H. Rept. 112-139 - 112th Congress (2011-2012)
July 08, 2011, As Reported by the Transportation and Infrastructure Committee

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House Report 112-139 - CLEAN WATER COOPERATIVE FEDERALISM ACT OF 2011




[House Report 112-139]
[From the U.S. Government Printing Office]


112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    112-139

======================================================================



 
             CLEAN WATER COOPERATIVE FEDERALISM ACT OF 2011

                                _______
                                

  July 8, 2011.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Mica, from the Committee on Transportation and Infrastructure, 
                        submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 2018]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 2018) 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, having considered the same, 
report favorably thereon with an amendment and recommend that 
the bill as amended do pass.

                                CONTENTS

                                                                   Page
Purpose of the Legislation and Summary...........................     3
Background and Need for the Legislation..........................     3
Legislative History..............................................     5
Hearings.........................................................     6
Committee Votes..................................................     6
Committee Oversight Findings.....................................     8
Cost of Legislation..............................................     8
New Budget Authority and Tax Expenditures........................     8
Congressional Budget Office Cost Estimate........................     8
Performance Goals and Objectives.................................     9
Advisory of Earmarks.............................................     9
Federal Mandates Statement.......................................    10
Preemption Clarification.........................................    10
Advisory Committee Statement.....................................    10
Applicability to the Legislative Branch..........................    10
Section-by-Section Analysis of the Legislation...................    10
Changes in Existing Law Made by the Bill, as Reported............    13
Dissenting Views.................................................    17

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Clean Water Cooperative Federalism Act 
of 2011''.

SEC. 2. 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.''.
  (c) State NPDES Permit Programs.--Section 402(c) of such Act (42 
U.S.C. 1342(c)) is amended by adding at the end the following:
          ``(5) Limitation on authority of administrator to withdraw 
        approval of state programs.--The Administrator may not withdraw 
        approval of a State program under paragraph (3) or (4), or 
        limit Federal financial assistance for the State program, on 
        the basis that the Administrator disagrees with the State 
        regarding--
                  ``(A) the implementation of any water quality 
                standard that has been adopted by the State and 
                approved by the Administrator under section 303(c); or
                  ``(B) the implementation of any Federal guidance that 
                directs the interpretation of the State's water quality 
                standards.''.
  (d) Limitation on Authority of Administrator To Object to Individual 
Permits.--Section 402(d) of such Act (33 U.S.C. 1342(d)) is amended by 
adding at the end the following:
  ``(5) The Administrator may not object under paragraph (2) to the 
issuance of a permit by a State on the basis of--
          ``(A) 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); or
          ``(B) the implementation of any Federal guidance that directs 
        the interpretation of the State's water quality standards.''.

SEC. 3. PERMITS FOR DREDGED OR FILL MATERIAL.

  (a) Authority of EPA Administrator.--Section 404(c) of the Federal 
Water Pollution Control Act (33 U.S.C. 1344(c)) is amended--
          (1) by striking ``(c)'' and inserting ``(c)(1)''; and
          (2) by adding at the end the following:
  ``(2) 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).''.
  (b) State Permit Programs.--The first sentence of section 404(g)(1) 
of such Act (33 U.S.C. 1344(g)(1)) is amended by striking ``The 
Governor of any State desiring to administer its own individual and 
general permit program for the discharge'' and inserting ``The Governor 
of any State desiring to administer its own individual and general 
permit program for some or all of the discharges''.

SEC. 4. DEADLINES FOR AGENCY COMMENTS.

  Section 404 of the Federal Water Pollution Control Act (33 U.S.C. 
1344) is amended--
          (1) in subsection (m) by striking ``ninetieth day'' and 
        inserting ``30th day (or the 60th day if additional time is 
        requested)''; and
          (2) in subsection (q)--
                  (A) by striking ``(q)'' and inserting ``(q)(1)''; and
                  (B) by adding at the end the following:
  ``(2) The Administrator and the head of a department or agency 
referred to in paragraph (1) shall each submit any comments with 
respect to an application for a permit under subsection (a) or (e) not 
later than the 30th day (or the 60th day if additional time is 
requested) after the date of receipt of an application for a permit 
under that subsection.''.

SEC. 5. APPLICABILITY OF AMENDMENTS.

  The amendments made by this Act shall apply to actions taken on or 
after the date of enactment of this Act, including actions taken with 
respect to permit applications that are pending or revised or new 
standards that are being promulgated as of such date of enactment.

                 Purpose of the Legislation and Summary

    The ``Clean Water Cooperative Federalism Act of 2011,'' 
H.R. 2018, amends the Federal Water Pollution Control Act to 
restore the long-standing relationship between states and the 
U.S. Environmental Protection Agency as co-regulators under the 
Act and preserve the authority of each state to make 
determinations relating to the state's water quality standards 
and permitting.

