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114th Congress   }                                      {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                      {        114-93

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



 
              REGULATORY INTEGRITY PROTECTION ACT OF 2015

                                _______
                                

 April 27, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

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

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1732]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Transportation and Infrastructure, to whom 
was referred the bill (H.R. 1732) to preserve existing rights 
and responsibilities with respect to waters of the United 
States, 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 Legislation...........................................     4
Background and Need for the Legislation..........................     4
Hearings.........................................................    13
Legislative History and Consideration............................    14
Committee Votes..................................................    14
Committee Oversight Findings.....................................    18
New Budget Authority and Tax Expenditures........................    18
Congressional Budget Office Cost Estimate........................    18
Performance Goals and Objectives.................................    19
Advisory of Earmarks.............................................    20
Duplication of Federal Programs..................................    20
Disclosure of Directed Rulemakings...............................    20
Federal Mandates Statement.......................................    20
Preemption Clarification.........................................    20
Advisory Committee Statement.....................................    20
Applicability to the Legislative Branch..........................    20
Section-by-Section Analysis of the Legislation...................    21
Changes in Existing Law Made by the Bill, as Reported............    27

    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 ``Regulatory Integrity Protection Act of 
2015''.

SEC. 2. WITHDRAWAL OF EXISTING PROPOSED RULE.

  Not later than 30 days after the date of enactment of this Act, the 
Secretary of the Army and the Administrator of the Environmental 
Protection Agency shall withdraw the proposed rule described in the 
notice of proposed rule published in the Federal Register entitled 
``Definition of `Waters of the United States' Under the Clean Water 
Act'' (79 Fed. Reg. 22188 (April 21, 2014)) and any final rule based on 
such proposed rule (including RIN 2040-AF30).

SEC. 3. DEVELOPMENT OF NEW PROPOSED RULE.

  (a) In General.--The Secretary of the Army and the Administrator of 
the Environmental Protection Agency shall develop a new proposed rule 
to define the term ``waters of the United States'' as used in the 
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.).
  (b) Development of New Proposed Rule.--In developing the new proposed 
rule under subsection (a), the Secretary and the Administrator shall--
          (1) take into consideration the public comments received on--
                  (A) the proposed rule referred to in section 2;
                  (B) the accompanying economic analysis of the 
                proposed rule entitled ``Economic Analysis of Proposed 
                Revised Definition of Waters of the United States'' 
                (dated March 2014); and
                  (C) the report entitled ``Connectivity of Streams & 
                Wetlands to Downstream Waters: A Review & Synthesis of 
                Scientific Evidence'' (EPA/600/R-14/475F; dated January 
                2015);
          (2) jointly consult with and solicit advice and 
        recommendations from representative State and local officials, 
        stakeholders, and other interested parties on how to define the 
        term ``waters of the United States'' as used in the Federal 
        Water Pollution Control Act; and
          (3) prepare a regulatory proposal that will, consistent with 
        applicable rulings of the United States Supreme Court, 
        specifically identify those waters covered under, and those 
        waters not covered under, the Federal Water Pollution Control 
        Act--
                  (A) taking into consideration--
                          (i) the public comments referred to in 
                        paragraph (1); and
                          (ii) the advice and recommendations made by 
                        the State and local officials, stakeholders, 
                        and other interested parties consulted under 
                        this section; and
                  (B) incorporating the areas and issues where 
                consensus was reached with the parties.
  (c) Federalism Consultation Requirements.--As part of consulting with 
and soliciting advice and recommendations from State and local 
officials under subsection (b), the Secretary and the Administrator 
shall--
          (1) seek to reach consensus with the State and local 
        officials on how to define the term ``waters of the United 
        States'' as used in the Federal Water Pollution Control Act;
          (2) provide the State and local officials with notice and an 
        opportunity to participate in the consultation process under 
        subsection (b);
          (3) consult with State and local officials that represent a 
        broad cross-section of regional, economic, policy, and 
        geographic perspectives in the United States;
          (4) emphasize the importance of collaboration with and among 
        the State and local officials;
          (5) allow for meaningful and timely input by the State and 
        local officials;
          (6) recognize, preserve, and protect the primary rights and 
        responsibilities of the States to protect water quality under 
        the Federal Water Pollution Control Act, and to plan and 
        control the development and use of land and water resources in 
        the States;
          (7) protect the authorities of State and local governments 
        and rights of private property owners over natural and manmade 
        water features, including the continued recognition of Federal 
        deference to State primacy in the development of water law, the 
        governance of water rights, and the establishment of the legal 
        system by which States mediate disputes over water use;
          (8) incorporate the advice and recommendations of the State 
        and local officials regarding matters involving differences in 
        State and local geography, hydrology, climate, legal 
        frameworks, economies, priorities, and needs; and
          (9) ensure transparency in the consultation process, 
        including promptly making accessible to the public all 
        communications, records, and other documents of all meetings 
        that are part of the consultation process.
  (d) Stakeholder Consultation Requirements.--As part of consulting 
with and soliciting recommendations from stakeholders and other 
interested parties under subsection (b), the Secretary and the 
Administrator shall--
          (1) identify representatives of public and private 
        stakeholders and other interested parties, including small 
        entities (as defined in section 601 of title 5, United States 
        Code), representing a broad cross-section of regional, 
        economic, and geographic perspectives in the United States, 
        which could potentially be affected, directly or indirectly, by 
        the new proposed rule under subsection (a), for the purpose of 
        obtaining advice and recommendations from those representatives 
        about the potential adverse impacts of the new proposed rule 
        and means for reducing such impacts in the new proposed rule; 
        and
          (2) ensure transparency in the consultation process, 
        including promptly making accessible to the public all 
        communications, records, and other documents of all meetings 
        that are part of the consultation process.
  (e) Timing of Federalism and Stakeholder Consultation.--Not later 
than 3 months after the date of enactment of this Act, the Secretary 
and the Administrator shall initiate consultations with State and local 
officials, stakeholders, and other interested parties under subsection 
(b).
  (f) Report.--The Secretary and the Administrator shall prepare a 
report that--
          (1) identifies and responds to each of the public comments 
        filed on--
                  (A) the proposed rule referred to in section 2;
                  (B) the accompanying economic analysis of the 
                proposed rule entitled ``Economic Analysis of Proposed 
                Revised Definition of Waters of the United States'' 
                (dated March 2014); and
                  (C) the report entitled ``Connectivity of Streams & 
                Wetlands to Downstream Waters: A Review & Synthesis of 
                Scientific Evidence'' (EPA/600/R-14/475F; dated January 
                2015);
          (2) provides a detailed explanation of how the new proposed 
        rule under subsection (a) addresses the public comments 
        referred to in paragraph (1);
          (3) describes in detail--
                  (A) the advice and recommendations obtained from the 
                State and local officials consulted under this section;
                  (B) the areas and issues where consensus was reached 
                with the State and local officials consulted under this 
                section;
                  (C) the areas and issues of continuing disagreement 
                that resulted in the failure to reach consensus; and
                  (D) the reasons for the continuing disagreements;
          (4) provides a detailed explanation of how the new proposed 
        rule addresses the advice and recommendations provided by the 
        State and local officials consulted under this section, 
        including the areas and issues where consensus was reached with 
        the State and local officials;
          (5) describes in detail--
                  (A) the advice and recommendations obtained from the 
                stakeholders and other interested parties, including 
                small entities, consulted under this section about the 
                potential adverse impacts of the new proposed rule and 
                means for reducing such impacts in the new proposed 
                rule; and
                  (B) how the new proposed rule addresses such advice 
                and recommendations;
          (6) provides a detailed explanation of how the new proposed 
        rule--
                  (A) recognizes, preserves, and protects the primary 
                rights and responsibilities of the States to protect 
                water quality and to plan and control the development 
                and use of land and water resources in the States; and
                  (B) is consistent with the applicable rulings of the 
                United States Supreme Court regarding the scope of 
                waters to be covered under the Federal Water Pollution 
                Control Act; and
          (7) provides comprehensive regulatory and economic impact 
        analyses, utilizing the latest data and other information, on 
        how definitional changes in the new proposed rule will impact, 
        directly or indirectly--
                  (A) each program under the Federal Water Pollution 
                Control Act for Federal, State, and local government 
                agencies; and
                  (B) public and private stakeholders and other 
                interested parties, including small entities, regulated 
                under each such program.
  (g) Publication.--
          (1) Federal register notice.--Not later than 3 months after 
        the completion of consultations with and solicitation of 
        recommendations from State and local officials, stakeholders, 
        and other interested parties under subsection (b), the 
        Secretary and the Administrator shall publish for comment in 
        the Federal Register--
                  (A) the new proposed rule under subsection (a);
                  (B) a description of the areas and issues where 
                consensus was reached with the State and local 
                officials consulted under this section; and
                  (C) the report described in subsection (f).
          (2) Duration of review.--The Secretary and the Administrator 
        shall provide not fewer than 180 days for the public to review 
        and comment on--
                  (A) the new proposed rule under subsection (a);
                  (B) the accompanying economic analysis for the new 
                proposed rule; and
                  (C) the report described in subsection (f).
  (h) Procedural Requirements.--Subchapter II of chapter 5, and chapter 
7, of title 5, United States Code (commonly known as the 
``Administrative Procedure Act'') shall apply to the development and 
review of the new proposed rule under subsection (a).
  (i) State and Local Officials Defined.--In this section, the term 
``State and local officials'' means elected or professional State and 
local government officials or their representative regional or national 
organizations.

                       PURPOSE OF THE LEGISLATION

    The purpose of H.R. 1732 is to preserve existing rights and 
responsibilities under the Federal Water Pollution Control Act 
with respect to Waters of the United States by requiring the 
U.S. Environmental Protection Agency (EPA) and the U.S. Army 
Corps of Engineers (Corps) (collectively, the ``Agencies'') to 
withdraw a proposed rule the Agencies have developed regarding 
the scope of federal jurisdiction under the Federal Water 
Pollution Control Act, consult with state and local officials, 
stakeholders, and other interested parties on how to identify 
those waters covered under, and those waters not covered under, 
the Federal Water Pollution Control Act, and to develop a new 
proposed rule after taking into consideration all of the 
comments received on the original proposed rule and the advice 
and recommendations made by the state and local officials, 
stakeholders, and other interested parties that were consulted.

