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112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-683

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



 
                 PRESERVING RURAL RESOURCES ACT OF 2012

                                _______
                                

 September 20, 2012.--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. 4278]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 4278) to amend the Federal Water 
Pollution Control Act with respect to permit requirements for 
dredged or fill material, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                                CONTENTS

                                                                   Page
Purpose of the Legislation.......................................     2
Background and Need for Legislation..............................     2
Hearings.........................................................     5
Legislative History and Consideration............................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................    10
New Budget Authority and Tax Expenditures........................    10
Congressional Budget Office Cost Estimate........................    10
Performance Goals and Objectives.................................    11
Advisory of Earmarks.............................................    11
Federal Mandate Statement........................................    11
Preemption Clarification.........................................    11
Advisory Committee Statement.....................................    11
Applicability to the Legislative Branch..........................    11
Section-by-Section Analysis of Legislation.......................    11
Changes in Existing Law made by the Bill, as Reported............    12

                       Purpose of the Legislation

    The purpose of H.R. 4278 is to amend the Federal Water 
Pollution Control Act to clarify Congressional intent regarding 
exemptions from permit requirements for dredged or fill 
material.

                  Background and Need for Legislation


The Clean Water Act

    In 1972, Congress passed the Federal Water Pollution 
Control Act Amendments of 1972 (commonly known as the Clean 
Water Act or the CWA; 33 USC 1251 et seq.). The objective of 
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 jurisdictional waterbody of a pollutant 
without a National Pollutant Discharge Elimination System 
(NPDES) permit. (See CWA Sec. Sec. 301, 402.) 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 jurisdictional waterbodies, including 
wetlands. (See CWA Sec. 404.)
    The Environmental Protection Agency (EPA) has the basic 
responsibility for administering and enforcing most of the CWA, 
including the NPDES permit program, and the Army Corps of 
Engineers (Corps) has lead responsibility for administering the 
dredge or fill (wetlands) permit program under section 404 of 
the CWA. Under the wetlands permitting program, it is unlawful 
for a facility to discharge dredged or fill materials into a 
jurisdictional waterbody unless the discharge is authorized by 
and in compliance with a dredge or fill (section 404) permit 
issued by the Corps.
    Even though the Corps has the lead authority to implement 
the CWA's section 404 permit program, the EPA retains residual 
authority under the CWA to oversee, review, and object to the 
Corps' issuance of section 404 permits for the discharge of 
dredged or fill material into jurisdictional waters, to ensure 
that such permitting decisions meet the minimum requirements of 
the CWA. Once the EPA has approved a Corps section 404 permit, 
the implementation and interpretation of that permit is left to 
the Corps. Recently, however, the EPA has abandoned its proper 
role of generally overseeing the Corps' permitting program, and 
has inserted itself into the Corps' permit issuance process, 
often dictating policy for the Corps and second-guessing Corps' 
permitting decisions.
            Section 404 permitting exemptions
    In 1977, Congress made a deliberate policy choice to exempt 
ordinary farming, silviculture, ranching, and mining related 
activities (in CWA section 404(f)(1)) from the costly and 
burdensome requirements to obtain CWA permits when they are 
engaged in normal activities to prepare and maintain their 
land.
    Congress recognized that the expansive reach of the Act 
threatened to impose a 404 permit requirement on literally 
thousands upon thousands of parties engaged in normal farming, 
silviculture, ranching, or mining related activities whose land 
may contain some water. The exemptions provided ``for the first 
time statutory recognition that normal farming, ranching, and 
silviculture activities do not belong in this permit program,'' 
and ``reemphasize that Congress never intended these activities 
to be considered discharges of dredged or fill material.'' (See 
``A Legislative History of the Clean Water Act of 1977: A 
Continuation of the Legislative History of the Federal Water 
Pollution Control Act'' (1978) (hereinafter, ``1977 Legislative 
History''), at 351 (statement of Rep. Hammerschmidt).)
    Section 404(f)(1) provides that the following discharges of 
dredged or fill material are not prohibited by or otherwise 
subject to regulation under CWA section 404 (or under CWA 
sections 301(a) or 402):
          (A) from normal farming, silviculture, and ranching 
        activities such as plowing, seeding, cultivating, minor 
        drainage, harvesting for the production of food, fiber, 
        and forest products, or upland soil and water 
        conservation practices;
          (B) for the purpose of maintenance, including 
        emergency reconstruction of recently damaged parts, of 
        currently serviceable structures such as dikes, dams, 
        levees, groins, riprap, breakwaters, causeways, and 
        bridge abutments or approaches, and transportation 
        structures;
          (C) for the purpose of construction or maintenance of 
        farm or stock ponds or irrigation ditches, or the 
        maintenance of drainage ditches;
          (D) for the purpose of construction of temporary 
        sedimentation basins on a construction site which does 
        not include placement of fill material into the 