                Background and Need for the Legislation

    The objective of the Federal Water Pollution Control Act 
(commonly known as the ``Clean Water Act'' or the ``CWA'') is 
to restore and maintain the chemical, physical, and biological 
integrity of the nation's waters. The primary mechanism for 
achieving this objective is the CWA's prohibition on the 
discharge into a waterbody of a pollutant without a National 
Pollutant Discharge Elimination System (``NPDES'') permit. 
NPDES permits are a basic regulatory tool of the CWA. The CWA 
also regulates, through a separate permit program, the 
discharge of dredged or fill material into waterbodies, 
including wetlands. The U.S. Environmental Protection Agency 
(``EPA'') has the basic responsibility for administering and 
enforcing most of the CWA, and the U.S. Army Corps of Engineers 
(``Corps'') has lead responsibility for administering the 
dredged or fill (section 404) permit program.
    The CWA calls on states to establish water quality 
standards for the waterbodies in their states. Water quality 
standards are to serve as a mechanism to establish goals for 
the quality of the Nation's waters and as a regulatory basis 
when standardized technology controls for point source 
discharges are determined to be inadequate to meet the water 
quality standards for a waterbody and water quality-based 
controls are to be developed. States are required to 
periodically (at least once each three years) review their 
water quality standards and, as appropriate, modify and adopt 
new standards. Water quality standards define the goals for a 
waterbody by designating its uses, setting water quality 
criteria to protect those uses, and establishing general policy 
provisions to protect water quality.
    The CWA does not contemplate a single, federally-led water 
quality program. Rather, Congress intended the states and EPA 
to implement the CWA as a federal-state partnership where the 
states and EPA act as co-regulators. The CWA established a 
system where states can receive EPA approval to implement water 
quality programs under state law, in lieu of federal 
implementation. These states are called ``authorized states.'' 
Under the CWA, 47 states and territories have been authorized 
to implement NPDES permits and enforce permits.
    Even when a state has the lead authority to implement the 
CWA's programs, EPA retains residual authority under the CWA to 
review certain actions by the state in implementing the CWA. 
For example, when a state proposes issuing an NPDES permit, EPA 
may review and object to it, and when a state adopts a new or 
revised water quality standard, the state is to submit such 
standards to EPA for review and approval/disapproval. EPA also 
retains authority to oversee and object to the Corps' issuance 
of section 404 permits for the discharge of dredged or fill 
material. Once EPA has approved a state standard or permit, or 
a Corps section 404 permit, the implementation and 
interpretation of that standard or permit is left to the state 
or the Corps, respectively.
    Recently, however, EPA has abandoned its proper role of 
approving state programs and ensuring that the standards that 
states adopt meet the minimum requirements of the CWA. Instead, 
EPA has decided to get involved in the implementation of state 
standards, and in second-guessing states with respect to how 
standards are to be implemented and even second-guessing EPA's 
own prior determinations that a state standard meets the 
minimum requirements of the CWA. EPA also has inserted itself 
into the states' and the Corps' permit issuance decisions and 
is second-guessing state and Corps permitting decisions.
    For example, in November 2010, EPA decided to federally 
promulgate water quality standards for nutrients in Florida, 
even though the state was well underway in developing its own, 
scientifically defensible nutrient standards for the state, and 
even though EPA had earlier approved Florida's nutrient 
criteria development plans. In addition, EPA has begun pressing 
states in other ways to adopt nutrient standards and implement 
other CWA limitations in NPDES discharge permits. EPA has 
reminded states of its position that states with authorized CWA 
permitting authority cannot issue permits in the face of an 
agency objection, and has threatened to hold up permits from 
issuance or withhold Federal financial assistance from states.
    EPA also formalized in 2009, with the Corps and the 
Department of Interior, an extra-regulatory review process, 
referred to as an ``Enhanced Coordination Process,'' of CWA 
section 404 dredged or fill permits for Appalachian region 
surface coal mining projects. This new process added a minimum 
of 60 days and potentially many months of review to the 
existing review process entirely outside of, and in addition 
to, the existing section 404 permitting procedures and 
timelines. At the end of this new process, only if issues 
identified by EPA are resolved in individual permit 
applications may those permits move forward to the Corps for 
processing and incorporation of new permit terms or conditions 
dictated by EPA during the process. If EPA's concerns remain 
unresolved at the close of the process period, EPA then may 
initiate ``veto'' procedures to prohibit the issuance of a 
permit. In practice, EPA has utilized the process to identify 
almost 250 coal-related section 404 permits currently pending 
with the Corps, and numerous permit applications remain 
indefinitely stalled.
    Further, in an unprecedented move and without alleging any 
violation of a permit, in September 2010, EPA initiated steps 
to revoke a section 404 permit issued two years earlier for a 
surface coal mining operation in West Virginia. The permit was 
for the Arch Coal, Mingo Logan, Inc., Spruce No. 1 Surface 
Mine. Prior to the issuance of the permit, Arch Coal had 
conducted an extensive 10-year environmental review, including 
a 1,600 page Environmental Impact Statement (EIS) in which EPA 
fully participated and agreed to all the terms and conditions 
included in the authorized permit. Subsequently, the mine 
operated pursuant to and in full compliance with the Section 
404 authorization. Nevertheless, EPA issued a determination 
that EPA withdraw the discharge authorization.
    By second-guessing and inserting itself into the states' 
and the Corps' standards and permitting decisions, EPA has 
upset the long-standing balance between federal and state 
partners in regulating the nation's waters, and undermined the 
system of cooperative federalism established under the CWA in 
which the primary responsibilities for water pollution control 
are allocated to the states. EPA's actions have created an 
atmosphere of regulatory uncertainty for the regulated 
community, and have had a chilling effect on the Nation's 
economy and job creation.
    The sponsors of H.R. 2018 introduced this legislation to 
halt these sorts of recent actions where EPA has gone beyond 
its appropriate role as the approver of programs and standards 
and instead has attempted to directly implement water quality 
programs, including standards and permits, in approved states, 
and second-guess the judgment of the water quality 
professionals in those states.
    H.R. 2018 aims to provide common sense protections for 
states' EPA-approved water quality standards and permitting 
authorities under the CWA. Without these protections, state 
regulation, as approved by EPA, can still be usurped by EPA, 
creating a climate for regulatory uncertainty and delays.