                BACKGROUND AND NEED FOR THE LEGISLATION

Background

    Congress enacted the Federal Water Pollution Control Act 
Amendments of 1972 (commonly known as the ``Clean Water Act'' 
or ``CWA'') with the objective to ``restore and maintain the 
chemical, physical, and biological integrity of the Nation's 
waters.'' (See CWA Sec. 101(a); 33 U.S.C. Sec. 1251.) In 
enacting the CWA, it was the ``policy of the Congress to 
recognize, preserve, and protect the primary responsibilities 
and rights of states to prevent, reduce, and eliminate 
pollution, to plan the development and use (including 
restoration, preservation, and enhancement) of land and water 
resources, and to consult with the [EPA] Administrator in the 
exercise of his authority under this Act.'' (See id. at 
Sec. 101(b).)
    The Clean Water Act prohibits the discharge of any 
pollutant by any person, unless in compliance with one of the 
enumerated permitting provisions in the Act. The two permitting 
authorities in the CWA are section 402 (the National Pollutant 
Discharge Elimination System, or ``NPDES''), for discharges of 
pollutants from point sources, and section 404, for discharges 
of dredged or fill material. While the goals of the Clean Water 
Act speak to the restoration and maintenance of the ``Nation's 
waters,'' both section 402 and 404 govern discharges to 
``navigable waters,'' which are defined in section 502(7) of 
the CWA as ``the waters of the United States, including the 
territorial seas.''
    EPA has the basic responsibility for implementing the CWA, 
and is responsible for implementing the NPDES program under 
section 402. Under the NPDES program, it is unlawful for a 
point source to discharge pollutants into ``navigable waters,'' 
unless the discharge is authorized by and in compliance with an 
NPDES permit issued by EPA (or by a state, under a comparable 
approved state program).
    EPA shares responsibility with the Corps for implementing 
section 404 of the CWA. Under this permitting program, it is 
unlawful to discharge dredged or fill materials into 
``navigable waters,'' unless the discharge is authorized by and 
in compliance with a dredge or fill (section 404) permit issued 
by the Corps (or by a state, under a comparable approved state 
program).
    In enacting the CWA, Congress intended the states and EPA 
to implement the Act as a federal-state partnership, where 
these parties act as co-regulators. The CWA established a 
system where EPA and the Corps provide a federal regulatory 
floor, from which states can receive approval from EPA to 
administer state water quality programs pursuant to state law, 
at equivalent or possibly more stringent levels, in lieu of 
federal implementation. Currently, 46 states have approved-
NPDES programs under section 402 of the Act, and two states 
have approved-dredge or fill programs under section 404 of the 
Act.

Historical administrative interpretations of federal jurisdiction under 
        the Clean Water Act

    The Clean Water Act claims federal jurisdiction over the 
Nation's ``navigable waters,'' which are defined in the Act as 
``the waters of the United States, including the territorial 
seas.'' (CWA Sec. 502(7); 33 U.S.C. Sec. 1362.)
    Neither the statute nor the legislative history on the 
definition of ``navigable waters'' in the CWA definitively 
describes the outer reaches of jurisdiction under the Act. As a 
result, EPA and the Corps have promulgated over the years 
several sets of rules interpreting the agencies' jurisdiction 
over ``waters of the United States'' and the corresponding 
scope of CWA authority. The latest amendments to those rules 
were promulgated in 1993.
    Because the use of the term ``navigable waters,'' and 
hence, ``waters of the United States,'' affects both sections 
402 and 404 of the CWA, as well as related water quality 
management provisions under the CWA, the existing regulations 
defining the term ``waters of the United States'' are found in 
several sections of the Code of Federal Regulations.
    The current regulatory definition of the term ``waters of 
the United States'' is:
``Waters of the United States'' or ``waters of the U.S.'' means:
    (a) All waters which are currently used, were used in the 
past, or may be susceptible to use in interstate or foreign 
commerce, including all waters which are subject to the ebb and 
flow of the tide;
    (b) All interstate waters, including interstate 
``wetlands;''
    (c) All other waters such as intrastate lakes, rivers, 
streams (including intermittent streams), mudflats, sandflats, 
``wetlands,'' sloughs, prairie potholes, wet meadows, playa 
lakes, or natural ponds the use, degradation, or destruction of 
which would affect or could affect interstate or foreign 
commerce including any such waters:
          (1) Which are or could be used by interstate or 
        foreign travelers for recreational or other purposes;
          (2) From which fish or shellfish are or could be 
        taken and sold in interstate or foreign commerce; or
          (3) Which are used or could be used for industrial 
        purposes by industries in interstate commerce;
    (d) All impoundments of waters otherwise defined as waters 
of the United States under this definition;
    (e) Tributaries of waters identified in paragraphs (a) 
through (d) of this definition;
    (f) The territorial sea; and
    (g) ``Wetlands'' adjacent to waters (other than waters that 
are themselves wetlands) identified in paragraphs (a) through 
(f) of this definition.
    Waste treatment systems, including treatment ponds or 
lagoons designed to meet the requirements of CWA (other than 
cooling ponds as defined in 40 CFR 423.11(m) which also meet 
the criteria of this definition) are not waters of the United 
States. This exclusion applies only to manmade bodies of water 
which neither were originally created in waters of the United 
States (such as disposal area in wetlands) nor resulted from 
the impoundment of waters of the United States.
    Waters of the United States do not include prior converted 
cropland. Notwithstanding the determination of an area's status 
as prior converted cropland by any other federal agency, for 
the purposes of the Clean Water Act, the final authority 
regarding Clean Water Act jurisdiction remains with EPA.
    (See, e.g., 33 CFR Sec. 328.3; 40 CFR Sec. 122.2; 40 CFR 
Sec. 230.3 for the definition in the agencies' regulations.)

Supreme Court cases on Clean Water Act jurisdiction

    There has been a substantial amount of litigation in the 
federal courts on the scope of CWA jurisdiction over the past 
four decades, including three U.S. Supreme Court cases:
     United States v. Riverside Bayview Homes, Inc., 
474 U.S. 121 (1985) (``Riverside Bayview'').
     Solid Waste Association of Northern Cook County v. 
United States Corps of Engineers, 531 U.S. 159 (2001) (also 
known as ``SWANCC'').
     The combined cases of Rapanos v. United States and 
Carabell v. U.S. Army Corps of Engineers, 547 U.S. 715 (2006) 
(collectively referred to as ``Rapanos'').
    The Supreme Court, in the Riverside Bayview case, upheld 
the Corps' jurisdiction over wetlands adjacent to 
jurisdictional waters, and held that such wetlands were 
``waters of the United States'' within the meaning of the Clean 
Water Act. The Court could not say the Corps' conclusion that 
the adjacent wetlands were inseparably bound up with the 
jurisdictional waters is unreasonable.
    However, in both the SWANCC and Rapanos case decisions, the 
Supreme Court began to articulate limits to federal 
jurisdiction under the CWA regarding the scope of what are 
considered ``waters of the United States.'' Some view these 
cases as signaling a narrowing of the interpreted scope of CWA 
jurisdiction over ``waters of the United States'' because the 
Supreme Court, in these cases, held in favor of the 
petitioners, who had asserted that there are limits to federal 
jurisdiction under the CWA. However, the court did not clearly 
define what those jurisdictional limits are.
    In the SWANCC case, the Supreme Court overturned the 
authority of the Corps to regulate intrastate, isolated waters, 
including wetlands (here, an abandoned sand and gravel pit with 
excavation trenches that had evolved into seasonal and 
permanent ponds) based solely on the presence of migratory 
birds. The Court found nothing approaching a clear statement 
from Congress that it intended CWA jurisdiction under section 
404(a) to reach an abandoned sand and gravel pit such as the 
ones involved in that case, and noted that there were 
significant constitutional questions raised by the Corps' 
application of their regulations. The Court also noted that 
permitting the Corps to claim federal jurisdiction over ponds 
and mudflats falling within the migratory bird rule would 
result in a significant impingement of the states' traditional 
and primary power over land and water use.
    In the Rapanos case, the Supreme Court again questioned the 
scope of CWA jurisdictional authority. However, the Court was 
unable to agree on the proper test for determining the extent 
to which federal jurisdiction applies to wetlands. The Court 
issued a 4-1-4 opinion that did not produce a clear, legal 
standard on determining jurisdiction under the CWA. Instead, 
the Rapanos decision produced three distinct opinions on the 
appropriate scope of federal authorities under the CWA: (1) the 
plurality opinion, written by Justice Scalia, provided a 
``relatively permanent/flowing waters'' test, supported by four 
justices; (2) Justice Kennedy's opinion, which concurred with 
Justice Scalia's opinion, but proposed a ``significant nexus'' 
test, and (3) Justice Stevens' dissenting opinion, supported by 
the remaining justices, which advocated for maintenance of 
existing EPA and Corps authority over waters and wetlands.

Administrative interpretations of the Supreme Court cases

    Following the SWANCC and Rapanos decisions, EPA and the 
Corps issued several guidance documents interpreting how the 
Agencies would implement the Supreme Court decisions.
    In January 2001, immediately following the Supreme Court's 
decision in SWANCC, the Agencies published a guidance 
memorandum that outlined the agencies' legal analysis of the 
impacts of the SWANCC decision. (See Supreme Court Ruling 
Concerning CWA jurisdiction over Isolated Waters (Jan. 19, 
2001).)
    In January 2003, the Agencies published a revised interim 
guidance memorandum that amended the agencies' views on the 
state of the law after the SWANCC case as to what waterbodies 
are subject to federal jurisdiction under the CWA. (See 68 Fed. 
Reg. 1991 (Jan. 15, 2003).)
    Subsequent to the Supreme Court decision in Rapanos, the 
Agencies developed interpretative guidance on how to implement 
the Rapanos decision. In June 2007, the Agencies issued a 
preliminary guidance memorandum aimed at answering questions 
regarding CWA regulatory authority over wetlands and streams 
raised by the Supreme Court in Rapanos. (See Joint Legal 
Memorandum, Clean Water Act Jurisdiction Following the U.S. 
Supreme Court's Decision in Rapanos v. United States & Carabell 
v. United States (June 5, 2007).)
    Then, in December 2008, the Agencies issued an updated 
guidance memorandum on the terms and procedures to be used to 
determine the extent of federal jurisdiction over waters, 
building upon the previous guidance issued in June 2007. (See 
Updated Joint Legal Memorandum, Clean Water Act Jurisdiction 
Following the U.S. Supreme Court's Decision in Rapanos v. 
United States & Carabell v. United States (Dec. 2, 2008).)
    The December 2008 guidance provided that CWA jurisdiction 
over navigable waters would be asserted if such waters meet 
either the Scalia (``relatively permanent waters'') or Kennedy 
(``significant nexus'') tests. According to the 2008 guidance, 
individual permit applications must, on a case-by-case basis, 
undergo a jurisdictional determination, based on either the 
Scalia or Kennedy tests.
    The 2003 and 2008 guidance remains in effect today.

