[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1140 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                S. 1140

   To require the Secretary of the Army and the Administrator of the 
 Environmental Protection Agency to propose a regulation revising the 
 definition of the term ``waters of the United States'', and for other 
                               purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 30, 2015

Mr. Barrasso (for himself, Mr. Donnelly, Mr. Inhofe, Ms. Heitkamp, Mr. 
    Roberts, Mr. Manchin, Mr. Sullivan, Mr. Rounds, Mr. Blunt, Mr. 
 McConnell, Mrs. Capito, Mrs. Fischer, and Mr. Hoeven) introduced the 
 following bill; which was read twice and referred to the Committee on 
                      Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
   To require the Secretary of the Army and the Administrator of the 
 Environmental Protection Agency to propose a regulation revising the 
 definition of the term ``waters of the United States'', and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Water Quality Protection 
Act''.

SEC. 2. FINDINGS.

    Congress finds that--
            (1) in section 101(b) of the Federal Water Pollution 
        Control Act (33 U.S.C. 1251(b)), Congress adopted the principle 
        of cooperative federalism, recognizing that ``[i]t is 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 Administrator 
        in the exercise of his authority under this Act'';
            (2) adequate consultation with States and local governments 
        and affected entities is necessary--
                    (A) to ensure that Federal departments and agencies 
                understand the scope and impacts of regulatory 
                proposals;
                    (B) to maintain the cooperative federalism 
                foundation of the Federal Water Pollution Control Act 
                (33 U.S.C. 1251 et seq.); and
                    (C) to respect the limits on Federal authority;
            (3)(A) States have robust water quality protection programs 
        capable of greater regulatory controls on waters not covered by 
        Federal jurisdiction; and
            (B) an exclusion of waters from Federal jurisdiction does 
        not mean that excluded waters will be exempt from regulation 
        and protection, but rather, it recognizes the limits of Federal 
        jurisdiction under the Federal Water Pollution Control Act (33 
        U.S.C. 1251 et seq.) and the primary role of States in 
        protecting State waters; and
            (4) subchapter II of chapter 5, and chapter 7, of title 5, 
        United States Code (commonly known as the ``Administrative 
        Procedure Act''), requires each agency to provide notice and an 
        opportunity to comment regarding--
                    (A) information, including scientific and technical 
                findings, on which the agency relies in taking a 
                regulatory action; and
                    (B) definitions, exclusions, and standards that 
                determine the limits of Federal regulation.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Body of water.--The term ``body of water'' means a 
        traditional navigable water, territorial sea, river, stream, 
        lake, pond, or wetlands.
            (3) Interstate waters.--The term ``interstate waters'' 
        means the water described in section 328.3(a)(2) of title 33, 
        Code of Federal Regulations (as in effect on the day before the 
        date of enactment of this Act).
            (4) Isolated.--The term ``isolated'', with respect to a 
        body of water, means the absence of a surface hydrologic 
        connection to a traditional navigable water.
            (5) Municipality.--The term ``municipality'' means a city, 
        town, borough, county, parish, district, association, or other 
        public entity that--
                    (A) was established by, or pursuant to, State law; 
                and
                    (B) has authority over the distribution of water or 
                the disposal of sewage, industrial waste, or any other 
                waste.
            (6) Normal year.--The term ``normal year'' means--
                    (A) the 30-year hydrologic normal, as that term is 
                used by the Natural Resources Conservation Service of 
                the Department of Agriculture, based on data from a 
                specific geographic area; or
                    (B) if less than 30 years of data described in 
                subparagraph (A) are available, the average of the 
                observed monthly data from a specific geographic area 
                over the period of record.
            (7) Point source.--The term ``point source'' has the 
        meaning given the term in section 502 of the Federal Water 
        Pollution Control Act (33 U.S.C. 1362).
            (8) Public notice and an opportunity for comment.--
                    (A) In general.--The term ``public notice and an 
                opportunity for comment'' means notice and opportunity 
                for comment that meets the requirements of subchapter 
                II of chapter 5, and chapter 7, of title 5, United 
                States Code (commonly known as the ``Administrative 
                Procedure Act'').