                          Legislative History

    On May 26, 2011, Committee on Transportation and 
Infrastructure Chairman John Mica introduced H.R. 2018, the 
``Clean Water Cooperative Federalism Act of 2011.'' On June 22, 
2011, the Committee on Transportation and Infrastructure met in 
open session to consider H.R. 2018, and ordered the bill 
reported favorably to the House by roll call vote with a quorum 
present. The vote was 35 yeas to 19 nays. An amendment was 
offered in Committee by Mrs. Capito, which was adopted by voice 
vote. The amendment made a clarifying change to the bill. The 
amendment stated that amendments that H.R. 2018 made to the 
Clean Water Act would apply to actions taken on or after the 
date of enactment of H.R. 2018, including actions that are 
pending or revised or new standards that are being promulgated 
as of such date of enactment. Mrs. Capito also offered and 
withdrew an amendment that would have required EPA to conduct 
an analysis of the impacts, on employment and economic 
activity, of any EPA action covered under the bill. Mr. Bishop 
offered an amendment that would have excluded, from coverage 
under the bill, any waters that EPA determines are a source for 
a public drinking water supply, provide flood protection for 
communities, are a valuable fish and wildlife habitat that 
provide benefits to the economy, or are coastal recreational 
waters. The amendment was defeated in a voice vote.

                                Hearings

    On May 5 and 11, 2011, the Subcommittee on Water Resources 
and Environment held hearings to receive testimony from state 
regulators, the mining industry, impacted businesses, 
economists, and EPA on EPA's surface mining policies and other 
related extra-regulatory activities.

                            Committee Votes

    Clause 3(b) of rule XIII of the House of Representatives 
requires each committee report to include the total number of 
votes cast for and against on each record vote on a motion to 
report and on any amendment offered to the measure or matter, 
and the names of those members voting for and against. During 
consideration of H.R. 2018, a total of one roll call vote was 
taken, which was on a final vote ordering the bill reported as 
amended. The bill, as amended, was reported to the House with a 
favorable recommendation after a record vote which was disposed 
of as follows:
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>

                      Committee Oversight Findings

    Pursuant to clause 3(c)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee on Transportation and 
Infrastructure's oversight findings and recommendations are 
reflected in this report.

                          Cost of Legislation

    Clause 3(d)(2) of rule XIII of the Rules of the House of 
Representatives does not apply where a cost estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974 has been timely submitted prior to the filing of the 
report and is included in the report. Such a cost estimate is 
included in this report.

               New Budget Authority and Tax Expenditures

    In compliance with clause 3(c)(2) of rule XIII of the Rules 
of the House of Representatives, the Committee adopts as its 
own the estimate of new budget authority, entitlement 
authority, or tax expenditures or revenues contained in the 
cost estimate prepared by the Director of the Congressional 
Budget Office pursuant to section 402 of the Congressional 
Budget Act of 1974, included below.

               Congressional Budget Office Cost Estimate

    With respect to the requirement of clause 3(c)(3) of rule 
XIII of the Rules of the House of Representatives and section 
402 of the Congressional Budget Act of 1974, the Committee has 
received the following cost estimate for H.R. 2018 from the 
Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, June 30, 2011.
Hon. John L. Mica,
Chairman, Committee on Transportation and Infrastructure,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2018, the Clean 
Water Cooperative Federalism Act of 2011.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                         Robert A. Sunshine
                              (For Douglas W. Elmendorf, Director).
    Enclosure.