        navigable waters;
          (E) for the purpose of construction or maintenance of 
        farm roads or forest roads, or temporary roads for 
        moving mining equipment, where such roads are 
        constructed and maintained, in accordance with best 
        management practices, to assure that flow and 
        circulation patterns and chemical and biological 
        characteristics of the navigable waters are not 
        impaired, that the reach of the navigable waters is not 
        reduced, and that any adverse effect on the aquatic 
        environment will be otherwise minimized; and
          (F) resulting from any activity with respect to which 
        a State has an approved program under CWA section 
        208(b)(4), which meets the requirements of 
        subparagraphs (B) and (C) of such section (dealing with 
        programs for controlling the discharge or other 
        placement of dredged or fill material, as part of an 
        areawide waste treatment management planning process, 
        and certain specified circumstances where a state has 
        obtained approval to administer a permit program under 
        CWA section 404).
    While Congress intended to exempt ordinary farming, 
silviculture, ranching, or mining related activities from some 
of the requirements that are otherwise imposed on others who 
dredge or fill wetlands, Congress also intended for the 
exemptions to be applied reasonably. For example, during the 
debate in the House of Representatives on the conference report 
on the legislation that became the 1977 amendments to the CWA 
(H. Rept. 95-830), Congress recognized that some of these 
activities may necessarily result in incidental filling and 
minor harm to aquatic resources, and did not intend the 
exemptions to apply to discharges that convert extensive areas 
of water into dry land or extensively impede circulation or 
reduce the reach or size of a waterbody. (See, e.g., 1977 
Legislative History, at 420 (statement of Rep. Harsha).)
    As a result, the section 404(f)(1) permitting exemptions 
contain specific language to limit the scope of the particular 
exemptions. (See, e.g., 1977 Legislative History, at 420 
(statement of Rep. Harsha).) In addition, a ``recapture 
provision'' (which repeats some of the limitations contained in 
certain particular permitting exemptions) was added to the 
exemptions, in section 404(f)(2):
          ``(2) Any discharge of dredged or fill material into 
        the navigable waters incidental to any activity having 
        as its purpose bringing an area of the navigable waters 
        into a use to which it was not previously subject, 
        where the flow or circulation of navigable waters may 
        be impaired or the reach of such waters be reduced, 
        shall be required to have a permit under this 
        section.''
    The recapture provision and the limitations contained in 
the particular permitting exemptions were intended to provide 
reasonable limits on the scope of the section 404(f)(1) 
permitting exemptions, and not to nullify the exemptions. For 
example, during debate in the House of Representatives on the 
conference report on the legislation (H.R. 3199, Public Law 95-
217), Representative Harsha briefly discussed the provisions: 
``To assure that the extent of these exempted activities would 
not be misconstrued, paragraphs (f)(1)(D) and (E) and (f)(2) 
providecommon sense limitations to protect the chemical, 
biological, and physical integrity of the nation's waters.'' (See 1977 
Legislative History, at 420 (statement of Rep. Harsha) (emphasis 
added).) The exemptions and limitations reflect a delicate balance 
between protecting wetlands while allowing routine activities to go 
unimpeded.
            Implementing the Section 404 permitting exemptions and 
                    limitations
    For most of the past 35 years, the Corps (and the EPA, in 
its general oversight of the Corps' 404 permitting program) has 
generally interpreted the section 404 permitting exemptions and 
limitations, including the section 404(f)(2) recapture 
provision, reasonably as Congress intended. Recently, however, 
the Corps (and the EPA, as a result of inserting itself into 
the Corps' permit issuance process and dictating policy for the 
Corps) has begun to interpret the recapture provision so 
expansively and the section 404(f)(1) permitting exemptions so 
narrowly that the recapture provision now virtually swallows up 
the exemptions. Congress would not have included limitations in 
the individual permitting exemptions if the recapture provision 
was intended to be interpreted so broadly as to override and 
nullify the exemptions.
    Effectively, the Corps and the EPA now are interpreting the 
section 404(f)(1) exemptions to be almost entirely subsumed by 
the recapture provision in section 404(f)(2), with the result 
that, while Congress provided a regulatory exemption for normal 
farming, silviculture, ranching, and mining related activities 
in one paragraph of the CWA, the Corps and the EPA now are 
taking it away with the next paragraph. The Corps and the EPA 
cannot take away administratively what Congress has legislated.
    In response to the Agencies' recent actions, on March 28, 
2012, Representative Hurt introduced H.R. 4278, the Preserving 
Rural Resources Act of 2012, to clarify Congress' original 
intent to provide exemptions from the section 404 permitting 
process for normal farming, silviculture, ranching, and mining 
related activities by preserving these exemptions through 
circumscribing the scope of the recapture provision. By 
allowing each permitting exemption to stand on its own merits, 
without the Corps and the EPA negating their use through clever 
legal interpretations of the recapture provision, the 
legislation will allow members of the regulated community 
engaged in normal farming, silviculture, ranching, or mining 
related activities to shift their time and resources from 
wading through excessive and costly government bureaucracy and 
paperwork to utilizing the resources in place on their private 
property in ways that will expand production and create jobs.

                                Hearings

    No hearings were held on H.R. 4278.