                    (B) Inclusion.--The term ``public notice and an 
                opportunity for comment'' includes the opportunity for 
                public hearings in different geographic regions with 
                different hydrology, including separate meetings in the 
                arid West.
            (9) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army.
            (10) Stream.--The term ``stream'' means a natural channel 
        formed by the flow of water that has a bed, bank, and ordinary 
        high water mark (as defined in section 328.3(e) of title 33, 
        Code of Federal Regulations (as in effect on the date of 
        enactment of this Act)).
            (11) Surface hydrologic connection.--
                    (A) In general.--The term ``surface hydrologic 
                connection'' means a continuous surface connection 
                through which water moves within a body of water or 
                from 1 body of water to another.
                    (B) Exclusion.--The term ``surface hydrologic 
                connection'' does not include--
                            (i) overland flow of water outside a body 
                        of water (including sheetflow); or
                            (ii) the movement of water through soil, 
                        subsurface tiles, or a groundwater aquifer.
                    (C) Determination of continuousness.--For purposes 
                of this paragraph, a surface hydrologic connection 
                shall be considered to be continuous if the connection 
                is continuous, regardless of whether--
                            (i) water is not always present; and
                            (ii) there is a break in the ordinary high 
                        water mark of a stream that is unrelated to the 
                        flow regime of the stream, including a break 
                        caused by a culvert, pipe, dam, or by the flow 
                        of the stream underground for a short distance, 
                        such as through a cave.
            (12) Traditional navigable water.--The term ``traditional 
        navigable water'' means the water described in section 
        328.3(a)(1) of title 33, Code of Federal Regulations (as in 
        effect on the date of enactment of this Act).
            (13) Wetlands.--The term ``wetlands'' has the meaning given 
        the term in section 328.3(b) of title 33, Code of Federal 
        Regulations (as in effect on the date of enactment of this 
        Act).

SEC. 4. REVISED DEFINITION; PRINCIPLES AND PROCESS.

    (a) Revised Definition.--A revision to or guidance on a regulatory 
definition of the term ``navigable waters'' or ``waters of the United 
States'' promulgated or issued pursuant to the Federal Water Pollution 
Control Act (33 U.S.C. 1251 et seq.) after February 4, 2015, shall have 
no force or effect--
            (1) unless the revision adheres to the principles under 
        subsection (b); and
            (2) until after the Secretary and the Administrator carry 
        out each action described in subsection (c).
    (b) Principles.--In promulgating a revised regulatory definition 
pursuant to this subsection, the Secretary and the Administrator shall 
adhere to the following principles:
            (1) The Federal Water Pollution Control Act (33 U.S.C. 1251 
        et seq.) is an Act to protect traditional navigable waters from 
        water pollution.
            (2) The term ``waters of the United States'' under the 
        Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) 
        should identify bodies of water subject to Federal 
        jurisdiction, and, except as provided in paragraph (3), should 
        include--
                    (A) traditional navigable waters and interstate 
                waters;
                    (B) the reach of a stream that is--
                            (i) identified on 1 or more maps created 
                        using the United States Geological Survey 
                        National Hydrology Dataset Plus at the 
                        1:100,000 scale from Reach Address Database 
                        Version 3.1, consistent with the scale and 
                        reach address database used by the 
                        Administrator during July 2009, in conjunction 
                        with information on drinking water source 
                        protection areas, to identify potential sources 
                        of water for public drinking water systems; or
                            (ii) for any State for which a map at the 
                        scale described in clause (i) is not available, 
                        identified on a map using the United States 
                        Geological Survey National Hydrology Dataset 
                        Plus at the available scale that is closest to 
                        the scale described in clause (i);
                    (C) the reach of a stream that, through a surface 
                hydrologic connection, contributes flow in a normal 
                year to a traditional navigable water of sufficient 
                volume, duration, and frequency that pollutants in that 
                reach would degrade the water quality of the 
                traditional navigable water, based on a quantifiable 
                and statistically valid measure of flow for that 
                geographic area; and
                    (D) wetlands situated next to a water of the United 
                States that, in a normal year, protect the water 
                quality of a navigable water by preventing the movement 
                of pollutants to a navigable water.