H.R. 2018--Clean Water Cooperative Federalism Act of 2011

    H.R. 2018 would amend the Clean Water Act (CWA) to shift 
various regulatory powers concerning water treatment and the 
development of wetlands from the Environmental Protection 
Agency (EPA) to individual states. Major changes to the CWA 
would:
          
 Prohibit EPA from issuing a new water 
        quality standard in any case in which a state standard 
        has been approved by EPA, unless the state concurs with 
        EPA that the revised or new standard is necessary to 
        meet the requirement of the CWA;
          
 Prohibit EPA from withdrawing approval of a 
        state program for issuing water quality permits under 
        the CWA, or from limiting federal financial assistance 
        for a state permitting program on the basis that EPA 
        disagrees with the state regarding a standard that the 
        state has adopted and EPA has approved;
          
 Prohibit EPA from vetoing a permitting 
        decision by the Army Corp of Engineers involving 
        wetlands unless the state concurs with the veto;
          
 Allow states to assume and administer parts 
        of the CWA permitting program rather than all of it or 
        none of it, as is the case under current law; and
          
 Shorten the deadlines applicable to federal 
        agencies for making decisions on some permits to dredge 
        and fill wetlands.
    Many of the restrictions posed by this bill would affect 
some aspects of EPA's longstanding oversight and enforcement 
role related to state water quality established under the CWA. 
Currently, EPA usually spends more than $2 billion each year on 
activities related to the CWA (including grants to states). 
However, many of the activities that would be precluded under 
H.R. 2018 occur infrequently under current law and have not 
accounted for a significant fraction of the annual resources 
devoted to implementing the CWA. (For example, since the 
inception of the CWA in 1972, EPA has vetoed permitting 
decisions by the Army Corp of Engineers 13 times, and EPA has 
never withdrawn a state's delegated program.) Therefore, CBO 
estimates that enacting this legislation would not have a 
significant impact on EPA's budget to implement the CWA.
    Pay-as-you-go procedures do not apply to H.R. 2018 because 
enacting the bill would not affect direct spending or revenues.
    H.R. 2018 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. This estimate was approved by Theresa Gullo, Deputy 
Assistant Director for Budget Analysis.

                    Performance Goals and Objectives

    With respect to the requirement of clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives, the 
performance goals and objectives of this legislation are to 
reduce regulatory burdens caused by EPA's second-guessing and 
inserting itself into the states' standards and permitting 
decisions, by restoring the long-standing system of cooperative 
federalism established under the CWA in which the primary 
responsibilities for water pollution control are allocated to 
the states.

                          Advisory of Earmarks

    In compliance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 2018 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of rule XXI.

                       Federal Mandates Statement

    The Committee adopts as its own the estimate of Federal 
mandates prepared by the Director of the Congressional Budget 
Office pursuant to section 423 of the Unfunded Mandates Reform 
Act (Public Law 104-4).

                        Preemption Clarification

    Section 423 of the Congressional Budget Act of 1974 
requires the report of any Committee on a bill or joint 
resolution to include a statement on the extent to which the 
bill or joint resolution is intended to preempt state, local, 
or tribal law. The Committee states that H.R. 2018 does not 
preempt any state, local, or tribal law.

                      Advisory Committee Statement

    No advisory committee within the meaning of section 5(b) of 
the Federal Advisory Committee Act was created by this 
legislation.

                Applicability to the Legislative Branch

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act (Public Law 
104-1).

             Section-by-Section Analysis of the Legislation


Section 1. Short Title

    Section 1 of the bill designates the title of the bill as 
the ``Clean Water Cooperative Federalism Act of 2011.''