The Agencies' proposed revised Clean Water Act guidance

    In 2010, the Agencies drafted new joint guidance to 
describe their latest views of federal regulatory jurisdiction 
over U.S. waters under the CWA and to replace the Agencies' 
2003 and 2008 guidance.
    The proposed CWA jurisdiction guidance underwent several 
months of interagency regulatory review before being released 
in May 2011, when the Agencies published, in the Federal 
Register, a joint notice announcing the availability of the 
guidance. (76 Fed. Reg. 24,479 (May 2, 2011) (notice entitled 
EPA and Army Corps of Engineers Guidance Regarding 
Identification of Waters Protected by the Clean Water Act).)
    The proposed guidance purported to describe how the 
Agencies would identify waters subject to jurisdiction under 
the CWA and implement the Supreme Court's decisions in SWANCC 
and Rapanos concerning the extent of waters covered by the CWA. 
The Agencies noted, among other things, in the proposed 
guidance that ``the extent of waters over which the agencies 
assert jurisdiction under the CWA will increase compared to the 
extent of waters over which jurisdiction has been asserted 
under existing guidance.'' (Proposed Guidance, at p.3.)
    Members of Congress, stakeholders, and states submitted 
comments to the Agencies, expressing, among other things, 
concern that the proposed guidance amounts to being a de facto 
rule because it effectively amends existing regulations that 
were at issue in the Rapanos and SWANCC cases by describing new 
conditions under which the Agencies may assert jurisdiction; 
the Administrative Procedure Act (5 U.S.C. 500 et seq.) 
mandates that, when the Agencies revise preexisting regulations 
or make specific, binding regulatory pronouncements, those 
pronouncements and rules must be promulgated pursuant to well-
established notice-and-comment rulemaking procedures. The 
Agencies received comments outlining other issues, including 
that the proposed guidance misconstrues the Supreme Court's 
cases, is inconsistent with the Agencies' regulations, and 
expands federal jurisdiction under the CWA.
    In February 2012, the Agencies prepared and sent to the 
Office of Information and Regulatory Affairs of the Office of 
Management and Budget (OMB/OIRA) for interagency regulatory 
review under Executive Order 12866 revised proposed CWA 
jurisdiction guidance. (Guidance on Identifying Waters 
Protected By the Clean Water Act (dated Feb. 17, 2012) 
(referred to as ``Clean Water Protection Guidance,'' Regulatory 
Identifier Number (RIN) 2040-ZA11, received Feb. 21, 2012).) 
The revised guidance was largely unchanged from the proposed 
version.
    In September, 2013, the Corps and EPA announced their 
withdrawal, from OMB/OIRA, of the proposed guidance before the 
guidance was finalized. At the same time, the Agencies sent to 
OMB/OIRA, for regulatory review, a draft rule entitled 
Definition of `Waters of the United States' Under the Clean 
Water Act (RIN: 2040-AF30). The draft rule purported to 
``clarify'' which waterbodies are subject to federal 
jurisdiction under the CWA.

The Agencies' proposed revised Clean Water Act jurisdiction rule

    In April 2014, the Agencies published in the Federal 
Register a proposed rule that would revise the regulatory 
definition of the term ``waters of the United States'' under 
the CWA. (See 79 Fed. Reg. 22188 (Apr. 21, 2014) (Definition of 
`Waters of the United States' Under the Clean Water Act).) The 
proposed rule purports to ``clarify'' which waterbodies are 
subject to federal jurisdiction under the CWA. The rulemaking 
notice provided a 91 day public comment period on the rule, 
which the Agencies later extended an additional 91 days. (See 
79 Fed. Reg. 35712 (June 24, 2014) (Definition of `Waters of 
the United States' Under the Clean Water Act; Extension of 
Comment Period).) The agencies later further extended the 
public comment period on the rule to November 14, 2014. (See 79 
Fed. Reg. 61590 (Oct. 14, 2014) (Extension of Comment Period 
for the Definition of ``Waters of the United States'' Under the 
Clean Water Act; Proposed Rule and Notice of Availability).)
    The proposed rule would redefine the term ``waters of the 
United States'' in the regulations for all CWA programs, and in 
particular would cover sections 303 (water quality standards), 
311 (oil and hazardous substances releases), 401 (state water 
quality certifications), 402 (NPDES permitting and stormwater), 
and 404 (wetlands permitting).
    The proposed rule would redefine the term ``waters of the 
United States'' as follows:
 ``Waters of the United States'' or ``waters of the U.S.'' means:
    (a) For purposes of all sections of the Clean Water Act, 33 
U.S.C. 1251 et seq. and its implementing regulations, subject 
to the exclusions in paragraph (b) of this definition, the term 
``waters of the United States'' means:
          (1) All waters which are currently used, were used in 
        the past, or may be susceptible to use in interstate or 
        foreign commerce, including all waters which are 
        subject to the ebb and flow of the tide;
          (2) All interstate waters, including interstate 
        wetlands;
          (3) The territorial seas;
          (4) All impoundments of waters identified in 
        paragraphs (a)(1) through (3) and (5) of this 
        definition;
          (5) All tributaries of waters identified in 
        paragraphs (a)(1) through (4) of this definition;
          (6) All waters, including wetlands, adjacent to a 
        water identified in paragraphs (a)(1) through (5) of 
        this definition; and
          (7) On a case-specific basis, other waters, including 
        wetlands, provided that those waters alone, or in 
        combination with other similarly situated waters, 
        including wetlands, located in the same region, have a 
        significant nexus to a water identified in paragraphs 
        (a)(1) through (3) of this definition.
    (b) The following are not ``waters of the United States'' 
notwithstanding whether they meet the terms of paragraphs 
(a)(1) through (7) of this definition--
          (1) Waste treatment systems, including treatment 
        ponds or lagoons, designed to meet the requirements of 
        the Clean Water Act. This exclusion applies only to 
        manmade bodies of water which neither were originally 
        created in waters of the United States (such as 
        disposal area in wetlands) nor resulted from the 
        impoundment of waters of the United States.
          (2) Prior converted cropland. Notwithstanding the 
        determination of an area's status as prior converted 
        cropland by any other federal agency, for the purposes 
        of the Clean Water Act, the final authority regarding 
        Clean Water Act jurisdiction remains with EPA.
          (3) Ditches that are excavated wholly in uplands, 
        drain only uplands, and have less than perennial flow.
          (4) Ditches that do not contribute flow, either 
        directly or through another water, to a water 
        identified in paragraphs (a)(1) through (4) of this 
        definition.
          (5) The following features:
                  (i) Artificially irrigated areas that would 
                revert to upland should application of 
                irrigation water to that area cease;
                  (ii) Artificial lakes or ponds created by 
                excavating and/or diking dry land and used 
                exclusively for such purposes as stock 
                watering, irrigation, settling basins, or rice 
                growing;
                  (iii) Artificial reflecting pools or swimming 
                pools created by excavating and/or diking dry 
                land;
                  (iv) Small ornamental waters created by 
                excavating and/or diking dry land for primarily 
                aesthetic reasons;
                  (v) Water-filled depressions created 
                incidental to construction activity;
                  (vi) Groundwater, including groundwater 
                drained through subsurface drainage systems; 
                and
                  (vii) Gullies and rills and non-wetland 
                swales.
    The proposed rule also would provide new definitions of 
certain terms used in the proposed rule, including 
``adjacent,'' ``neighboring,'' ``riparian area,'' 
``floodplain,'' ``tributary,'' ``wetlands,'' and ``significant 
nexus.''
    Stakeholders have expressed both support of and concerns 
with the proposed rule.
    Those expressing support for the proposed rule have 
suggested that this effort will provide greater clarity and 
certainty in the confusing jurisdictional and regulatory 
requirements following the Supreme Court decisions, as well as 
provide a scientifically-based means for protecting headwater 
and intermittent streams, while preserving existing regulatory 
and statutory exemptions for certain activities.
    Approximately seven states, seven counties and 21 cities, 
along with major environmental groups, breweries, bed and 
breakfasts, and some outdoor recreational groups, have 
commented in support of the rule. They expressed support for 
the proposed rulemaking, and commented that the proposed rule 
provides much needed clarity and renewed protection over waters 
where CWA jurisdiction has been called into question under both 
the rulings of the Supreme Court and by the Agencies' 2003 and 
2008 guidance documents. (See, e.g., Testimony of Lemuel M. 
Srolovic, Bureau Chief, Environmental Protection Bureau, office 
of New York State Attorney General Eric T. Schneiderman 
(presented at the Joint Hearing of the House Committee on 
Transportation and Infrastructure and the Senate Committee on 
Environment and Public Works on ``Impacts of the Proposed 
Waters of the United States Rule on State and Local 
Governments'' (Feb. 4, 2015) (hereinafter, ``2015 CWA Joint 
Hearing'') (noting that the proposed rule is ``grounded in 
solid peer-reviewed science'' and ``advances the Clean Water 
Act's protection of state waters downstream of other states by 
securing a national federal `floor' for water pollution 
control, thereby maintaining the consistency and effectiveness 
of the downstream states' water pollution programs''); 
Testimony of Commissioner Timothy Mauck, Board of 
Commissioners, Clear Creek Colorado (presented at the 2015 CWA 
Joint Hearing) (commenting that the proposed rule ``should help 
provide more regulatory certainty and more timely review of 
permit applications,'' noting that ``by clarifying and 
simplifying the question of jurisdiction for [intermittent and 
ephemeral] tributaries and adjacent wetlands, [permit] 
applications should be able to more quickly get the substance 
of their proposals reviewed without those lengthy delays 
created by doing case-by-case jurisdictional analyses'').) Some 
state and local officials (and EPA, itself) said that the 
Agencies undertook an extensive public comment period, 
including conducting over 400 public meetings throughout the 
country. EPA also said that it created a special process for 
engaging with state representatives, and established a local 
government advisory committee workgroup to have local views on 
the proposed rule.
    Those expressing concerns with the proposed rule have 
criticized the process by which the Agencies have moved forward 
with the proposed rulemaking, as well as the substance of the 
rule itself, including concerns over the lack of clarity and 
the broadened scope of the rule.
    Approximately 32 states, approximately 370 individual 
counties and the National Association of Counties and the 
National Association of County Engineers, and approximately 150 
individual towns and the National League of Cities, the U.S. 
Conference of Mayors, and the National Association of Towns and 
Townships, along with the majority of the regulated 
communities, including agriculture, business and industry, 
energy, forestry, real estate, construction, transportation, 
mining, manufacturing, and water districts and conservation 
districts, have commented, expressing concerns with the rule.
    The expressed process concerns include the sequence and 
timing of the actions that the Agencies have taken to develop 
the rule, which many believe undermine the credibility of the 
rule and the process to develop it. Among other things, 
stakeholders have expressed concern that, when the Agencies 
decided to develop a rule, they simply proceeded ahead with a 
rulemaking that is based on the earlier proposed guidance, 
thereby codifying the guidance that raised so many concerns; 
the process prejudges the science underlying the rule; and many 
representatives of state and local governments and the 
regulated community have expressed concern that the Agencies 
have failed to consult with them in the development of the 
rule, thereby threatening to undermine the federal-state 
partnership and erode state authority under the CWA.
    Some have called for the Agencies to step back, follow an 
open, collaborative rulemaking process, and repropose a revised 
rule that takes into consideration the advice and 
recommendations of state and local governments and other 
stakeholders. (See, e.g., Testimony of the Honorable Sallie 
Clark, Commissioner, El Paso County, CO, on behalf of the 
National Association of Counties (presented at the 2015 CWA 
Joint Hearing); Testimony of Adam H. Putnam, Commissioner of 
Agriculture, State of Florida, on behalf of the National 
Association of State Departments of Agriculture (presented at 
the 2015 CWA Joint Hearing); Testimony of E. Scott Pruitt 
Attorney General of Oklahoma (presented at the 2015 CWA Joint 
Hearing); Testimony of J.D. Strong, Executive Director of the 
Oklahoma Water Resources Board, on behalf of the Oklahoma Water 
Resources Board, Western Governors' Association, and the 
Western States Water Council (presented at the House Committee 
on Transportation and Infrastructure, Subcommittee on Water 
Resources and Environment Hearing on ``Potential Impacts of 
Proposed Changes to the Clean Water Act Jurisdiction Rule'' 
(June 11, 2014) (hereinafter, ``2014 CWA Hearing''); Testimony 
of Warren ``Dusty'' Williams, General Manager/Chief Engineer, 
Riverside County Flood Control & Water Conservation District, 
on behalf of the National Association of Counties and the 
National Association of Flood and Stormwater Management 
Agencies (presented at the 2014 CWA Hearing); Testimony of Bob 
Stallman, President, American Farm Bureau Federation (presented 
at the 2014 CWA Hearing).)
    Many of those expressing substantive concerns with the 
proposed rule suggest the rule fails to provide reasonable 
clarity, is inconsistent with Supreme Court precedent, and 
could broaden the scope of CWA jurisdiction, thereby triggering 
greater regulatory obligations under the CWA, including permit 
obligations for discharges to waters that currently may not be 
subject to the Act. Some note that the proposed rule leaves 
many key concepts unclear, undefined, or subject to Agency 
discretion, and suggest that the vague definitions and concepts 
will not provide the intended regulatory certainty and will 
instead result in litigation over their proper meaning. (See, 
e.g., Testimony of the Honorable Sallie Clark, Commissioner, El 
Paso County, CO, on behalf of the National Association of 
Counties (presented at the 2015 CWA Joint Hearing); Testimony 
of Adam H. Putnam, Commissioner of Agriculture, State of 
Florida, on behalf of the National Association of State 
Departments of Agriculture (presented at the 2015 CWA Joint 
Hearing); Testimony of E. Scott Pruitt Attorney General of 
Oklahoma (presented at the 2015 CWA Joint Hearing); Testimony 
of J.D. Strong, Executive Director of the Oklahoma Water 
Resources Board (presented at the 2014 CWA Hearing); Testimony 
of Warren ``Dusty'' Williams, General Manager/Chief Engineer, 
Riverside County Flood Control & Water Conservation District, 
on behalf of the National Association of Counties and the 
National Association of Flood and Stormwater Management 
Agencies (presented at the 2014 CWA Hearing); Testimony of Bob 
Stallman, President, American Farm Bureau Federation (presented 
at the 2014 CWA Hearing); Testimony of Mark T. Pifher, Manager, 
Southern Delivery System, Colorado Springs Utilities, on behalf 
of the National Water Resources Association (presented at the 
2014 CWA Hearing); Testimony of Kevin Kelly, Chairman of the 
Board, National Association of Home Builders (presented at the 
2014 CWA Hearing).)