            (3) The term ``waters of the United States'' under the 
        Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.) 
        should not include--
                    (A) water that is located below the surface of the 
                land, including soil water and groundwater;
                    (B) water that is not located within a body of 
                water;
                    (C) an isolated pond, whether natural or manmade, 
                including a farm pond, fish pond, quarry, mine pit, 
                ornamental pond, swimming pool, construction pit, fire 
                control pond, sediment pond, and any other isolated 
                facility or system that holds water;
                    (D) a system constructed or used for the purpose of 
                collecting, conveying, holding, or treating--
                            (i) stormwater or floodwater within the 
                        boundaries of a State, tribal, municipal, 
                        industrial, agricultural, silvicultural, 
                        residential, or Federal facility or operation, 
                        including ditches along agricultural fields, 
                        roads, runways, parking lots, and other 
                        infrastructure;
                            (ii) wastewater within the boundaries of a 
                        State, tribal, municipal, industrial, 
                        commercial, agricultural, silvicultural, 
                        residential, or Federal facility or operation;
                            (iii) municipal and industrial water 
                        supplies within the boundaries of a State, 
                        tribal, municipal, industrial, commercial, 
                        agricultural, silvicultural, residential, or 
                        Federal facility or operation--
                                    (I) including spreading basins for 
                                aquifer storage and recovery or aquifer 
                                recharge and recovery; but
                                    (II) not including instream 
                                reservoirs or other instream 
                                facilities; or
                            (iv) water for agricultural or 
                        silvicultural purposes by a municipality or at 
                        an agricultural or silvicultural facility or 
                        operation, including irrigation water, a fish 
                        production pond, livestock watering pond, 
                        irrigated field, cranberry growing field, rice 
                        production field, manure lagoon, and farm pond;
                    (E) the reach of a stream that, through a surface 
                hydrologic connection, does not contribute flow in a 
                normal year to a traditional navigable water of 
                sufficient volume, duration, and frequency that 
                pollutants in that reach would degrade the water 
                quality of the traditional navigable water, based on a 
                quantifiable and statistically valid measure of flow 
                for that geographic area;
                    (F) prior-converted cropland (as defined in section 
                12.2(a) of title 7, Code of Federal Regulations (as in 
                effect on the date of enactment of this Act)); and
                    (G) any water that is no longer a water of the 
                United States pursuant to a permit issued under--
                            (i) section 10 of the Act of March 3, 1899 
                        (commonly known as the ``Rivers and Harbors 
                        Appropriation Act of 1899'') (33 U.S.C. 403); 
                        or
                            (ii) section 404 of the Federal Water 
                        Pollution Control Act (33 U.S.C. 1344).
            (4) Unless a subparagraph of paragraph (3) other than 
        subparagraph (D) applies, for purposes of the Federal Water 
        Pollution Control Act (33 U.S.C. 1251 et seq.), the term 
        ``waters of the United States'' should include a system 
        described in paragraph (3)(D), or a component of such a system, 
        if the Secretary or the Administrator demonstrates that--
                    (A) the system was a water of the United States 
                that was converted for use for the purpose described in 
                paragraph (3)(D) after October 18, 1972, without a 
                permit under section 404 of that Act (33 U.S.C. 1344), 
                unless the construction or use of the system--
                            (i) is described in subparagraph (A) or (C) 
                        of section 404(f)(1) of that Act (33 U.S.C. 
                        1344(f)(1)); or
                            (ii) was otherwise exempt from permitting 
                        under that Act; or
                    (B) the system was a traditional navigable water 
                that was converted for use for the purpose described in 
                paragraph (3)(D), unless--
                            (i) the system is identified as a point 
                        source in a permit issued under section 402 of 
                        the Federal Water Pollution Control Act (33 
                        U.S.C. 1342);
                            (ii) the water managed in the system is--
                                    (I) irrigation return flow exempt 
                                from permitting under section 402(l)(1) 
                                of that Act (33 U.S.C. 1342(l)(1)); or
                                    (II) agricultural stormwater or 
                                return flows from irrigated agriculture 
                                exempt from permitting under section 
                                502(14) of that Act (33 U.S.C. 
