator means the Administrator of the Environmental Protection Agency. (2) Commission The term Commission means the Commission established under subsection (d)(1). (3) Panel The term Panel means the Panel established under subsection (c)(1). (4) Proposed rule The term proposed rule means the proposed rule entitled Definition of Waters of the United States Under the Clean Water Act (79 Fed. Reg. 22188 (April 21, 2014)). (5) Secretary The term Secretary means the Secretary of the Army, acting through the Chief of Engineers. (c) Supplemental Scientific Review Panel (1) Establishment The Secretary and the Administrator shall establish a panel, to be known as the Supplemental Scientific Review Panel , to submit to the Secretary and the Administrator recommendations regarding metrics, based on the best available scientific information, to quantify the degree of connectivity between any body of water or wetland and a traditionally navigable water. (2) Membership (A) In general The Panel shall be composed of 9 members, of whom— (i) 2 shall be appointed by the Majority Leader of the Senate; (ii) 2 shall be appointed by the Minority Leader of the Senate; (iii) 2 shall be appointed by the Speaker of the House of Representatives; (iv) 2 shall be appointed by the Minority Leader of the House of Representatives; and (v) 1 shall be appointed by the President of the National Academy of Engineering. (B) Date of appointments The appointment of a member of the Panel shall be made not later than 45 days after the date of enactment of this Act. (C) Qualifications Each member of the Panel shall be appointed from among individuals who possess— (i) expertise in a field of the biogeosciences, such as hydrology, ecology, or geomorphology; (ii) (I) academic excellence, as determined in accordance with criteria including peer-reviewed journal publications and invited academic conference presentations; or (II) practical expertise demonstrated by a record of employment as a professional with equivalent experience as an academic scientist; and (iii) experience regarding collecting and interpreting field measurements of streams and wetlands. (D) Requirement In appointing members of the Panel, each appointing officer referred to in subparagraph (A) shall ensure that the Panel includes balanced representation of research expertise across all Level I ecoregions (as defined in section III of the 1997 publication of the Commission for Environmental Cooperation publication entitled Ecological Regions of North America Toward a Common Perspective ). (E) Chairperson At the first meeting of the Panel, a majority of the members of the Panel present and voting shall elect the Chairperson of the Panel from among the members of the Panel. (F) Vacancies A vacancy on the Panel— (i) shall not affect the powers of the Panel; and (ii) shall be filled in the same manner as the original appointment was made. (G) Compensation (i) In general A member of the Panel— (I) shall not be considered to be a Federal employee for any purpose by reason of service on the Panel; and (II) shall serve without pay. (ii) Travel expenses A member of the Panel shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter I of chapter 57 of title 5, United States Code, while away from the home or regular place of business of the member in the performance of the duties of the Panel. (H) Initial meeting The Panel shall hold the initial meeting of the Panel by not later than 90 days after the date of enactment of this Act. (I) Meetings The Panel shall meet at the call of a majority of the members of the Panel. (J) Quorum Of the members of the Panel, 5 shall constitute a quorum. (K) Rules of procedure The Panel may establish rules for the conduct of business of the Panel, subject to the condition that those rules shall not be inconsistent with this Act or any other applicable law. (3) Duties The Panel shall— (A) recommend metrics, based on the best available scientific information and considering the duration, magnitude, and frequency of flows, to quantify the degree of connectivity between any body of water or wetland and a traditionally navigable water; (B) ensure the recommended metrics account for regional variability in all types of waterbodies and across all States, the District of Columbia, Puerto Rico, and other territories and possessions of the United States; and (C) not later than 1 year after the date on which the Panel first convenes, submit to the Secretary and Administrator a report describing each recommendation of the Panel to which not fewer than 6 members have agreed. (4) Administrative support (A) In general The Secretary and the Administrator shall provide to the Panel such staff and administrative services as may be necessary and appropriate for the Panel to perform the duties under paragraph (3). (B) Detail of Federal Government employees (i) In general An employee of the Federal Government may be detailed to the Panel without reimbursement. (ii) Civil service status The detail of the employee shall be without interruption or loss of civil service status or privilege. (5) Funding The Secretary and the Administrator shall provide to the Panel such funds as the Secretary and the Administrator determine to be appropriate from amounts made available to the Secretary and the Administrator in appropriations Acts. (6) Termination The Panel shall terminate on the earlier of— (A) the date that is 180 days after the date on which the report is submitted under paragraph (3)(C); and (B) the date that is 2 years after the date of enactment of this Act. (7) Applicability of Federal Advisory Committee Act (A) In general The Federal Advisory Committee Act (5 U.S.C. App.) shall apply to the Panel. (B) Public meetings and release of public versions of reports The Panel shall— (i) hold public hearings and meetings to the extent appropriate; and (ii) release public versions of the report required under paragraph (3)(C). (C) Public hearings Any public hearings of the Panel shall be conducted in a manner consistent with the protection of information provided to or developed for or by the Panel as required by any applicable law, regulation, or Executive order. (d) Ephemeral and Intermittent Streams Advisory Commission (1) Establishment The Secretary and the Administrator shall establish a commission, to be known as the Ephemeral and Intermittent Streams Advisory Commission , to develop criteria to define whether a waterbody or wetland has a significant nexus to a traditional navigable water using the metrics developed by the Panel. (2) Membership (A) In general The Commission shall be composed of 