Legislation to preserve existing rights and responsibilities with 
        respect to waters of the United States

    On April 13, 2015, House Committee on Transportation and 
Infrastructure Chairman Shuster, along with Water Resources and 
Environment Subcommittee Chairman Gibbs and 25 other Members of 
the House of Representatives, introduced H.R. 1732, the 
``Regulatory Integrity Protection Act of 2015.'' The 
legislation was introduced in response to the concerns that 
many stakeholders and witnesses have expressed regarding the 
process used to develop the proposed CWA jurisdiction rule.
    The sponsors of H.R. 1732 introduced this legislation to 
require the Agencies to withdraw the proposed rule, consult 
with state and local officials, stakeholders, and other 
interested parties on how to identify those waters covered 
under, and those waters not covered under, the Federal Water 
Pollution Control Act, and to develop a new proposed rule after 
taking into consideration all of the comments received on the 
original proposed rule and the advice and recommendations made 
by the state and local officials, stakeholders, and other 
interested parties that were consulted. Without this 
legislation, Congress, the states, and other stakeholders will 
not have any reasonable assurance that the Agencies will take 
into consideration, in a meaningful way, the substantive and 
process concerns expressed by stakeholders about the Agencies' 
regulatory actions pertaining to redefining the scope of 
jurisdiction under the CWA.

                                HEARINGS

    On February 4, 2015, the House Committee on Transportation 
and Infrastructure and the Senate Committee on Environment and 
Public Works held a joint oversight hearing on the ``Impacts of 
the Proposed Waters of the United States Rule on State and 
Local Governments.'' The committees received testimony from the 
Administrator of the EPA, the Assistant Secretary of the Army 
for Civil Works, and representatives of state and local 
governments on the joint EPA and Corps proposed rulemaking to 
redefine the regulatory term ``waters of the United States'' 
under the CWA. A legislative hearing was not held on the bill.
    In the 113th Congress, the Subcommittee on Water Resources 
and Environment held a hearing to receive testimony from the 
Deputy Administrator of the EPA, the Assistant Secretary of the 
Army for Civil Works, and representatives of state and local 
governments and private sector stakeholders on the joint EPA 
and Corps proposed rulemaking to redefine the regulatory term 
``waters of the United States'' under the CWA.

                 LEGISLATIVE HISTORY AND CONSIDERATION

    On April 13, 2015, House Committee on Transportation and 
Infrastructure Chairman Shuster introduced H.R. 1732, the 
``Regulatory Integrity Protection Act of 2015.'' On April 15, 
2015, the Committee on Transportation and Infrastructure met in 
open session to consider H.R. 1732, and ordered the bill 
reported favorably to the House by roll call vote with a quorum 
present. The vote was 36 yeas to 22 nays.
    Delegate Eleanor Holmes Norton offered an amendment in 
Committee. The amendment would exempt the Agencies from the 
requirements of the bill to protect the quality of surface 
water that is available for public water supplies. The 
amendment was defeated by roll call vote with a quorum present. 
The vote was 23 yeas to 33 nays. Representative Huffman also 
offered an amendment in Committee. The amendment would 
recognize federal deference to state primacy in the development 
of water law, the governance of water rights, and the 
establishment of the legal system by which states mediate 
disputes over water use. The amendment was adopted by voice 
vote with a quorum present.

                            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 recorded 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. 1732, two roll call votes were taken.
    The first roll call vote was taken on an amendment offered 
in Committee by Delegate Eleanor Holmes Norton. The Committee 
disposed of this amendment by roll call vote as follows:

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

    The other roll call vote was taken on reporting the bill, 
as amended, to the House with a favorable recommendation. The 
bill, as amended, was reported to the House with a favorable 
recommendation after a roll call 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.

               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. 1732 from the 
Director of the Congressional Budget Office:
                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 27, 2015.
Hon. Bill Shuster,
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. 1732, the 
Regulatory Integrity Protection Act of 2015.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Susanne S. 
Mehlman.
            Sincerely,
                                                Keith Hall,
                                                          Director.
    Enclosure.

H.R. 1732--Regulatory Integrity Protection Act of 2015

    H.R. 1732 would require the Environmental Protection Agency 
(EPA) and the U.S. Army Corps of Engineers (Corps) to withdraw 
the proposed rule published in the Federal Register on April 
21, 2014, that defines the scope of waters protected by the 
Clean Water Act (CWA). Under the CWA, EPA and the Corps, along 
with the states, serve as co-regulators of activities affecting 
the nation's waters.
    CBO estimates that implementing H.R. 1732 would cost $5 
million over the 2016-2020 period, subject to the availability 
of appropriations. The legislation would affect direct spending 
because it would reduce fees collected by the Corps for issuing 
permits under the CWA. However, CBO estimates that the change 
in those fees would be negligible. Because the legislation 
would affect direct spending, pay-as-you-go procedures apply. 
Enacting H.R. 1732 would not affect revenues.
    The bill would require EPA and the Corps to develop a new 
proposed rule, taking into account public comments submitted 
for the April 21, 2014, proposed rule as well as the regulatory 
analysis for that proposed rule and a related EPA report issued 
in January 2015. This legislation also would direct EPA and the 
Corps to consult with state and local officials, stakeholders, 
and other interested parties to seek consensus on which waters 
and wetlands are covered by the CWA. Finally, H.R. 1732 would 
require EPA and the Corps to prepare a report for the Congress 
that responds to public comments filed on the April 2014 
proposed rule and associated documents and that describes how 
the new proposed rule addresses such comments. The report also 
would have to explain how the new proposed rule addresses the 
advice and recommendations obtained from other parties, and it 
would have to include a comprehensive regulatory and economic 
analysis of the new proposed rule.
    Under H.R. 1732, CBO expects that funds that would have 
been used to develop and implement the current proposed rule 
and to draft guidance would be used to develop an alternative 
regulatory proposal. Based on EPA's prior experience in 
developing new regulations, CBO estimates that it would cost an 
additional $5 million over the 2016-2020 period to address the 
roughly 1 million comments EPA and the Corps have received 
concerning the April 2014 proposed rule, conduct extensive 
outreach efforts to interested parties, and help prepare a 
comprehensive regulatory and economic analysis.
    The regulatory changes proposed under current law would 
expand the area covered by federal regulations and increase the 
number of permits issued by the Corps under the CWA to dispose 
of dredged or fill material from development projects near 
regulated waters. CBO expects that the legislation would 
probably reduce or delay that expansion leading to a reduction 
in the number of permits issued. Because the amount charged for 
those permits is nominal, CBO estimates enacting H.R. 1732 
would have an insignificant effect on offsetting receipts over 
the 2016-2025 period.
    H.R. 1732 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act; any 
costs incurred by state, local, or tribal governments would 
result from participation in a voluntary federal program.
    The CBO staff contact for this estimate is Susanne S. 
Mehlman. This estimate was approved by Theresa Gullo, 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 
withdraw a proposed rule the Agencies have developed regarding 
the scope of federal jurisdiction under the CWA, consult with 
state and local officials, stakeholders, and other interested 
parties on how to identify those waters covered under, and 
those waters not covered under, the CWA, and to develop a new 
proposed rule after taking into consideration all of the 
comments received on the original proposed rule and the advice 
and recommendations made by the state and local officials, 
stakeholders, and other interested parties that were consulted.

                          ADVISORY OF EARMARKS

    In compliance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1732 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.

                    DUPLICATION OF FEDERAL PROGRAMS

    Pursuant to section 3(g) of H. Res. 5, 114th Cong. (2015), 
the Committee finds that no provision of H.R. 1732, as 
reported, establishes or reauthorizes a program of the federal 
government known to be duplicative of another federal program, 
a program that was included in any report from the Government 
Accountability Office to Congress pursuant to section 21 of 
Public Law 111-139, or a program related to a program 
identified in the most recent Catalog of Federal Domestic 
Assistance.

                   DISCLOSURE OF DIRECTED RULEMAKINGS

    Pursuant to section 3(i) of H. Res. 5, 114th Cong. (2015), 
the Committee estimates that enacting H.R. 1732, as reported, 
specifically directs the withdrawal of a proposed rulemaking 
and directs the Agencies to develop a new proposed rule taking 
into consideration all of the comments received on the proposed 
rule, within the meaning of section 551 of title 5, United 
States Code, to replace the withdrawn rulemaking.

                       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. 1732 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 H.R. 1732 states that this Act may be cited as 
the ``Regulatory Integrity Protection Act of 2015.''