                 Legislative History and Consideration

    On March 28, 2012, Representative Robert Hurt of Virginia 
introduced H.R. 4278, the Preserving Rural Resources Act of 
2012, a bill to clarify Congressional intent regarding 
exemptions from permit requirements for dredged or fill 
material. On August 1, 2012, the Committee on Transportation 
and Infrastructure met in open session to consider H.R. 4278, 
and ordered the bill reported favorably to the House by record 
vote with a quorum present. The vote was 30 yeas to 19 nays.
    An amendment was offered in Committee by Representative 
Edwards, which was defeated by record vote. The vote was 21 
yeas to 27 nays. The amendment would have exempted the bill 
from applying to waters where a discharge of dredged or fill 
material would have an adverse impact on aquatic and wild life 
related to commercial or recreational activities or the quality 
or availability of water for agricultural or other purposes.
    An amendment was offered in Committee by Representative 
Bishop of New York, which was defeated by record vote. The vote 
was 21 yeas to 28 nays. The amendment would have added several 
water infrastructure financing authorizations to the bill.
    An amendment was offered in Committee by Representative 
Napolitano, which was defeated in a voice vote with a quorum 
present. The amendment would have exempted the bill from 
applying to waters where a discharge of dredged or fill 
material would have the potential to increase the risk of 
flooding.

                            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. 4278, a total of three record votes were 
taken.
    Record votes were taken on amendments offered in Committee 
by Representative Edwards and Representative Bishop of New 
York. The Committee disposed of these two amendments by record 
vote as follows:


    The final recorded vote was to order the bill favorably 
reported to the House.


                      Committee Oversight Findings

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

               New Budget Authority and Tax Expenditures

    Clause 3(c)(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.

               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 enclosed cost estimate for H.R. 4278 from the 
Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 21, 2012.
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. 4278, the 
Preserving Rural Resources Act of 2012.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                              Douglas W. Elmendorf.
    Enclosure.

H.R. 4278--Preserving Rural Resources Act of 2012

    The Clean Water Act (CWA) authorizes the Environmental 
Protection Agency (EPA) and the Army Corps of Engineers to 
grant permits for discharging dredge or fill material into 
waters of the United States. Some activities, including those 
related to farming, forestry, and ranching, result in 
discharges that in some circumstances are exempt from such 
permit requirements. However, if those activities would impair 
the flow or circulation of water by filling wetlands, for 
example, then a CWA permit is required. H.R. 4278 would not 
require any of those activities to have a CWA permit under any 
circumstances.
    CBO estimates that enacting this legislation would not have 
a significant impact on the federal budget because it would not 
result in a significant change in workload for either EPA or 
the Corps. Under current law, the Corps is authorized to 
collect and spend fees for issuing permits under the CWA; 
therefore, pay-as-you-go procedures apply to H.R. 4278, 
However, CBO expects that the net change in collections and 
spending under the bill would be negligible.
    H.R. 4278 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 goal and objective of this legislation is to 
clarify Congressional intent regarding exemptions from permit 
requirements for dredged or fill material.

                          Advisory of Earmarks

    Pursuant to clause 9 of rule XXI of the Rules of the House 
of Representatives, the Committee is required to include a list 
of congressional earmarks, limited tax benefits, or limited 
tariff benefits as defined in clause 9(e), 9(f), and 9(g) of 
rule XXI of the Rules of the House of Representatives. No 
provision in the bill includes an earmark, limited tax benefit, 
or limited tariff benefit under clause 9(e), 9(f), or 9(g) of 
rule XXI.

                       Federal Mandate 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'' (P.L. 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. 4278 does not 
preempt any state, local, or tribal law.

                      Advisory Committee Statement

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

                  Applicability of 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 (P.L. 104-1).

               Section-by-Section Analysis of Legislation


Section 1. Short title

    Section 1 states that the Act may be cited as the 
``Preserving Rural Resources Act of 2012.''

Section 2. Permits for dredged or fill material

    H.R. 4278 amends section 404(f) of the Clean Water Act, 
which provides exemptions from the requirement to obtain a 
permit for the discharge of dredged or fill material. Section 2 
of the bill amends section 404(f) by:
          (1) Amending section 404(f)(1) by striking the 
        following introductory language of paragraph (1): 
        ``Except as provided in paragraph (2) of this 
        subsection, the discharge'', and inserting in its 
        place: ``The discharge''; and
          (2) Amending section 404(f)(2) by striking the 
        following language of paragraph (2): ``having as its 
        purpose bringing an area of the navigable waters into a 
        use to which it was not previously subject, where the 
        flow or circulation of navigable waters may be impaired 
        or the reach of such waters be reduced,'' and inserting 
        in its place: ``having as its purpose bringing an area 
        into a use not described in paragraph (1)''.
    The changes that section 2 of the bill makes to section 
404(f) of the CWA are intended to clarify Congress' original 
intent to provide reasonable exemptions from the section 404 
permitting process for normal farming, silviculture, ranching, 
and mining related activities by preserving these exemptions 
through circumscribing the scope of the recapture provision.
    Section 2 of the bill amends the recapture provision to 
allow normal farming, silviculture, ranching, and mining 
related activities to be conducted without the requirement to 
obtain a section 404 permit, as long as those activities do not 
result in bringing an area into a use not described in section 
404(f)(1). As long as an area is maintained in a use that is 
described in section 404(f)(1), and the limitations contained 
in the particular permitting exemption in 404(f)(1) are also 
met, a 404 permit would not be required.