15 members, of whom— (i) 2 shall be appointed by the Majority Leader of the Senate; (ii) 2 shall be appointed by the Minority Leader of the Senate; (iii) 2 shall be appointed by the Speaker of the House of Representatives; (iv) 2 shall be appointed by the Minority Leader of the House of Representatives; and (v) 7 shall be appointed jointly by the Administrator and the Secretary. (B) Date of appointments The appointment of a member of the Commission shall be made not later than the date that is 45 days after the date on which the report of the Panel is submitted under subsection (c)(3)(C). (C) Qualifications Each member of the Commission shall be appointed from among individuals who possess— (i) experience regarding the permitting process under the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ); (ii) experience serving on the Panel; or (iii) (I) expertise in a field of the biogeosciences, such as hydrology, ecology, or geomorphology; and (II) academic excellence, as determined in accordance with criteria including peer-reviewed journal publications and invited academic conference presentations. (D) Requirements In appointing members of the Commission, each appointing officer referred to in subparagraph (A) shall ensure that the Commission includes— (i) balanced representation of research expertise across all Level I ecoregions (as defined in section III of the 1997 publication of the Commission for Environmental Cooperation publication entitled Ecological Regions of North America Toward a Common Perspective ); and (ii) equal representation of the following groups: (I) Individuals who represent— (aa) the interests of builders and developers; (bb) agricultural interests; (cc) energy and mineral development; or (dd) the commercial timber industry. (II) Individuals who represent— (aa) nationally or regionally recognized environmental organizations; (bb) sport, recreational, and commercial fishing interests; (cc) sportsman's organizations; or (dd) municipal water supply interests. (III) Individuals who— (aa) hold a State, county, or local elected office; (bb) are employed by a State agency responsible for the management of the environment or natural interests; or (cc) represent the affected public at-large. (E) Chairperson At the first meeting of the Commission, a majority of the members of the Commission present and voting shall elect the Chairperson of the Commission from among the members of the Commission. (F) Vacancies A vacancy on the Commission— (i) shall not affect the powers of the Commission; and (ii) shall be filled in the same manner as the original appointment was made. (G) Compensation (i) In general A member of the Commission— (I) shall not be considered to be a Federal employee for any purpose by reason of service on the Commission; and (II) shall serve without pay. (ii) Travel expenses A member of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for an employee of an agency under subchapter I of chapter 57 of title 5, United States Code, while away from the home or regular place of business of the member in the performance of the duties of the Commission. (H) Initial meeting The Commission shall hold the initial meeting of the Commission not earlier than the date on which the report of the Panel is submitted under subsection (c)(3)(C). (I) Meetings The Commission shall meet at the call of a majority of the members of the Commission. (J) Quorum Of the members of the Commission, 9 shall constitute a quorum. (K) Rules of procedure The Commission may establish rules for the conduct of business of the Commission, subject to the condition that those rules shall not be inconsistent with this Act or any other applicable law. (3) Duties The Commission shall— (A) develop criteria to define whether a waterbody or wetland has a significant nexus to traditional navigable water using the metrics developed by the Panel; (B) ensure those criteria account for regional variability in all types of waterbodies and wetlands and across all States, the District of Columbia, Puerto Rico, and other territories and possessions of the United States; (C) not later than 180 days after the date on which the Commission holds the initial meeting under paragraph (2)(H), submit to the Secretary and the Administrator a draft report that— (i) describes the criteria developed by the Commission; and (ii) is subject to a 60-day period for public comment; and (D) after addressing the comments received during the 60-day comment period under subparagraph (C)(ii), submit to the Secretary and the Administrator a final report. (4) Administrative support (A) In general The Secretary and the Administrator shall provide to the Commission such staff and administrative services as may be necessary and appropriate for the Commission to perform the duties under paragraph (3). (B) Detail of Federal Government employees (i) In general An employee of the Federal Government may be detailed to the Commission without reimbursement. (ii) Civil service status The detail of the employee shall be without interruption or loss of civil service status or privilege. (5) Funding The Secretary and the Administrator shall provide to the Commission such funds as the Secretary and the Administrator determine to be appropriate from amounts made available to the Secretary and the Administrator in appropriations Acts. (6) Termination The Commission shall terminate on the earlier of— (A) the date that is 180 days after the date on which the final report is submitted under paragraph (3)(D); and (B) the date that is 3 years after the date of enactment of this Act. (7) Applicability of Federal Advisory Committee Act (A) In general The Federal Advisory Committee Act (5 U.S.C. App.) shall apply to the Commission. (B) Public meetings and release of public versions of reports The Commission shall— (i) hold public hearings and meetings to the extent appropriate; and (ii) release public versions of the reports required under subparagraphs (C) and (D) of paragraph (3). (C) Public hearings Any public hearings of the Commission shall be conducted in a manner consistent with the protection of information provided to or developed for or by the Commission as required by any applicable law, regulation, or Executive order. (e) Prohibition The Secretary and the Administrator are prohibited from developing, finalizing, adopting, implementing, applying, administering, or enforcing the proposed rule or beginning the drafting of any substantially similar rule until the date on which the Secretary and the Administrator receive a final report from the Commission under subsection (d)(3)(D).