Section 2. Withdrawal of existing proposed rule

    Section 2 of H.R. 1732 requires the Secretary of the Army 
(``Secretary'') and the Administrator of the Environmental 
Protection Agency (``Administrator'') to withdraw the proposed 
rule described in the notice of proposed rule published in the 
Federal Register entitled ``Definition of `Waters of the United 
States' Under the Clean Water Act'' (79 Fed. Reg. 22188 (April 
21, 2014)) and any final rule based on such proposed rule 
(including RIN 2040-AF30). The Secretary and the Administrator 
are to withdraw the proposed rule not later than 30 days after 
the date of enactment of this Act.

Section 3. Development of new proposed rule

            Subsection (a): In general
    Subsection (a) requires the Secretary and the Administrator 
to develop a new proposed rule to define the term ``waters of 
the United States'' as used in the Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.).
            Subsection (b): Development of new proposed rule
    Subsection (b) lays out the process the Secretary and the 
Administrator must go through to develop the new proposed rule.
    Paragraph (1) of subsection (b) requires that, in 
developing the new proposed rule, the Secretary and the 
Administrator must take into consideration the public comments 
received on (A) the proposed rule referred to in Section 2; (B) 
the accompanying economic analysis of the proposed rule 
entitled ``Economic Analysis of Proposed Revised Definition of 
Waters of the United States'' (dated March 2014); and (C) the 
report entitled ``Connectivity of Streams & Wetlands to 
Downstream Waters: A Review & Synthesis of Scientific 
Evidence'' (EPA/600/R-14/475F; dated January 2015).
    Paragraph (1) of subsection (b) is intended to ensure that 
the public input that the Secretary and the Administrator have 
received from the current proposed rulemaking (referred to in 
Section 2 of the bill) is utilized in the development of the 
new proposed rule under Section 3 of the bill. The Secretary 
and the Administrator received extensive substantive, unique 
comments on their proposed rule, the accompanying economic 
analysis, and the scientific review document that the Secretary 
and the Administrator have said they based the proposed rule 
on. The Secretary and the Administrator must take into 
consideration the substantive, unique public comments and 
insights gained from these public comment processes when 
developing the new proposed rule.
    Paragraph (2) of subsection (b) requires the Secretary and 
the Administrator to jointly consult with and solicit advice 
and recommendations from representative state and local 
officials, stakeholders, and other interested parties on how to 
define the term ``waters of the United States'' as used in the 
Federal Water Pollution Control Act. The requirements for 
consulting and seeking such advice and recommendations include 
those described in subsection (c) ``Federalism Consultation 
Requirements'' and subsection (d) ``Stakeholder Consultation 
Requirements.'' These requirements aim to ensure transparency 
and openness in the consultation processes established by this 
bill, and participation by state and local officials, 
stakeholders, and other interested parties representing a broad 
cross-section of regional, economic, policy, geographic, and 
other perspectives around the nation. The Secretary and the 
Administrator must aim to include as many state and local 
officials, stakeholders and other interested parties as have a 
desire to participate, and must not restrict parties 
representing particular perspectives.
    Paragraph (3) of subsection (b) requires the Secretary and 
the Administrator to prepare a new regulatory proposal that 
will, consistent with applicable rulings of the United States 
Supreme Court, specifically identify those waters covered 
under, and those waters not covered under, the Federal Water 
Pollution Control Act. In preparing the new proposed rule, the 
Secretary and the Administrator must take into consideration 
the public comments referred to in paragraph (1), and the 
advice and recommendations made by the state and local 
officials, stakeholders, and other interested parties consulted 
under this section. The Secretary and the Administrator also 
must incorporate, into the new proposed rule, the areas and 
issues where consensus was reached with the parties.
    Part of the Secretary's and Administrator's responsibility 
in developing the new regulatory proposal is to provide clarity 
regarding waters covered, and not covered, under the CWA. In 
providing such clarity, the Secretary and the Administrator 
must specifically identify in the proposed rule what particular 
waters are covered and what are not covered. General 
categorizations of waters are not sufficient. Those waters not 
covered under the CWA are reserved to the states to determine 
whether and how to regulate.
    The new proposed rule will need to be consistent with 
applicable rulings of the United States Supreme Court. This 
would include the Supreme Court's rulings in the Riverside 
Bayview, SWANCC, and Rapanos cases. Additionally, the advice 
and recommendations that come out of the Federalism 
Consultation (subsection (c)) and the Stakeholder Consultation 
(subsection (d)) must be taken into account when developing the 
new rule. Areas of consensus reached with the parties to the 
consultations regarding which waters are covered and which are 
not covered must be incorporated into the new proposed rule.
            Subsection (c): Federalism consultation
    Subsection (c) lays out the requirements the Secretary and 
the Administrator must follow as they undertake the Federalism 
Consultation with state and local officials required under 
subsection (b). The term ``State and local officials'' (defined 
in subsection (i)) means elected or professional state and 
local government officials or their representative regional or 
national organizations. When consulting with and soliciting 
advice and recommendations from state and local officials, the 
Secretary and the Administrator shall comply with the 
requirements in paragraphs (1) through (9) of subsection (c):
    (1) Paragraph (1) requires the Secretary and the 
Administrator to seek to reach consensus with the state and 
local officials on how to define the term ``waters of the 
United States'' as used in the Federal Water Pollution Control 
Act.
    (2) Paragraph (2) requires the Secretary and the 
Administrator to provide the state and local officials with 
notice and an opportunity to participate in the consultation 
process under subsection (b).
    (3) Paragraph (3) requires the Secretary and the 
Administrator to consult with state and local officials that 
represent a broad cross-section of regional, economic, policy, 
and geographic perspectives in the United States.
    (4) Paragraph (4) requires the Secretary and the 
Administrator to emphasize the importance of collaboration with 
and among the state and local officials.
    (5) Paragraph (5) requires the Secretary and the 
Administrator to allow for meaningful and timely input by the 
state and local officials.
    (6) Paragraph (6) requires the Secretary and the 
Administrator to recognize, preserve, and protect the primary 
rights and responsibilities of the states to protect water 
quality under the CWA, and to plan and control the development 
and use of land and water resources in the states.
    (7) Paragraph (7) requires the Secretary and the 
Administrator to protect the authorities of state and local 
governments and rights of private property owners over natural 
and manmade water features, including the continued recognition 
of federal deference to state primacy in the development of 
water law, the governance of water rights, and the 
establishment of the legal system by which states mediate 
disputes over water use.
    (8) Paragraph (8) requires the Secretary and the 
Administrator to incorporate the advice and recommendations of 
the state and local officials regarding matters involving 
differences in state and local geography, hydrology, climate, 
legal frameworks, economies, priorities, and needs.
    (9) Paragraph (9) requires the Secretary and the 
Administrator to ensure transparency in the consultation 
process, including promptly making accessible to the public all 
communications, records, and other documents of all meetings 
that are part of the consultation process.
    Paragraph (9) of subsection (c) is included in order to 
make the consultation process transparent to state and local 
officials and Congress, as well as to other stakeholders and 
other interested parties.
    Transparency in the Federalism Consultation process is 
essential to ensure that the Secretary and the Administrator 
comply with both the requirements and the spirit of this 
legislation. During the consultation process, the Secretary and 
the Administrator must make promptly available to the public 
all of the information received or disseminated as part of the 
consultation process, including any and all documents prepared 
by the Secretary or the Administrator and distributed at 
meetings or other events, documents received by the Secretary 
or the Administrator, lists of invited attendees and of those 
who attend or participate, and any other data, handouts, 
communications, records, information, or documents that are 
part of the consultation process. The Secretary and the 
Administrator shall promptly make all such information 
available to the public, in a centralized and easy to access 
venue (such as a dedicated, publicly accessible Website on the 
Internet).
            Subsection (d): Stakeholder consultation requirements
    Subsection (d) lays out the requirements the Secretary and 
the Administrator must follow as they undertake the Stakeholder 
Consultation with stakeholders and other interested parties 
required under subsection (b).
    Paragraph (1) of subsection (d) requires the Secretary and 
the Administrator to identify representatives of public and 
private stakeholders and other interested parties, including 
small entities (as defined in section 601 of title 5, United 
States Code), representing a broad cross-section of regional, 
economic, and geographic perspectives in the United States, who 
could potentially be affected, directly or indirectly, by the 
new proposed rule under subsection (a), for the purpose of 
obtaining advice and recommendations from those representatives 
about the potential adverse impacts of the new proposed rule 
and means for reducing such impacts in the new proposed rule.
    Paragraph (2) of subsection (d) requires the Secretary and 
the Administrator to ensure transparency in the consultation 
process, including promptly making accessible to the public all 
communications, records, and other documents of all meetings 
that are part of the consultation process.
    Paragraph (2) of subsection (d) is included in order to 
make the consultation process transparent to stakeholders and 
other interested parties, Congress, as well as to state and 
local officials.
    Transparency in the Stakeholder Consultation process is 
essential to ensure that the Secretary and the Administrator 
comply with both the requirements and the spirit of this 
legislation. During the consultation process, the Secretary and 
the Administrator must make promptly available to the public 
all of the information received or disseminated as part of the 
consultation process, including any and all documents prepared 
by the Secretary or the Administrator and distributed at 
meetings or other events, documents received by the Secretary 
or the Administrator, lists of invited attendees and of those 
who attend or participate, and any other data, handouts, 
communications, records, information, or documents that are 
part of the consultation process. The Secretary and the 
Administrator shall promptly make all such information 
available to the public, in a centralized and easy to access 
venue (such as a dedicated, publicly accessible Website on the 
Internet).
            Subsection (e): Timing of federalism and stakeholder 
                    consultation
    Subsection (e) requires the Secretary and the Administrator 
to initiate consultations with state and local officials, 
stakeholders, and other interested parties under subsection (b) 
not later than 3 months after the date of enactment of this 
Act.
            Subsection (f): Report
    Subsection (f) requires the Secretary and the Administrator 
to prepare a report, along with the new proposed rule. 
Subsection (f) details the report's contents and requirements.
    Paragraph (1) of subsection (f) requires the Secretary and 
the Administrator to both identify and respond to each of the 
public comments filed on the proposed rule referred to in 
section 2; the accompanying economic analysis of the proposed 
rule entitled ``Economic Analysis of Proposed Revised 
Definition of Waters of the United States'' (dated March 2014); 
and the report entitled ``Connectivity of Streams & Wetlands to 
Downstream Waters: A Review & Synthesis of Scientific 
Evidence'' (EPA/600/R-14/475F; dated January 2015). The purpose 
of this portion of the report includes ensuring that the public 
is aware of and has access to all of the public comments filed 
on the proposed rule under section 2, economic analysis, and 
report; and ensuring that the Secretary and the Administrator 
review, evaluate, and respond to each of the public comments 
that were filed, including each of the issues discussed in each 
public comment that was filed.
    Paragraph (2) of subsection (f) requires the Secretary and 
the Administrator to provide a detailed explanation of how the 
new proposed rule under subsection (a) addresses the public 
comments referred to in paragraph (1).
    Paragraph (3) of subsection (f) requires the Secretary and 
the Administrator to describe in detail the advice and 
recommendations obtained from the state and local officials 
consulted under this section; the areas and issues where 
consensus was reached with the state and local officials 
consulted under this section; the areas and issues of 
continuing disagreement that resulted in the failure to reach 
consensus; and the reasons for the continuing disagreements.
    Paragraph (4) of subsection (f) requires the Secretary and 
the Administrator to provide a detailed explanation of how the 
new proposed rule addresses the advice and recommendations 
provided by the state and local officials consulted under this 
section, including the areas and issues where consensus was 
reached with the state and local officials.
    Paragraph (5) of subsection (f) requires the Secretary and 
the Administrator to describe in detail the advice and 
recommendations obtained from the stakeholders and other 
interested parties, including small entities, consulted under 
this section about the potential adverse impacts of the new 
proposed rule and means for reducing such impacts in the new 
proposed rule. Paragraph (5) also requires the Secretary and 
the Administrator to describe in detail how the new proposed 
rule addresses such advice and recommendations.
    Paragraph (6) of subsection (f) requires the Secretary and 
the Administrator to provide a detailed explanation of how the 
new proposed rule recognizes, preserves, and protects the 
primary rights and responsibilities of the states to protect 
water quality and to plan and control the development and use 
of land and water resources in the states; and how the new 
proposed rule is consistent with the applicable rulings of the 
United States Supreme Court regarding the scope of waters to be 
covered under the CWA. The applicable Supreme Court rulings 
would include the rulings in the Riverside Bayview, SWANCC, and 
Rapanos cases.
    Paragraph (7) of subsection (f) requires the Secretary and 
the Administrator to provide comprehensive regulatory and 
economic impact analyses, utilizing the latest data and other 
information, on how definitional changes in the new proposed 
rule will impact, directly or indirectly, each program under 
the CWA for federal, state, and local government agencies; and 
impact, directly or indirectly, public and private stakeholders 
and other interested parties, including small entities, 
regulated under each such program.
    Paragraph (7) of subsection (f) is intended to ensure that 
the Secretary and the Administrator conduct rigorous regulatory 
and economic impact analyses of the new proposed rule that use 
the latest economic data and other information on how the 
proposed rule will impact all of the programs under the CWA. 
This requirement includes impacts on any decision regarding 
whether any permitting, enforcement, or other regulatory 
requirement under any section of the CWA (including sections 
404, 402, 401, 311, 303, and 301) applies to a given 
circumstance. This also includes analyzing impacts on the 
federal government, states, local government agencies, public 
and private stakeholders, and small entities that might be 
impacted by the new proposed rule under these CWA programs.
            Subsection (g): Publication
    Subsection (g) outlines the requirements to the Secretary 
and the Administrator for publication of the new proposed rule 
and the report under subsection (f).
    Paragraph (1) of subsection (g) requires the Secretary and 
the Administrator to publish for comment, in the Federal 
Register, the new proposed rule under subsection (a); a 
description of the areas and issues where consensus was reached 
with the state and local officials consulted under this 
section; and the report described in subsection (f). The 
description of the areas and issues where consensus was reached 
with the state and local officials consulted, listed in 
subparagraph (1)(B), refers to such description to be included 
in the report described in Subsection (f). The Secretary and 
the Administrator are to publish the aforementioned items not 
later than 3 months after the completion of consultations with 
and solicitation of recommendations from state and local 
officials, stakeholders, and other interested parties under 
subsection (b).
    Paragraph (2) of subsection (g) requires the Secretary and 
the Administrator to provide not fewer than 180 days for the 
public to review and comment on the new proposed rule under 
subsection (a); the accompanying economic analysis for the new 
proposed rule; and the report described in subsection (f). The 
description of the accompanying economic analysis for the new 
proposed rule, listed in subparagraph (2)(B), refers to the 
regulatory and economic impact analyses to be included in the 
report described in Subsection (f).
            Subsection (h): Procedural requirements
    Subsection (h) clarifies that subchapter II of chapter 5, 
and chapter 7, of title 5, United States Code, commonly known 
as the ``Administrative Procedure Act,'' shall apply to the 
development and review of the new proposed rule under 
subsection (a).
            Subsection (i): State and local officials defined
    Subsection (i) defines ``State and local officials'' to 
mean elected or professional state and local government 
officials or their representative regional or national 
organizations.