         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 IV--PERMITS AND LICENSES

           *       *       *       *       *       *       *



                  PERMITS FOR DREDGED OR FILL MATERIAL

  Sec. 404. (a) * * *

           *       *       *       *       *       *       *

  (f)(1) [Except as provided in paragraph (2) of this 
subsection, the discharge] The discharge of dredge or fill 
material--
          (A) * * *

           *       *       *       *       *       *       *

  (2) Any discharge of dredged or fill material into the 
navigable waters incidental to any activity [having as its 
purpose bringing an area of the navigable waters into a use to 
which it was not previously subject, where the flow or 
circulation of navigable waters may be impaired or the reach of 
such waters be reduced,] having as its purpose bringing an area 
into a use not described in paragraph (1) shall be required to 
have a permit under this section.

           *       *       *       *       *       *       *


                            DISSENTING VIEWS

    Despite the misleading short title of this legislation, 
H.R. 4278 has far too little to do with ``preserving rural 
resources'' and too much to do with creating a massive Clean 
Water Act (Act) loophole for a variety of industrial-related 
activities, including industrial farming and timber-harvesting, 
ranching, and construction.
    To be clear, this legislation is not about protecting 
family farmers or preserving our nation's rural heritage. It is 
about overturning the delicate balance that was reached decades 
ago by this Committee between protecting the environment and 
allowing narrowly defined activities, including normal farming, 
ranching, and forestry activities, to continue because these 
activities cause little or no adverse effects on the 
environment.
    H.R. 4278, which has never been subject to a Congressional 
hearing, overturns 25 years of precedent that was set in motion 
in the 1977 Amendments to the Act. In that legislation (Pub. L. 
95-217), Congress reached a compromise that balanced the desire 
to enact far-reaching protections over the nation's waters with 
the practical, day-to-day operations of farmers, ranchers, 
forestry owners, and a host of other industrial sectors.
    That compromise, enacted as section 404(f) of the Act, was 
Congress' response to industry's concern that the comprehensive 
application of the Act might needlessly delay or complicate 
routine activities through the 404 permit process.
    As a result, section 404(f) created a list of ``activity-
based'' exemptions from the permitting requirements of section 
404, including exemptions for normal farming, forestry, and 
ranching activities, as well as activities related to certain 
construction and maintenance projects, such as levees, dams, 
causeways, and other transportation structures.
    Yet, this compromise also imposed significant limits on the 
section 404(f) activity-based exemptions. According to section 
404(f)(2), an activity-based exemption does not apply if the 
activity changes the use of the water, such as converting 
wetlands to dry land, or reduces the reach or impairs the flow 
of such waters. For example, if the activity ``converts'' 
navigable waters to dry land, that activity would not be exempt 
from the requirements of section 404, but may still be pursued 
under the normal permitting process.
    Unfortunately, the proponents of H.R. 4278 seek to undue 
this compromise under the guise of protecting family farmers 
and ranchers from regulatory overreach. However, as noted by 
outside stakeholders supporting H.R. 4278, the real intent of 
H.R. 4278 is to ensure that the Clean Water Act regulatory 
program simply does not apply to agricultural (or other) 
lands--in any instance--and regardless of any adverse impacts 
on downstream water quality or the related environment.
    This legislation would overturn decades of legislative and 
judicial precedent, including a 2002 decision of the U.S. 
Supreme Court,\1\ as well as create a massive legal-loophole 
that would exempt, from environmental review or mitigation, a 
litany of industrial or construction related activities, even 
if those activities destroy water quality or wetlands or have 
massive adverse downstream impacts.
---------------------------------------------------------------------------
    \1\See Borden Ranch Partnership v. United States Corps of 
Engineers, 537 U.S. 99 (2002).
---------------------------------------------------------------------------
    Under H.R. 4278, any activity that is even remotely related 
to farming, forestry, ranching, or a host of other 
construction-related activities would be exempt from the 
permitting requirements of the Clean Water Act, even if the 
activity involved the draining, filling, or destruction of 
existing wetlands.
    For example, if H.R. 4278 were enacted, businesses could 
destroy thousands of acres of cypress swamps along the Gulf 
Coast to make mulch for home gardens, without Federal oversight 
or permit review. These fragile wetlands, which provide 
critical hurricane protection for coastal communities of 
Louisiana, Alabama, and Florida, are coveted by the mulch and 
hardwood lumber industries, but have been sustained, to a great 
extent, because of the Act's permitting protections. However, 
if H.R. 4278 were enacted, these areas could be clear-cut, 
drained, and converted for other purposes (such as 
agriculture),\2\ destroying this historic Gulf Coast habitat, 
and exposing these communities to greater storm damage from 
coastal storms.
---------------------------------------------------------------------------
    \2\In Avoyelles Sportsmen's League, Inc., v. Marsh, the U.S. Fifth 