Section 2. State Water Quality Standards

    Section 2(a) of the bill (``State Water Quality 
Standards'') amends section 303(c)(4) of the CWA by restricting 
EPA's ability to issue a revised or new water quality standard 
for a pollutant whenever a state has adopted and EPA already 
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 the CWA.
    Section 303 of the CWA authorizes EPA to approve state 
standards and to establish federal standards if needed to meet 
the requirements of the Act. By restricting EPA's ability to 
override an existing state standard if it already has been 
approved by EPA, EPA as a co-regulator under the CWA would be 
forced to work together more closely, in a more cooperative 
fashion, with the state. H.R. 2018 would prevent unilateral 
actions by EPA that second-guess the decisions of the state 
regulatory agency.
    In opposing this bill, it has been implied by some that the 
states cannot be trusted and that only EPA can protect water 
quality. The Committee has heard from representatives of the 
water quality programs in many states about how they implement 
their approved (by EPA) water quality programs under the CWA, 
and H.R. 2018 would not create a ``race to the bottom'' whereby 
state regulators would abandon their mission to protect water 
quality. H.R. 2018 maintains EPA's proper and appropriate 
authority to approve state programs and to approve state water 
quality standards.
    Section 2(b) of the bill (``Federal Licenses and Permits'') 
amends section 401(a) of the CWA by prohibiting EPA from 
superseding a water quality certification granted by a state 
under CWA section 401, that a discharge will comply with the 
applicable water quality requirements of sections 301, 302, 
303, 306, and 307 of the CWA. Section 401 of the CWA vests in 
states alone the authority to decide whether or not a proposed 
Federal project or Federal action will adversely affect state 
water quality standards. Recently, EPA has suggested that they 
can override state determinations. This suggestion is 
unprecedented. H.R. 2018 restricts EPA's ability to carry out 
its threat to override state water quality certifications.
    Section 2(c) of the bill (``State NPDES Permit Programs'') 
amends section 402(c) of the CWA by prohibiting EPA from 
withdrawing approval of a state water quality permitting 
program under CWA section 402 (NPDES Permits), or from limiting 
Federal financial assistance for the state water quality 
permitting program, on the basis that EPA disagrees with the 
state regarding (a) a water quality standard that a state has 
adopted and EPA has approved under section 303(c), or (b) the 
implementation of any federal guidance that directs a re-
interpretation of the state's approved water quality standards.
    Section 2(d) of the bill (``Limitation on Authority of 
Administrator To Object to Individual Permits'') amends section 
402(d) of the CWA by prohibiting EPA from objecting to a 
state's issuance of an NPDES permit on the basis of (a) EPA's 
differing interpretation of an approved state water quality 
standard, or (b) the implementation of any federal guidance 
that directs a re-interpretation of the state's approved water 
quality standards.
    Under section 402 of the CWA, once EPA approves a state 
water quality program, then that program is the permitting 
authority under the CWA and states have the authority to issue 
permits that they determine will meet state water quality 
standards that have been approved by EPA. In certain cases, EPA 
has the ability to independently enforce a state-issued permit. 
However, EPA has not previously claimed the authority to invent 
its own interpretation of what state water quality standards 
mean and how they should be implemented. EPA is now threatening 
these actions.
    To prevent this from happening, H.R. 2018 limits EPA's 
authority to object to state-issued permits. The bill also 
limits EPA's authority to withdraw approval of a state NPDES 
permitting program, or from limiting federal financial 
assistance for the state water quality permitting program in 
the specified circumstances. These limitations apply only in 
situations where EPA is attempting to contradict a state 
agency's interpretation of its own water quality standards. 
EPA's recent attempts to rewrite state water quality standards 
are unprecedented. By limiting such over-reaching by EPA, H.R. 
2018 in no way affects EPA proper role in reviewing state 
permits.

Section 3. Permits for Dredged or Fill Material

    Section 3(a) of the bill (``Authority of EPA 
Administrator'') amends section 404(c) of the CWA by 
restricting EPA's ability to veto a Corps section 404 
permitting decision under CWA section 404(c) unless the state 
concurs with EPA's determination that the discharge of dredged 
or fill material will result in an unacceptable adverse effect 
on a state's waters, as described in CWA section 404(c)(1) (as 
amended).
    Under section 404(c) of the CWA, EPA has the authority to 
veto a Corps permit for the discharge of dredged or fill 
material to prevent unacceptable adverse effects on state 
waters. Recently, EPA has alleged unacceptable adverse impacts 
where a state agency (or the Corps) believes that none exist. 
H.R. 2018 would limit EPA's ability to override a state (or 
Corps) determination regarding whether there would be 
unacceptable adverse impacts on the state's waters.
    Section 3(b) of the bill (``State Permit Programs'') amends 
section 404(g)(1) of the CWA by allowing a state to assume and 
administer only parts of the section 404 permit program.
    CWA section 404(g) authorizes states to assume 
responsibility for implementing the CWA section 404 permit 
program, but they are generally only allowed to assume the 
entire program. Currently, only two states (New Jersey and 
Michigan) have assumed responsibility for section 404 
permitting in their states. Other states support a simplified 
and more flexible process for state assumption of the section 
404 permit program, including partial assumption of program 
responsibilities, in order to improve effectiveness and provide 
more efficient and effective permitting for applicants. H.R. 
2018 would make it easier for states to assume and administer 
only parts of the section 404 permit program.