         CHANGES IN EXISTING LAW MADE BY THE BILL, AS REPORTED

    H.R. 1732 would not make any changes to existing law.

                            DISSENTING VIEWS

    We recognize that the reach and application of Clean Water 
Act protections have long been subject to rigorous debate. 
Since enactment of the Act over the veto of President Nixon in 
1972, the three branches of the Federal government have 
wrestled with how and where to apply the general premise of the 
Act--to prohibit the discharge of pollutants into the ``waters 
of the United States'' unless such discharges are covered by a 
Clean Water Act permit.
    Yet, we also recognize that a clear understanding of the 
Act's reach and application is essential both to the regulated 
community and the American public. Clarity is essential to the 
regulated community so they can understand and meet their legal 
obligations under the Clean Water Act. Likewise, clarity is 
critical to businesses and the general public so they can be 
assured that water quality will be uniformly protected, 
regardless of what state or region of the country the water may 
be located. The American people have a right to expect that 
wherever they travel in this county, the waters where they 
fish, swim, drink, hunt, recreate or otherwise enjoy are clean 
and safe, and that wherever they live, their property is 
reasonably protected from the risk of flooding.
    Unfortunately, that clarity is simply not available today. 
Confusion and uncertainty on the reach and application of Clean 
Water Act protections abound--resulting both from recent 
Supreme Court decisions, as well as guidance documents adopted 
by the Bush administration that have been uniformly criticized 
as ``arbitrary'', ``confusing'', and ``frustrating''.
    In response to universal calls for greater certainty,\1\ 
April 21, 2014, the Obama administration proposed a new Clean 
Water rulemaking to replace the existing guidance, and to 
address the uncertainty and bureaucratic process related to 
whether a waterbody (or wetland) is covered by the Act. The 
agencies twice extended the public comment period for the 
proposed rule, which ultimately concluded on November 14, 2014 
(for a total public comment period of 208 days). During that 
period, EPA testified that they held over 400 public meetings, 
and received a significant amount of public comment and input 
on the proposed rule.
---------------------------------------------------------------------------
    \1\For over a decade, members of Congress, state and local 
officials, industry, agriculture, and environmental organizations, and 
the general public have asked for a rulemaking to provide additional 
regulatory clarity on the scope of Clean Water Act protections. See 
http://www2.epa.gov/cleanwaterrule/persons-and-organizations-
requesting-clarification-waters-united-states-rulemaking.
---------------------------------------------------------------------------
    In addition, EPA's Office of Research and Development (ORD) 
undertook an independent evaluation of more than 1,200 peer-
reviewed scientific publications to summarize the current 
scientific understanding about the connectivity of streams and 
wetlands to downstream waters. This ``connectivity report'' 
concluded that the science supports a strong connection between 
upstream waters (and wetlands), including ephemeral (rain-
dependent) and intermittent (seasonal) streams, and downstream 
waters--a conclusion that was supported by a subsequent review 
of EPA's Science Advisory Board (SAB).
    Now, after over a year of public outreach--on a scale 
``unprecedented'' in the history of the Clean Water Act--as 
well as countless Congressional hearings, the agencies have 
submitted a revised Clean Water Protection rule to the Office 
of Management and Budget for final interagency review--the last 
step before the revised final rule would be released to the 
general public later this spring. In testimony to our 
Committee, the heads of both the Corps and EPA have identified 
several specific areas where the proposed rulemaking may have 
lacked specificity and where the agencies have committed to 
clarifying changes in the final rule to address these areas. 
But, rather than wait to review the merits of the final 
proposal, the Committee on Transportation and Infrastructure 
now reports a bill that would ensure that the agencies' efforts 
to date never see the light of day and that they be required to 
perform the equivalent of a bureaucratic ``do-loop.''
    We have to ask why? Such an approach would perpetuate the 
regulatory confusion that exists today, adding additional costs 
and delay to the construction of vital projects across the 
nation. It would leave countless acres of wetlands and miles of 
streams--many of which serve as the primary source of drinking 
water for 117 million Americans--at risk. And, it would force 
the agencies to conduct what appears to be the fifth and sixth 
public comment period on interpreting the scope of the Clean 
Water Act in the last decade. In short, as the EPA Deputy 
Administrator recently testified, ``I do not know what value 
would be added [for delaying implementation of the Clean Water 
rule] other than the addition of time.''
    Blocking the agencies from releasing their final product 
simply makes no sense. It provides no certainty or 
predictability to the regulated community on where the rules 
apply. It requires the agencies to, again, meet with the same 
groups of stakeholders to talk about the same issues they have 
talked about for decades. And, it leaves many of our nation's 
waters unprotected.
    Our waters are too precious to our health, to our 
economies, and to our cherished way of life to treat in this 
way. Let the agencies finish their work, and if Congress wants 
to revisit this issue afterward, it has ample authority to do 
so.
    For these reasons, we oppose H.R. 1732.
Background
    The Clean Water Act (CWA) was enacted with a goal to 
``restore and maintain the chemical, physical, and biological 
integrity of the Nation's waters.'' The Act prohibits the 
addition of any pollutants into ``navigable waters'' unless 
covered by a point source permit (under section 402 of the Act) 
or a dredge and fill permit (under section 404). The term 
``navigable waters'' is statutorily defined as meaning the 
``waters of the United States, including the territorial 
seas.''
    The statutory language of the CWA does not definitively 
describe the outer reaches of protection, but uses broad terms, 
such as ``waters of the United States,'' and allows the Corps 
and EPA to further define these terms through rulemaking and 
other administrative means. Congress' decision to utilize 
broadly-defined terms was a conscious one, allowing the 
establishment of a comprehensive ``Federal floor'' of 
protection that interested States could expand upon, without 
having to develop a specific definitional test that could have 
been inconsistent with the regional variability of waters 
throughout the nation. This scope of protection was also a 
direct response to the failed, state-by-state approach that 
existed prior to the CWA.
    From the 1970s through 2001, the prevailing legal theory 
was that the CWA, like many other Federal environmental 
statutes, was to be applied broadly--arguably to the limits of 
the Commerce Clause of the U.S. Constitution. However, in 2001 
(with the SWANCC decision\2\) and again in 2006 (with the 
Rapanos decisions\3\), the Supreme Court for the first time 
suggested some limit to the scope of the CWA; yet, the Court 
did not clearly define what that limit might be.
---------------------------------------------------------------------------
    \2\Solid Waste Agency of Northern Cook County v. U.S. Army Corps of 
Engineers (SWANCC), 531 U.S. 159 (2001).
    \3\Rapanos v. United States (consolidated with Carabell v. United 
States Army Corps of Engineers) 547 U.S. 715 (2006).
---------------------------------------------------------------------------
    In SWANCC, the Court concluded only that the Corps could 
not use the presence of migratory birds as the sole reason for 
asserting jurisdiction over so-called isolated, intrastate 
waters. In Rapanos, the Court issued a 4-1-4 decision that, 
again, did not articulate a clear limit to the scope of the 
Act. Instead, the Court produced three distinct opinions that 
outlined three separate analyses for determining the Act's 
scope. Yet, because a majority of the justices did not agree on 
any single test, the Federal agencies (and the courts) have no 
majority opinion to guide them in determining what waters are 
covered (and what waters may not be covered) by the Act. As a 
result, two Federal judicial circuits currently use one test 
for determining CWA jurisdiction (the Kennedy significant nexus 
test), three circuits use both the Kennedy and the Scalia 
(relatively permanent waters) tests, and the remaining circuits 
have not concluded which test to use.
    Since the SWANCC and Rapanos decisions, EPA and the Corps 
have issued several guidance documents to interpret how the 
agencies will implement these decisions. These interpretations 
have varied depending on the Presidential administration in 
office when they were drafted.
    While the Clinton administration initially sought to 
preserve broad CWA protection\4\, the Bush administration 
reversed and issued guidance that narrowed the reach of CWA 
protections\5\, however, in doing so, the Bush administration 
also imposed a water-by-water ``jurisdictional determination'' 
test that required the Corps (and EPA) to demonstrate a 
physical connection between each and every permit application 
to some downstream ``traditionally navigable water''. This new, 
and extremely fact-intensive, requirement dramatically slowed 
the process (and increased the cost and uncertainty) of 
determining whether a waterbody (or wetland) was even covered 
by the CWA--a process that must be completed before the merits 
of the actual permit application, itself, can be evaluated and 
issued.
---------------------------------------------------------------------------
    \4\See EPA and Corps Memorandum, entitled ``Supreme Court Ruling 
Concerning CWA Jurisdiction over Isolated Waters,'' dated January 19, 
2001, located at http:// www.spn.usace.army.mil/regulatory/misc/
swancc.pdf.
    \5\See Advance Notice of Proposed Rulemaking on the Clean Water Act 
Regulatory Definition of ``Waters of the United States'', Joint 
Memorandum, 68 Fed. Reg. 1991, 1995 (January 15, 2003); EPA and Army 
Corps of Engineers Guidance Regarding Clean Water Act Jurisdiction 
after Rapanos, 72 Fed. Reg. 31824 (June 8, 2007); and Clean Water Act 
Jurisdiction Following the U.S. Supreme Court's Decision in Rapanos v. 