Circuit Court of Appeals ruled that the section 404(f) ``normal farming 
activities'' exemption did not apply where a developer proposed to 
clear cut 80,000 acres of cypress forests in Avoyelles Parish, 
Louisiana, and convert this land to agricultural use (specifically 
soybean production). See 715 F.2d 897, 926 (5th Cir. 1990). According 
to the Court, the ``purpose and effect of the landclearing activities . 
. . was to bring `an area of the navigable waters into a use to which 
it was not previously subject'. . . so that the property could be 
changed from a forest to a soybean field.'' If H.R. 4278 were enacted, 
it is conceivable that industry would argue this activity was exempt 
from section 404 of the Clean Water Act, because both uses could be 
contemplated as a ``use described in paragraph (1).''
---------------------------------------------------------------------------
    Similarly, if this bill were enacted, industrial farmers 
could plow under countless acres of wetlands and aquifer 
recharge areas, including areas specifically-created to 
mitigate potential downstream contamination, and not be 
required to undertake an environmental review or to address 
downstream impacts. Similarly, real estate developers could 
cause irreparable harm to the availability or quality of water 
in agricultural areas, such as California's Central Valley, 
without the existing environmental review provided by the 
Act.\3\
---------------------------------------------------------------------------
    \3\In Borden Ranch Partnership v. United States Army Corps of 
Engineers, a real estate developer was fined under the Clean Water Act 
for using bulldozers to ``radically alter[] the hydrological regime of 
the protected wetlands.'' See 261 F.3d 810, 816 (9th Cir. 2001). In 
overturning a legal challenge to the Clean Water Act fine, the U.S. 
Ninth Circuit Court of Appeals ruled that the section 404(f) ``normal 
farming activities'' exemption did not apply where a developer 
converted ``ranch land to orchards and vineyards [by] bringing the land 
``into a use to which it was not previously subject''. According to the 
Court, ``[although] the Corps cannot regulate a farmer who desires 
`merely to change from one wetland crop to another,' activities that 
require `substantial hydrological alterations' require a permit'' 
(citing United States v. Akers, 765 F.2d 814, 820 (9th Cir. 1986)). In 
2002, the U.S. Supreme Court upheld the decision of the Ninth Circuit. 
If H.R. 4278 were enacted, it is conceivable that industry would argue 
this activity was exempt from section 404 of the Clean Water Act, 
because both uses could be contemplated as a ``use described in 
paragraph (1).''
---------------------------------------------------------------------------
    Unfortunately, enactment of H.R. 4278 could have the exact 
opposite effect of its stated purpose of ``preserving rural 
resources''. By repealing existing Federal protections against 
activities that change the use of an area or impair or reduce 
the flow, circulation, or reach of a waterbody, developers 
could make an end-run around the Act by encouraging activities 
that drain or otherwise convert wetlands to dry-land (uplands). 
After a wetland's hydrology is removed, many of these areas 
could no longer be subject to Clean Water Act protections, and 
would be ripe for further development, including conversion 
from agricultural lands to commercial or residential 
development. It is not hard to imagine how, under H.R. 4278, 
unscrupulous developers could prey on unsuspecting farmers, by 
encouraging farmers to drain their fertile cropland in order to 
then convert the land to grow ``houses'' rather than crops. In 
short, while this legislation claims to ``preserve rural 
resources'', H.R. 4278, actually, may hasten the conversion of 
farmland to subdivisions.
    Proponents of H.R. 4278 have claimed this legislation is 
necessary to prevent the regulatory overreach of the Corps of 
Engineers (Corps) or the Environmental Protection Agency (EPA). 
Their claims are based on the argument that the Corps and EPA 
have limited, by regulatory action, existing statutory 
exemptions for ``normal farming, silviculture, and ranching 
activities,'' as well as an enumerated list of other 
industrial-related activities described in section 404(f)(1).
    For example, in a letter to the sponsor of H.R. 4278, an 
agricultural stakeholder group supporting this legislation 
highlighted anecdotal instances where ``EPA and the Corps have 
narrowed these important exemptions,'' including ``regulating 
the equipment farmers use to plow and regulating how deep they 
plow'' and ``preventing farmers and ranchers from rotating 
their use of private land between pasture, row crop and tree 
crop enterprises.''
    While industry may view these proposed activities as 
``normal'', as noted earlier, these activities can have a 
dramatic impact on the quality and availability of water in the 
region, and, therefore are appropriately covered by the 
existing ``recapture provisions'' of section 404(f)(2). Nothing 
in section 404 prevents industry from proposing such 
activities; however, approval for these activities in navigable 
waters is more appropriately pursued under the normal section 
404 review process.
    It is disingenuous for proponents of H.R. 4278 to suggest 
that Congress intended to include activities that adversely 
affect the circulation or flow of navigable waters or change 
the use of such waters when it approved section 404(f) in 1977. 
The legislative history, in fact, states exactly the opposite.
    For example, the 1977 Conference Report to accompany H.R. 
3199 (H. Report 95-830) describes section 404(f) as follows:

          The conference substitute also adds a new subsection 
        (f) which provides that the discharge of dredged or 
        fill material (1) from normal farming, silviculture, 
        and ranching activities, (2) for the purpose of 
        maintenance (including emergency reconstruction of 
        recently damaged parts) of currently serviceable 
        structures, (3) for the purpose of construction or 
        maintenance of farm or stock ponds or irrigation 
        ditches or the maintenance of drainage ditches, (4) for 
        the purpose of construction of temporary sedimentation 
        basins on a construction site which does not include 
        placement of fill material into the navigable waters, 
        (5) for the purpose of construction or maintenance of 
        farm roads or forest roads, or temporary roads for 
        moving mining equipment, where such roads are 
        constructed in accordance with best management 
        practices, to assure that flow and circulation patterns 
        and chemical and biological characteristics of the 
        navigable waters are not impaired, that the reach of 
        the navigable waters is not reduced, and that any 
        adverse effect on the aquatic environment will be 
        otherwise minimized, (6) resulting from any activity 
        with respect to which a State has an approved program 
        under section 208(b)(4) which meets the requirements of 
        subparagraph (B) and (C) of such section, is not 
        prohibited by or otherwise subject to regulation under 
        section 404 of 301(a) or 402 of this Act (except for 
        effluent standards or prohibitions under 307). This 
        subsection (f) shall not apply if the discharge of 
        dredged or fill material into the navigable waters is 
        incidental to any activity having as its purpose 
        bringing an area of the navigable waters into a use to 
        which it was not previously subject where the flow or 
        circulation of navigable waters may be impaired or the 
        reach of such waters be reduced. [emphasis added]

    During consideration of the Conference Report on the House 
floor, House conferee, Representative William Harsha (R-OH) 
noted that:

          New subsection (f) of section 404 provides that 
        Federal permits will not be required for narrowly 
        defined activities specifically identified in 
        paragraphs A-F that cause little or no adverse effects 
        either individually or cumulatively. To assure that the 
        extent of these exempted activities will not be 
        misconstrued, paragraphs (f)(1)(D) and (E) and (f)(2) 
        provide common sense limitations to protect the 
        chemical, biological, and physical integrity of the 
        Nation's waters. While it is understood that some of 
        these activities may necessarily result in incidental 
        filling and insignificant harm to aquatic resources, 
        these exemptions do not apply to discharges that 
        convert more extensive areas of water into dry land or 
        impede circulation or reduce the reach or size of the 
        water body. [emphasis added]
    In addition, during Senate consideration of the Conference 
Report, Senate conferee, Senator Malcom Wallop (R-WY) noted 
that:

          The conferees worked with the corps and the 
        Environmental Protection Agency to insure that the 
        amendments are carefully worded to provide protection 
        from harmful activities, while reducing unnecessary 
        government interference . . . The amendment clarifies 
        that normal farming, ranching and silvicultural 
        activities such as plowing, seeding, cultivating, and 
        harvesting, as well as minor drainage and soil and 
        water conservation practices performed in uplands, were 
        not intended to require 404 permits. The amendment also 
        excludes from permit requirements, discharges of 
        dredged or fill material in conjunction with [listed 
        404(f)(1)] activities that will cause little or no 
        adverse effects either individually or cumulatively. 
        [emphasis added]

    In our view, the scope of activities covered by section 
404(f) has been explicitly outlined in the legislative history 
of the 1977 Amendments to the Clean Water Act, and has been 
consistently implemented by the Corps and EPA, and subsequent 
rulings of the courts. The scope of activities that industry 
proposes as reasons for enactment of H.R. 4278 go well beyond 
those contemplated in the legislative history of section 
404(f)--namely activities that will cause little or no adverse 
effects on the Nation's waters, either individually or 
cumulatively.

               AMENDMENTS OFFERED DURING COMMITTEE MARKUP

Protection of hunting and fishing resources and irrigated agriculture
    During the markup of H.R. 4278, Representative Donna F. 
Edwards offered an amendment to restore existing Clean Water 
Act protections over dredge and fill activities that may be 
detrimental to certain commercial and recreational activities, 
including hunting and fishing, as well as to the quality or 
availability of water for agricultural or other commercial 
purposes.
    In short, this amendment recognizes that substantial 
economic benefits are provided by Clean Water Act protections 
over certain waterbodies and wetlands.
    For example, according to the U.S. Fish and Wildlife 
Service, approximately 87.5 million U.S. residents fished, 
hunted, or watched wildlife in 2006. They spent over $122 
billion in pursuing their recreational activities, contributing 
millions of jobs in industries and businesses that support 
wildlife-related recreation.
    Yet, under the provisions of H.R. 4278, the valuable waters 
and wetlands relied on as habitat for fish and wildlife could 
be destroyed with little or no Federal oversight or review. 
Accordingly, the economic benefits and enjoyment provided to 
millions of American families could be eliminated for the 
benefit of a few industrial sectors.
    Similarly, the warm waters of the Atlantic Ocean and the 
Gulf of Mexico host proactive fisheries for a wide variety of 
shellfish and finfish. In many instances, juvenile fish rely on 
coastal waters and habitat for survival, and for replenishing 
the vibrant commercial fishing industry in coastal waters. 
According to the National Oceanic and Atmospheric 
Administration, the U.S. seafood industry supports 
approximately one million full- and part-time jobs, nationwide, 
and generates annual sales in excess of $116 billion.
    Yet, under the provisions of H.R. 4278, the valuable 
coastal waters and habitat for both shellfish and finfish could 
be destroyed with little or no Federal oversight or review. 
Again, the economic benefits currently shared among commercial 
fishing interests could be decimated for the benefit of a few 
industrial sectors.
    Finally, this amendment recognizes impacts to one portion 
of a watershed can have adverse impacts on the availability and 
quality of waters in other areas, including waters used for 
irrigation or other commercial purposes.
    It would be ironic if H.R. 4278 was enacted without the 
Edwards amendment, because it would seem to say that, in fact, 
every man is for himself, and that even if an upstream activity 
would cause downstream farmers to lose their vital irrigation 
waters, supporters of this bill can accept this fact.
    As many portions of this nation are facing the worst 
drought in recent-memory, we hope that proponents of H.R. 4278 
can recognize that water is a finite resource, and needs to be 
conserved, and if possible, reused and shared for the greater 
good. Yet, as drafted, H.R. 4278 allows valuable water sources, 
including irrigation sources, to be destroyed with little or no 
Federal oversight or review. Again, the economic benefits 
currently shared among national agricultural interests could be 
decimated for the benefit of a few industrial sectors.
    Unfortunately, the amendment offered by Representative 
Edwards was defeated by a vote of 21-27.