Section 4. Deadlines for Agency Comments

    Paragraph (1) of Section 4 of the bill amends section 
404(m) of the CWA by shortening the deadline for the Fish and 
Wildlife Service to submit comments to the Corps on a proposed 
section 404 permit from 90 days to 30 days (or 60 days if 
additional time is requested).
    Paragraph (2) of Section 4 of the bill amends section 
404(q) of the CWA by clarifying that the deadline for EPA and 
other agencies to submit comments to the Corps on a proposed 
section 404 permit is 30 days (or 60 days if additional time is 
requested) after the date of receipt of the application for the 
section 404 permit.
    Under section 404(q) of the Clean Water Act, agencies are 
required to enter into memoranda of understanding (MOUs) to 
limit delays in the issuance of permits by the Corps. In 1992, 
EPA entered into an MOU with the Corps agreeing to limit its 
review time to 30 days, which could be extended to a maximum of 
60 days. H.R. 2018 holds EPA and other agencies to their 
obligation to prevent permitting delays.

Section 5. Applicability of Amendments

    Section 5 states that amendments that H.R. 2018 would make 
to the CWA shall apply to actions taken on or after the date of 
enactment of H.R. 2018, including actions that are pending or 
revised or new standards that are being promulgated as of such 
date of enactment. Section 5 makes it clear that H.R. 2018 
would apply to both pending and future permitting and standards 
actions.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

FEDERAL WATER POLLUTION CONTROL ACT

           *       *       *       *       *       *       *



TITLE III--STANDARDS AND ENFORCEMENT

           *       *       *       *       *       *       *



            WATER QUALITY STANDARDS AND IMPLEMENTATION PLANS

  Sec. 303. (a) * * *

           *       *       *       *       *       *       *

  (c)(1) * * *

           *       *       *       *       *       *       *

  (4)(A) The Administrator shall promptly prepare and publish 
proposed regulations setting forth a revised or new water 
quality standard for the navigable waters involved--
          [(A)] (i) if a revised or new water quality standard 
        submitted by such State under paragraph (3) of this 
        subsection for such waters is determined by the 
        Administrator not to be consistent with the applicable 
        requirements of this Act, or
          [(B)] (ii) in any case where the Administrator 
        determines that a revised or new standard is necessary 
        to meet the requirements of this Act.
[The Administrator shall promulgate]
  (B) The Administrator shall promulgate any revised or new 
standard under this paragraph not later than ninety days after 
he publishes such proposed standards, unless prior to such 
promulgation, such State has adopted a revised or new water 
quality standard which the Administrator determines to be in 
accordance with this Act.
  (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.

           *       *       *       *       *       *       *


                     TITLE IV--PERMITS AND LICENSES

                             CERTIFICATION

  Sec. 401. (a)(1) * * *

           *       *       *       *       *       *       *

  (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.

           *       *       *       *       *       *       *


            NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM

  Sec. 402. (a) * * *

           *       *       *       *       *       *       *

  (c)(1) * * *

           *       *       *       *       *       *       *

  (5) Limitation on Authority of Administrator to Withdraw 
Approval of State Programs.--The Administrator may not withdraw 
approval of a State program under paragraph (3) or (4), or 
limit Federal financial assistance for the State program, on 
the basis that the Administrator disagrees with the State 
regarding--
          (A) the implementation of any water quality standard 
        that has been adopted by the State and approved by the 
        Administrator under section 303(c); or
          (B) the implementation of any Federal guidance that 
        directs the interpretation of the State's water quality 
        standards.
  (d)(1) * * *

           *       *       *       *       *       *       *

  (5) The Administrator may not object under paragraph (2) to 
the issuance f a permit by a State on the basis of--
          (A) 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); or
          (B) the implementation of any Federal guidance that 
        directs the interpretation of the State's water quality 
        standards.

           *       *       *       *       *       *       *


                  PERMITS FOR DREDGED OR FILL MATERIAL

  Sec. 404. (a) * * *

           *       *       *       *       *       *       *

  [(c)] (c)(1) 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) 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).

           *       *       *       *       *       *       *

  (g)(1) [The Governor of any State desiring to administer its 
own individual and general permit program for the discharge] 
The Governor of any State desiring to administer its own 
individual and general permit program for some or all of the 
discharges of dredged or fill material into the navigable 
waters (other than those waters which are presently used, or 
are susceptible to use in their natural condition or by 
reasonable improvement as a means to transport interstate or 
foreign commerce shoreward to their ordinary high water mark, 
including all waters which are subject to the ebb and flow of 
the tide shoreward to their mean high water mark, or mean 
higher high water mark on the west coast, including wetlands 
adjacent thereto), within its jurisdiction may submit to the 
Administrator a full and complete description of the program it 
proposes to establish and administer under State law or under 
an interstate compact. In addition, such State shall submit a 
statement from the attorney general (or the attorney for those 
State agencies which have independent legal counsel), or from 
the chief legal officer in the case of an interstate agency, 
that the laws of such State, or the interstate compact, as the 
case may be, provide adequate authority to carry out the 
described program.