United States & Carabell v. United States, located at http://
water.epa.gov.lawsregs/guidance/wetlands/upload/2008_12_3_wetlands_CWA 
Jurisdiction_Following_Rapanos120208.pdf.
---------------------------------------------------------------------------
    As a result, the regulated community, conservation and 
environmental organizations, and several States have commented 
that the current process, as outlined by the 2003 and 2008 
guidance documents, remains confusing, inconsistent, and 
costly, and provides little environmental benefit.
    For example, the following are public comments from both 
the regulated community and conservation organizations 
expressing concern about the current Bush-era guidance, which 
would be replaced by the proposed Clean Water Protection rule:
      ``With no clear regulatory definitions to guide 
their determinations, what has emerged is a hodgepodge of ad 
hoc and inconsistent jurisdictional theories.''\6\
---------------------------------------------------------------------------
    \6\Comments of the American Farm Bureau Federation, the National 
Association of Realtors, and the Foundation for Environmental and 
Economic Progress, et al., submitted April 16, 2003.
---------------------------------------------------------------------------
      ``The [2007 Bush administration] Guidance is 
causing confusion and added delays in an already burdened and 
strained permit decision-making process, which ultimately will 
result (and is resulting) increased delays and costs to the 
public at large.''\7\
---------------------------------------------------------------------------
    \7\Comments of the American Farm Bureau Federation, the National 
Association of Homebuilders, et. al., submitted January 22, 2008.
---------------------------------------------------------------------------
      ``The 2003 SWANCC Guidance and the 2008 Rapanos 
guidance have placed millions of wetland acres and tens of 
thousands of stream miles at risk of pollution and destruction. 
Given the interrelationship between waters, the existing 
Guidance has put all of the Nation's waters at risk by 
retreating from the comprehensive protection needed to achieve 
the Act's goals.''\8\
---------------------------------------------------------------------------
    \8\Comments of the National Wildlife Federation, the Izaak Walton 
League of America, Theodore Roosevelt Conservation Partnership, Trout 
Unlimited, and The Wildlife Society, submitted July 31, 2011.
---------------------------------------------------------------------------
      ``[Clean Water Act] processes and administration 
under the interim guidance released immediately subsequent to 
the SWANCC and Rapanos cases, and under the 2003 and 2008 
guidance, seem to have been universally frustrating. Permit 
applicants, farmers, conservationists, landowners, communities, 
state and local agencies and other affected entities have all 
long expressed a strong desire for greater certainty and 
clearer processes since SWANCC. . .''\9\
---------------------------------------------------------------------------
    \9\Comments of Ducks Unlimited, submitted July 20, 2011.
---------------------------------------------------------------------------
      ``Until a comprehensive set of rules regarding 
which water bodies the Agencies will regulate as waters of the 
United States is promulgated, the public and Agency field staff 
will be beleaguered by partial answers, confusing standards, 
and ad hoc, overbroad, and arbitrary decisions pertaining to 
the scope of federal [Clean Water Act] jurisdiction.''\10\
---------------------------------------------------------------------------
    \10\Comments of the Waters Advocacy Coalition, submitted July 29, 
2011.
---------------------------------------------------------------------------
      ``The members of [the Waters Advocacy Coalition] 
hold the commonsense view that an effective [Clean Water Act] 
enforcement program is essential to protecting our nation's 
jurisdictional waters. A touchstone of an effective enforcement 
program is clarity in the law and implementing regulations. 
Currently, regulations and guidance are ambiguous, leading to 
uncertainty in what the law requires, which makes it difficult 
for the public and the Government. For these reasons, WAC, 
consistent with the opinions expressed by several Justices in 
the Rapanos decision, has urged the U.S. Army Corps of 
Engineers (``Corps'') to conduct a clarifying rulemaking.''\11\
---------------------------------------------------------------------------
    \11\Letter from the Waters Advocacy Coalition to EPA Administrator 
Stephen Johnson, dated August 6, 2008.
---------------------------------------------------------------------------
    According to the Corps, as a result of the current 
regulatory uncertainty, over 66 percent of permit applicants 
voluntarily concede CWA jurisdiction rather than maneuver 
through the formal process outlined by the 2003 and 2008 
guidance documents.
    In response to these calls for greater regulatory 
certainty, on April 21, 2014, the Obama administration proposed 
a new Clean Water rulemaking to replace the existing guidance, 
and to address the uncertainty and bureaucratic process related 
to whether a waterbody (or wetland) is covered by the Act.

Recent statements from the Administration on greater clarification in 
        the Final Rule

    As is common with any rulemaking, the agencies received 
both praise for and concern about the impacts of April 2014 
Clean Water rulemaking. In testimony to our Committee, the 
federal agencies identified several specific areas where the 
proposed rulemaking may lack specificity and have committed to 
make changes to these areas before the rule is finalized later 
this spring.
    For example, the American Farm Bureau Federation expressed 
concern about the distinction between ``ephemeral'' (rain-
dependent) streams, which are currently subject to the Clean 
Water Act, and ``erosional features'' which are not. Recently, 
EPA testified that the agencies expect the final rule to 
clarify the distinction between ephemeral streams and erosional 
features to ensure that the final rule did not, inadvertently, 
bring erosional features under the scope of the Act.
    Similarly, the Farm Bureau expressed concern that the 
proposed Clean Water Protection rule would subject all 
activities, even land use activities, within a ``floodplain'' 
to the Clean Water Act permitting requirements. While EPA 
clarified that, unless an activity involved the discharge of a 
pollutant or the placement of dredge or fill material into a 
``navigable water,'' the Clean Water Act simply does not apply, 
it also recognized the inexact nature of the term 
``floodplain'' in the proposed rule. EPA testified that it 
expected the final rule to provide more clarity and certainty 
on this issue.
    Numerous groups, including the National Association of 
Counties, have expressed concern about the impact of the 
proposed rule on ``ditches''. In response, the agencies 
testified that the proposed rule not only codified the current 
exemption for ditches, but also ``expanded the definition of 
ditches that would be exempt under the Clean Water rule to make 
it clearer, [including] ditches that basically drain dry land 
along public lands and highways.'' Further, the agencies 
committed to provide greater certainty, in the final rule, on 
what ditches are and are not protected by the Act.
    Other groups questioned whether the proposed Clean Water 
rule would capture municipal separate sanitary stormwater sewer 
systems (MS4s) or water reuse or recycling projects. The EPA 
administrator testified that ``EPA has not intended to capture 
features . . . that have already been captured in . . . MS4 
permits, [and it] is our intent to continue to encourage and 
respect those decisions and to encourage water reuse and 
recycling, which very much is consistent with the Clean Water 
Act and our overall intent.'' Further, the administrator 
testified that EPA would make very clear that these exclusions 
are articulated in the final rule ``so that people will see in 
writing what they have been asking us about.''
    Western water supply agencies have also received 
clarification from EPA that the rulemaking will not add 
jurisdictional scope to water supply canals, water transfers, 
or groundwater projects, which are important tools used in the 
West to address historic drought conditions. EPA testified that 
``the proposed rule would not expand jurisdiction over water 
delivery systems [, such as canals used for irrigation, 
industrial, and residential water deliveries]. If such features 
are not covered now under the tests established by the Supreme 
Court, they would not become jurisdictional under the proposed 
rule.'' The EPA also stated that ``the proposed rule would not 
alter the status quo regarding water transfers''. EPA has also 
testified, numerous times, on the jurisdictional status of 
groundwater by stating, ``We explicitly make sure to mention 
that groundwater is not included.''
    Finally, several groups, such as the National Association 
of Home Builders, voiced concern over the proposed rule's 
retaining of the regulatory term ``other waters''. In many 
ways, the jurisdictional status of these waters, which can 
include ``isolated waters''. (e.g., prairie potholes), 
highlights the current legal confusion caused by split Supreme 
Court decisions. Existing regulations cover a broad category of 
``other waters'' which, today, remain legally subject to the 
Act based on ``interstate or foreign commerce'' connections. 
The proposed rule attempted to narrow jurisdiction over these 
waters to only those where the agencies can demonstrate a 
significant connection (nexus) between the water and some other 
jurisdictional water. Yet, even this narrower scope remains 
very case-specific, and does not provide the predictability 
sought in this rulemaking. In response, the agencies are 
exploring a more ``transparent system for people . . . to 
understand what constitutes a significant nexus to comply with 
the instructions that the Supreme Court gave us.''
    As noted above, the agencies have testified that, in many 
ways, the final Clean Water Protection rulemaking will result 
in a clearer, more precise, and more predictable process for 
determining the scope of Clean Water Act protections than 
exists today. This increased clarity and predictability will 
benefit individuals and businesses alike, will ensure continued 
protection of our water-related environment, and will sustain 
our precious way of life.
    However, if H.R. 1732 were to be enacted, we are assured 
that the confused and arbitrary process in place today will 
remain far into the future.