Protecting communities from an increased risk of flooding

    During the markup of H.R. 4278, Representatives Grace F. 
Napolitano and Russ Carnahan offered an amendment to address 
another concern created by enactment of H.R. 4278--the 
increased likelihood of downstream flooding that will result 
from the boundless conversion and destruction of waters and 
wetland contemplated by this bill.
    Over the past decade, this nation has witnessed a dramatic 
increase in the frequency and severity of flooding events. Many 
of these flooding events can be directly traced back to 
continued development of floodplains, and either ineffective or 
improper mitigation of impacted watersheds.
    Under H.R. 4278, further development of natural storage 
areas, such as wetlands, will continue, and potentially at 
rates not seen since before enactment of the Clean Water Act.
    This is the wrong policy choice for a number of reasons, 
but most significantly for placing more people, more 
properties, and more livelihoods in harm's way of potential 
flooding events.
    The amendment offered by Representatives Napolitano and 
Carnahan would preserve existing Clean Water Act review of 
activities that may have significant individual and cumulative 
impacts on downstream communities. This amendment would require 
activities that have ``the potential to increase the risk of 
flooding, including flooding in a State other than the one in 
which the discharge will occur, or flooding that adversely 
impacts public infrastructure, including infrastructure related 
to transportation systems, flood damage reduction projects, or 
power generation'' to be pursued under the traditional 404 
permit process, and not be collectively exempt from all Clean 
Water Act review.
    This common sense amendment recognizes that activities 
which drain or fill waters and wetlands divert these waters 
(and any future excess precipitation runoff) somewhere else in 
the watershed--in essence, leaving these waters for some other 
downstream interests to address. If enacted as currently 
drafted, H.R. 4278 would force downstream landowners and 
communities to take corrective actions (and expend potentially 
significant additional resources) to avoid any increased risk 
of flooding from unconstrained upstream development. The 
reasons why proponents of H.R. 4278 seem to ignore the fact 
that this legislation increase the risk of downstream flooding 
are unknown, as, for decades, farmers, foresters, and ranchers 
have been able to carry out their professions under the 
existing Clean Water Act protections, while, at the same time, 
taking common sense steps to avoid adversely impacting the 
lives and livelihoods of the American public.
    As Ms. Napolitano noted during consideration of this 
amendment at markup, ``It would seem to me that in times when 
we are seeing increased extreme rain events that we need to 
ensure proposed development and land actions do not exacerbate 
flooding impacts to downstream districts.''
    The proponents of H.R. 4278 raise concerns about reducing 
the burdens on farmers, ranchers, and forestry operations; yet, 
they ignore the fact that this legislation simply shifts those 
burdens (and those flood waters) to average American families 
and the U.S. taxpayer--who will be forced to come in to provide 
disaster assistance when our towns and communities face greater 
flooding risks from this legislation.
    Unfortunately, the amendment offered by Representatives 
Napolitano and Carnahan was defeated by a voice vote.

Investing in water infrastructure: Job creation and protection of the 
        environment