           *       *       *       *       *       *       *

  (m) Not later than the [ninetieth day] 30th day (or the 60th 
day if additional time is requested) after the date on which 
the Secretary notifies the Secretary of the Interior, acting 
through the Director of the United States Fish and Wildlife 
Service that (1) an application for a permit under subsection 
(a) of this section has been received by the Secretary, or (2) 
the Secretary proposes to issue a general permit under 
subsection (e) of this section, the Secretary of the Interior, 
acting through the Director of the United States Fish and 
Wildlife Service, shall submit any comments with respect to 
such application or such proposed general permit in writing to 
the Secretary.

           *       *       *       *       *       *       *

  [(q)] (q)(1) Not later than the one-hundred-eightieth day 
after the date of enactment of this subsection, the Secretary 
shall enter into agreements with the Administrator, the 
Secretaries of the Departments of Agriculture, Commerce, 
Interior, and Transportation, and the heads of other 
appropriate Federal agencies to minimize, to the maximum extent 
practicable, duplication, needless paperwork, and delays in the 
issuance of permits under this section. Such agreements shall 
be developed to assure that, to the maximum extent practicable, 
a decision with respect to an application for a permit under 
subsection (a) of this section will be made not later than the 
ninetieth day after the date the notice of such application is 
published under subsection (a) of this section.
  (2) The Administrator and the head of a department or agency 
referred to in paragraph (1) shall each submit any comments 
with respect to an application for a permit under subsection 
(a) or (e) not later than the 30th day (or the 60th day if 
additional time is requested) after the date of receipt of an 
application for a permit under that subsection.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    In my opinion, consideration of H.R. 2018, the Clean Water 
Cooperative Federalism Act of 2011, is ill-timed given the 
legislation's far-reaching implications for water quality and 
public health. Members of this committee have not had an 
opportunity to investigate many of the facts and circumstances 
related to the underlying issues this bill purports to address, 
including its potential consequences.
    While the Subcommittee on Water Resources and Environment 
has held three hearings on issues related to surface coal 
mining and nutrient water pollution, none of these hearings 
specifically examined the substantive changes to the Federal 
Water Pollution Control Act, more commonly known as the Clean 
Water Act, that are included in this legislation. In fact, the 
final of these three hearings, related to nutrient water 
pollution, was held two days after the Full Committee markup of 
H.R. 2018.
    This lack of careful consideration on the implications of 
this legislation is readily apparent. For example, while 
proponents argue that portions of this bill were drafted to 
address recent EPA actions on nutrient water quality criteria, 
the implications of this legislation extend beyond these issues 
and impact both Federal and State abilities to reduce the 
discharge of any pollutants under the Act.
    In my view, it is unfortunate that the Members of the 
Transportation and Infrastructure Committee were asked to vote 
on this legislation before the implications of H.R. 2018 had 
been thoroughly discussed and debated.
    In addition, according to a technical review of this 
legislation by the U.S. Environmental Protection Agency (EPA), 
which I am including as part of my dissenting views, the 
potential adverse effect of this legislation would be to 
``overturn almost 40 years of Federal legislation by preventing 
EPA from protecting public health and water quality.''
    According to EPA, H.R. 2018 fundamentally alters the 
current Federal/State relationship out med in the Clean Water 
Act and would hinder the federal government's ability to ensure 
there is an equitable level of protection provided to our 
nation's waters. The bill also prevents EPA, without State 
concurrence, from taking action to revise outdated State water 
quality standards.
    I am also concerned that any action to allow for less 
protective water quality standards will have an equivalent 
negative impact on the quality and protectiveness of pollution 
discharge permits, assessing whether waterbodies are impaired, 
establishing and implementing of Total Maximum Daily Load 
(TMDL) allocations; and certifying whether other federal 
permits or licenses comply with state water quality standards.
    This legislation makes a State the final arbiter of whether 
a permit, license, or standard is protective of water quality 
even if the resulting decision adversely impacts the water 
quality of neighboring states. Furthermore, EPA would be 
prohibited from resolving conflicting State decisions on 
protecting water quality, and States may be left with no 
recourse but to litigate conflicting standards in court.
    H.R. 2018 also inhibits Federal and State efforts to 
incorporate greater scientific information on the impacts of 
pollution to human health and the environment into pollution 
discharge limits, and prohibits Federal efforts to incorporate 
more stringent discharge limits into permit programs to address 
emerging contaminants and pollutants.
    My district in New York is separated from Connecticut by 
the Long Island Sound. Over time, the number of polluters in 
the area increased exponentially, killing fish, lobsters and 
imperiling the $5 billion of economic output that the region 
depends upon. Fortunately, the States decided that the Sound 
was impaired and proposed a revised, more restrictive water 
quality standard for nitrogen--a $5 billion bullet dodged.
    Had Connecticut, for example, decided against the revised 
standard despite all the scientific evidence for doing so, 
under current law EPA could step in and require the stricter 
standard. Under H.R. 2018, EPA would be stripped of that 
leverage, and polluters in Connecticut could continue to 
discharge excessive amounts of nitrogen into the Sound, leaving 
my constituents and the State of New York without any recourse 
under the Clean Water Act to stop them.
    I recently learned that Chicago, Illinois, is the only 
major metropolitan area that does not disinfect its treated 
sewage before dumping it into the Chicago River. Under this 
bill, EPA would have no authority to require the State to adopt 
a new standard for disinfection--as they did last month to 
protect the public from dangerous pathogens and bacteria.
    If this bill were to pass, individual States could decide 
that collective efforts to address the water quality 
impairments in the Chesapeake Bay, Puget Sound, or the Gulf of 
Mexico are unnecessarily restrictive or burdensome, and refuse 
to participate in a meaningful way towards restoration of these 
regional waterbodies. This go-it-alone approach flies in the 
face of science, common sense, and decades of experience 
implementing of the Clean Water Act.
    In my view, the far-reaching implications of this bill will 
have a significant adverse impact on our nation's clean water.
    I oppose this bill.