Myths vs. facts on the Clean Water Protection rulemaking

    Unfortunately, over the past decade, much of the debate on 
the reach and application of the Clean Water Act has been 
driven more by the rhetoric than the reality. Nowhere has this 
been more evident than with respect to the 2014 rulemaking 
effort.
    Regrettably, over the past year, opponents of the ongoing 
rulemaking have made several outlandish claims about the intent 
and the potential scope of this rulemaking effort. These claims 
have, intentionally or unintentionally, created more confusion 
and more controversy on an already complicated issue.
    Below are several examples of claims being made by 
opponents of the Clean Water Protection Act:
            Ditches
    Some stakeholder groups have claimed that the proposed rule 
would expand Clean Water Act authority over ditches. However, 
both the Corps and EPA have testified before our Committee that 
the proposed rule actually reduces federal authority over 
ditches by excluding ditches (including roadside ditches) that 
are constructed in dry lands and either (1) contain water less 
that year-round, or (2) do not flow unto another waterbody 
subject to the Act. By comparison, under the existing Bush-era 
guidance, which the proposed rule would replace, similarly 
constructed ditches that contain water on a seasonal or 
intermittent basis are, today, considered subject to the Clean 
Water Act. Accordingly, the scope of ditches covered by the 
proposed rule is narrower than that currently allowed under the 
existing guidance documents.
            Agricultural practices and groundwater
    Others claim that the proposed Clean Water Protection 
rulemaking would expand Clean Water Act authority over common 
agricultural practices or groundwater. Again, the facts 
demonstrate otherwise. For example, the proposed rule provides 
greater certainty to farmers, ranchers, and forestry operations 
by preserving all existing statutory and regulatory exemptions 
for common farming, ranching, and forestry practices, including 
existing exemptions for prior converted croplands, irrigation 
return flows, and ``normal farming, silvicultural, and ranching 
activities, such as plowing, seeding cultivating, minor 
drainage, harvesting for the production of food, fiber, and 
forest products''\12\ Simply put, if you can plow, plant, or 
harvest today without a Clean Water permit, you will not need a 
permit for these activities under the proposed rule.
---------------------------------------------------------------------------
    \12\Section 404(f)(1)(A) of the Clean Water Act (33 
U.S.C.1344(0(1)(A)).
---------------------------------------------------------------------------
    Similarly, contrary to claims, the proposed rule would not 
affect an existing Clean Water Act statutory exemption for the 
construction and maintenance of farm or stock ponds,\13\ and 
would, for the first time, specifically exclude (in the 
regulations) artificial stock watering and irrigation ponds 
constructed on dry lands. The proposed rule also does not 
affect the existing regulatory requirements for pesticide and 
fertilizer applications--meaning if farmers are applying 
pesticides and fertilizer to dry land, the Clean Water Act 
simply does not apply. Finally, the proposed rule definitively 
states that ``puddles . . . obviously are not, and have never 
been thought to be . . . subject to [Clean Water Act] 
jurisdiction.''\14\
---------------------------------------------------------------------------
    \13\Section 404(f)(1)(C) of the Clean Water Act (33 
U.S.C.1344(0(1)(C)).
    \14\See 76 Fed. Reg. 22188, 22218 (April 21, 2014).
---------------------------------------------------------------------------
    On groundwater, again, contrary to claims, the proposed 
rule clarifies but does not expand Clean Water Act 
jurisdiction. Traditionally, the Clean Water Act jurisdiction 
has not been asserted over groundwater resources; however, that 
has been by practice, and not by the specific terms of existing 
Clean Water Act regulations. The proposed rule would, for the 
first time, specifically exclude ``groundwater, including 
groundwater drained through subsurface drainage systems,'' from 
the scope of the Clean Water Act. The heads of both the Corps 
and EPA have specifically testified on this point before our 
Committee, stating definitely that, ``We do not regulate 
groundwater in this rule.''\15\
---------------------------------------------------------------------------
    \15\Statement of Assistant Secretary of the Army, Jo Ellen Darcy, 
Hearing on ``The Impacts of the Proposed Waters of the United States'' 
Rule on State and Local Governments,'' February 4, 2015.
---------------------------------------------------------------------------
            Pubic comment
    Opponents of this rulemaking also repeatedly suggest that 
the Corps and EPA have failed to solicit and obtain public 
comments on this proposed rule. On the contrary, according to 
Federal agency witnesses, the amount of public outreach and 
comment on this proposed rule is ``unprecedented''\16\ the 
history of the Clean Water Act--lasting over 207 days (with two 
extended public comment periods), and garnering close to 1 
million comments.\17\ In addition, EPA consulted with various 
stakeholders, particularly those from the agricultural 
community, and held over 400 public meetings throughout the 
country on the proposed rulemaking.
---------------------------------------------------------------------------
    \16\Statement of the Deputy Assistant Administrator for the Office 
of Water, Ken Kopocis, Hearing on ``The President's 2016 Fiscal Year 
Budget: Administration Priorities for the U.S. Environmental Protection 
Agency,'' March 18, 2015.
    \17\According to EPA, approximately 19,000 of these comments were 
characterizes as ``unique''; with the remaining comments being part of 
several mass-mailing efforts by stakeholder groups.
---------------------------------------------------------------------------
    EPA also utilized special processes for engaging the States 
and local government officials. For the States, EPA worked with 
the Environmental Council of the States, the Association of 
Clean Water Administrators, and the Association of State 
Wetland Managers, to meet with individual state representatives 
on the proposed rule. Further, when describing EPA's meetings 
with state representatives, EPA's Deputy Assistant 
Administrator stated, ``At the last meeting, which was 
scheduled for two hours, it was a little over an hour, and that 
meeting ended because, quite frankly, the states (ran) out of 
things they wanted to talk about.''\18\
---------------------------------------------------------------------------
    \18\Statement of the Deputy Assistant Administrator for the Office 
of Water, Ken Kopocis, Hearing on ``The President's 2016 Fiscal Year 
Budget: Administration Priorities for the U.S. Environmental Protection 
Agency,'' March 18, 2015.
---------------------------------------------------------------------------
    For local governments, EPA established a special Local 
Government Advisory Committee (LGAC) to consult with local 
officials on the proposed Clean Water Protection rule. Four 
separate meetings were held in St. Paul, Minnesota (May 28, 
2014), Atlanta, Georgia (July 10, 2014), Tacoma, Washington 
(August 13, 2014), and Worchester, Massachusetts (September 22, 
2014). These meetings resulted in a specific LGAC report to the 
Administrator of EPA which was published on November 5, 2014.
    It is also important to remember that the April 2014 
proposed rule is not the first effort of the Corps and EPA to 
interpret the scope of Clean Water Act protections since the 
two Supreme Court decisions. As noted earlier, this effort 
marks the sixth effort since 2003 by the Corps and EPA to 
interpret the impact of these decisions on the scope of the 
Act. During that entire time, the Corps and EPA have conducted 
4 formal public comment periods that have, cumulatively, lasted 
over 700 days, and have resulted in the submission of over 1.4 
million comments.
    The magnitude of public outreach and comment on defining 
the five-word phrase ``waters of the United States'' led the 
EPA Deputy Administrator to testify that, ``Quite candidly, I 
will tell you that there is not a lot of new in the way of 
issues that are being raised. Many of the issues that are being 
raised are the same ones that have been raised for several 
years.''\19\ 
---------------------------------------------------------------------------
    \19\Statement of the Deputy Assistant Administrator for the Office 
of Water, Ken Kopocis, Hearing on ``The President's 2016 Fiscal Year 
Budget: Administration Priorities for the U.S. Environmental Protection 
Agency,'' March 18, 2015.
---------------------------------------------------------------------------
            Scientific basis for proposed rule
    Opponents of the proposed rule have also challenged the 
federal agencies on the science underlying the scope of Clean 
Water Act protections, especially as it relates to the 
agencies' interpretation of justice Kennedy's ``significant 
nexus'' test for determining whether a waterbody (or wetland) 
is subject to the Act.
    Recognizing the statutory purposes of the Clean Water Act 
to ``restore and maintain the chemical, physical, and 
biological integrity of the Nation's waters,'' and need for a 
greater scientific understanding of these connections between 
various waters (and wetlands), EPA's Office of Research and 
Development initiated an independent review and synthesis of 
existing peer-reviewed publications from the scientific 
literature on this issue. Note, these publications were, for 
the most part, conducted by non-Federal scientists and 
academics; however, EPA undertook an effort to review these 
independent publications, and compile their results into a 
single ``connectivity report'' that was published, for public 
comment, in September 2013.
    EPA published its final connectivity report, in January 
2015, which noted that ``the scientific literature 
unequivocally demonstrates that streams, individually or 
cumulatively, exert a strong influence on the integrity of 
downstream waters. All tributary streams, including perennial, 
intermittent, and ephemeral streams, are physically, 
chemically, and biologically connected to downstream rivers via 
channels and associated alluvial deposits where water and other 
materials are concentrated, mixed, transformed, and 
transported.'' The connectivity report also noted that ``the 
incremental effects of individual streams and wetlands are 
cumulative across entire watersheds and therefore must be 
evaluated in context with other streams and wetlands.''
    In October 2014, EPA's Science Advisory Board completed its 
own scientific review of the Connectivity report, and concluded 
that the report is ``a thorough and technically accurate review 
of the literature on the connectivity of streams and wetlands 
to downstream waters'' and found that the scientific literature 
provides enough information to support a more definitive 
statement on the degree of connection between certain, 
geographically-isolated waters and downstream waters.

Conclusion

    On April 6, 2015, the Corps and EPA submitted a revised 
Clean Water Protection rule to OMB for final review, and 
publication later this spring.
    The Corps and EPA have testified that this revised final 
Clean Water rulemaking would provide more certainty and more 
clarity to the current permitting process, would reduce 
regulatory confusion and costs, and provide more exacting 
protections over U.S. waters.
    Unfortunately, despite nearly universal calls for increased 
clarity and certainty from stakeholder groups, the Republican 
majority has made it a priority to halt the current Clean Water 
rulemaking, and force the agencies to go back to the drawing 
board and start the process all over again, before the public 
will ever see the final product.
    We have to ask why? Such an approach would perpetuate the 
regulatory confusion that exists today, adding additional costs 
and delay to the construction of vital projects across the 
nation. And, it would leave countless acres of wetlands and 
miles of streams--many of which serve as the primary source of 
drinking water for 117 million Americans--at continued risk to 
pollution and destruction.
    Blocking the agencies from releasing their final product 
simply makes no sense. It provides no certainty to the 
regulated community on where the rules apply, and it leaves 
many of our nation's waters unprotected. Let the agencies 
finish their work, and if Congress wants to revisit this issue 
afterward, it has ample authority to do so.
    For these reasons, we oppose H.R. 1732.

                                   Peter A. DeFazio.
                                   Grace F. Napolitano.
                                   Eleanor Holmes Norton.
                                   Jerrold Nadler.
                                   Michael E. Capuano.
                                   Donna F. Edwards.
                                   Andrre Carson.
                                   Jared Huffman.

                                  [all]