    During the markup of H.R. 4278, Subcommittee Ranking Member 
Timothy H. Bishop offered an amendment to ensure that the 
Committee fulfills its responsibility to our constituents, our 
communities, and this Congress by reauthorizing the Clean Water 
State Revolving Fund, as well as implement several innovative 
financing mechanisms, similar to concepts supported by the 
Subcommittee Chairman, including an alternative water 
infrastructure proposal to better leverage scarce Federal 
dollars modeled on the popular Transportation Infrastructure 
Finance and Innovation Act (TIFIA) program for highways that 
was significantly expanded in the Moving Ahead for Progress in 
the 21st Century Act (MAP-21) (Pub L. 112-141).
    To be clear--the Bishop amendment is strictly an 
authorization of funds, and is subject to appropriations. Any 
impact on direct spending is offset, and, in the view of the 
Congressional Budget Office, it does not score. Any argument to 
the contrary is simply an excuse for inaction.
    For the past year, Committee Democrats have been working in 
good faith, with outside stakeholders and across the aisle, to 
reach consensus on the best way to renew the Federal commitment 
to funding wastewater infrastructure. That effort culminated in 
the introduction of bipartisan legislation, H.R. 3145, the 
Water Quality Protection and Job Creation Act of 2011, which 
was introduced in October of last year and is cosponsored by 
several members of this Committee from both sides of the aisle.
    In fact, more than 100 organizations strongly support H.R. 
3145, including the Associated General Contractors of America, 
the National Association of Clean Water Agencies, Food and 
Water Watch, the Water Environment Federation, the National 
League of Cities, the Water Infrastructure Network, the 
American Society of Civil Engineers, the National Construction 
Alliance II, and the American Public Works Association, among 
many others.
    This nation faces an impending water infrastructure crisis. 
EPA has estimated that there is over $300 billion in water 
infrastructure need across the nation with many experts arguing 
that the nation's need is far greater. In July 2012, during a 
Water Resources and Environment Subcommittee hearing about 
EPA's Integrated Planning process, Subcommittee members heard 
from several witnesses who reaffirmed that additional Federal 
investment in water infrastructure is desperately needed in 
their communities.
    So great is the importance of the Nation's water 
infrastructure that it has been recognized by this Committee in 
each of the last five Congresses, with bills to address the 
growing need supported by former-Chairmen Shuster, Young, and 
Oberstar.
    In addition, in the 111th and 110th Congresses, some of our 
Republican Committee colleagues opposed water infrastructure 
legislation because of philosophical concerns. The dissenting 
views on H.R. 1262 in the 111th Congress (H. Rept. 111-26):

          The reauthorization of the Clean Water State 
        Revolving Loan Fund (SRF) Program is an important step 
        towards addressing the needs of our critical and aging 
        wastewater infrastructure. We welcome the environmental 
        improvements that many provisions in this bill would 
        bring. However, while H.R. 1262 represents an important 
        step forward for clean water in many respects, it also 
        takes a significant step backwards by mandating and 
        expanding upon the past application of the Davis-Bacon 
        Act's prevailing wage requirements in the SRF program.

    Very similar concerns were also expressed in dissenting 
views to H.R. 720 in the 110th Congress (H. Rept. 110-30).
    However, last year Congress permanently resolved the Davis-
Bacon issue, in relation to water infrastructure, with 
enactment of the Consolidated Appropriations Act, 2012 (Pub. L. 
112-74).\4\
---------------------------------------------------------------------------
    \4\For fiscal year 2012 and each fiscal year thereafter, the 
requirements of section 513 of the Federal Water Pollution Control Act 
(33 U.S.C. 1372) shall apply to the construction of treatment works 
carried out in whole or in part with assistance made available by a 
State water pollution control revolving fund as authorized by title VI 
of that Act (33 U.S.C. 1381 et seq.), or with assistance made available 
under section 205(m) of that Act (33 U.S.C. 1285(m)), or both. See Pub. 
L. 112-74 (125 Stat. 1020).
---------------------------------------------------------------------------
    Therefore, the two concerns previously cited as impediments 
to advancing water infrastructure legislation--Davis-Bacon and 
cost--have been resolved. The Appropriations Act resolved the 
Davis-Bacon issue; and the Bishop amendment does not contain 
any direct spending that is not offset in the bill, is 
compliant with Pay-Go and Cut-Go and does not score. 
Furthermore, the Chairman has the authority to strike any 
provision of a bill, reported by the Committee that would cause 
a violation of the Budget Act or a Rule XXI Cut-Go Point-of-
Order.
    Just like the recently enacted surface transportation 
program (Pub. L. 112-141), the need for investing in wastewater 
infrastructure is enormous and reauthorizing and reforming 
programs to rebuild our crumbling wastewater infrastructure 
systems will create thousands of jobs. For every $1 billion 
invested in wastewater infrastructure, this nation can create 
as many as 33,000 jobs in communities across America while 
improving public health and the environment.
    Unfortunately, the Bishop amendment was defeated by a vote 
of 21-28. This defeat marks a missed opportunity, not only in 
terms of what this Committee should be doing to promote good-
paying jobs here at home, but also in meeting its long-standing 
obligation to protect the Nation's water resources and 
environment.

                               CONCLUSION

    Despite the claims to the contrary, H.R. 4278 marks a 
massive expansion of the 404(0(1) exemptions already provided 
for normal farming, forestry, and ranching activities as well 
as other industrial-related activities, allows for 
unconstrained dredging, drainage, and filling of wetlands and 
streams, and has a massive adverse impact on the nation's water 
quality and quantity, the protection of lives and livelihoods, 
and the overall condition of the nation's environment.
    Our predecessors in Congress reached a fair compromise 
between promoting economic activities, including normal 
farming-related activities, and protecting the environment. 
Yet, in a dramatic overreach, H.R. 4278 guts this existing 
balance to the economic benefit of a distinct group of outside 
stakeholders and industrial interests.
    For these reasons, we oppose enactment of H.R. 4278.

                                   Timothy H. Bishop.
                                   Grace F. Napolitano.
                                   Donna F. Edwards.