                                                 Timothy H. Bishop.
                   Summary: EPA Analysis of H.R. 2018

The bill would overturn almost 40 years of Federal legislation 
by preventing EPA from protecting public health and water 
quality.

    
  This bill would significantly undermine EPA's 
longstanding role under the Clean Water Act (CWA) to assure 
that state water quality standards protect clean water and 
public health and comply with the law. It would fundamentally 
disrupt the Federal-State relationship carefully crafted by the 
1972 CWA and would hinder the federal government's ability to 
ensure that states provide an equitable level of protection to 
their waters.
    
  This bill would prevent EPA from taking action 
without state concurrence to update outdated State standards 
even in the face of significant scientific information 
demonstrating threats to human health or aquatic life from 
emerging contaminants or other pollutants.
    
  This bill would unnecessarily delay EPA approval 
of new or revised State water quality standards, even where 
there are no concerns, and could lead to a higher rate of EPA 
disapprovals.

The bill would prevent EPA from providing its views on whether 
a proposed project that pollutes or even destroys lakes, 
streams, or wetlands would violate CWA standards.

    
  H.R. 2018 would prevent EPA from providing its 
views on whether a proposed project that pollutes or even 
destroys lakes, streams, or wetlands would violate CWA 
standards. It would also prevent EPA from taking necessary 
action under existing law to protect public health and water 
quality.
    
  Any action by individual States to allow for less 
protective water quality standards could affect the quality and 
protectiveness of state permits, Total Maximum Daily Loads, or 
the assessment of impaired waters. This would limit EPA's 
ability to ensure that the State's overall program complies 
with the CWA.
    
  This bill would limit EPA from meeting its 
current CWA responsibility to facilitate disputes between 
States as to whether permit conditions protect water quality in 
all affected States, which may leave states with no legal 
recourse but to litigate conflicting standards in court.

The bill would remove EPA's existing state coordination role 
and eliminate the careful Federal/State balance established in 
the current CWA.

    
  Removing EPA's program oversight role is likely 
to reduce the quality of state-issued permits and may likely 
increase the number of lawsuits by citizens and environmental 
groups. This would shift the dispute resolution process from a 
productive state-EPA dialogue toward adversarial litigation.
    
  Restricting EPA's authority to ensure that states 
implement their programs as approved may lead states to reduce 
the protection they provide to their waters, thereby leading to 
a ``race to the bottom'' that jeopardizes water quality and 
human health.
    
  H.R. 2018 would allow individual States to decide 
that collective efforts to address the water quality 
impairments in the Chesapeake Bay, Puget Sound, or the Gulf of 
Mexico are unnecessarily restrictive or burdensome, and refuse 
to participate in a meaningful way towards restoration of these 
regional waterbodies, potentially reversing decades of progress 
under the CWA.

The bill would prevent EPA from protecting communities from 
unacceptable adverse impacts to their water supplies and the 
environment caused by Federal permits.

    
  This legislation would remove EPA's ability to 
take action to protect communities from projects that would 
have unacceptable adverse effects to our nation's waters and 
public health. This would fundamentally disrupt the balance 
established by the original CWA in 1972--a law that carefully 
constructed complementary roles for EPA, the Corps, and states.
    
  EPA has only used its CWA Section 404(c) 
authority 13 times in the nearly 40-year history of the CWA.

This bill would substantively eliminate the opportunity for 
EPA, the federal government's expert on water quality, to 
comment on Federal permits impacting water quality and public 
health.

    
  This bill would greatly limit EPA's ability to 
provide constructive and expert comments to the Corps on 
Section 404 permit applications. The bill would reduce the 
quality of information available to EPA and the time available 
to review it, resulting in more frequent EPA objections based 
on lack of information and unnecessary delays in the permitting 
process.
    
  This provision would require the Corps to adopt, 
through regulation, a more complex permitting process, which 
would add work for the Corps and uncertainty for applicants.