                                1362(14));
                            (iii) the construction or use of the system 
                        is described in subparagraph (A) or (C) of 
                        section 404(f)(1) of that Act (33 U.S.C. 
                        1344(f)(1)); or
                            (iv) the system is a waste treatment 
                        system.
            (5) In promulgating a revised definition of waters of the 
        United States, the Secretary or the Administrator shall take 
        into consideration that--
                    (A) the use of a body of water by an organism, 
                including a migratory bird, does not provide a basis 
                for establishing Federal jurisdiction under the Federal 
                Water Pollution Control Act (33 U.S.C. 1251 et seq.);
                    (B) the supply of water to a groundwater aquifer 
                and the storage of water in an isolated body of water 
                are issues that--
                            (i) pertain to the use of water resources 
                        that shall not be superseded, abrogated, or 
                        otherwise impaired by the Federal Water 
                        Pollution Control Act (33 U.S.C. 1251 et seq.) 
                        pursuant to sections 101(g) and 510(2) of that 
                        Act (33 U.S.C. 1251(g), 1370(2)); and
                            (ii) do not provide a basis for 
                        establishing Federal jurisdiction under that 
                        Act (33 U.S.C. 1251 et seq.); and
                    (C) evaporation, transpiration, condensation, 
                precipitation, the overland flow of water, and the 
                movement of water in an aquifer are all part of the 
                water cycle and may connect all water over sufficiently 
                long periods of time and distances, but do not provide 
                a basis for establishing Federal jurisdiction under the 
                Federal Water Pollution Control Act (33 U.S.C. 1251 et 
                seq.).
            (6) Waters that are waters of the United States should be 
        identified on maps provided by the Secretary and the 
        Administrator to promote certainty and transparency in 
        jurisdictional determinations.
    (c) Consideration, Consultation, and Report.--
            (1) Consideration of public comments.--Before issuing a 
        proposed regulation pursuant to subsection (a), the Secretary 
        and the Administrator shall make available to the public, 
        review, and publish a response to comments filed regarding the 
        proposed rule entitled ``Definition of `Waters of the United 
        States' Under the Clean Water Act'' of the Corps of Engineers 
        and the Environmental Protection Agency (79 Fed. Reg. 22188 
        (April 21, 2014)).
            (2) Federalism.--
                    (A) In general.--In proposing and promulgating a 
                regulation pursuant to subsection (a), the Secretary 
                and the Administrator shall ensure compliance with the 
                federalism policymaking criteria and consultation in 
                accordance with Executive Order 13132 (64 Fed. Reg. 
                43255 (August 4, 1999)), regardless of whether the 
                Secretary and the Administrator determine that the 
                regulation would have any substantial and direct effect 
                on--
                            (i) States;
                            (ii) the relationship between the Federal 
                        Government and the States; or
                            (iii) the distribution of power and 
                        responsibilities among the various levels of 
                        government.
                    (B) Consultation.--
                            (i) In general.--To be considered 
                        meaningful consultation described in section 
                        101(b) of the Federal Water Pollution Control 
                        Act (33 U.S.C. 1251(b)), before publication of 
                        a proposed rule under this section, 
                        consultation shall include a discussion of 
                        alternative approaches with and a request for 
                        input and advice on the approaches from States, 
                        including--
                                    (I) Governors;
                                    (II) State departments with 
                                authority over water supply and water 
                                quality;
                                    (III) State departments of 
                                agriculture; and
                                    (IV) local governments, including 
                                elected officials, local governmental 
                                entities with authority over water 
                                supply, stormwater, waste water, and 
                                flood control, irrigation districts, 
                                and conservation districts.
                            (ii) Topics.--The topics to be addressed in 
                        the consultation under this paragraph should 
                        include--
                                    (I) categories of waters, in 
                                addition to those discussed in 
                                paragraphs (2) and (3) of subsection 
                                (b), that should be subject to Federal 
                                jurisdiction or should be subject 
                                solely to State regulation;
                                    (II) what is the role of States in 
                                the identification of waters subject to 
                                Federal jurisdiction; and
                                    (III) whether channels in which 
                                water is present only during or for a 
                                short time after a precipitation event 
                                are correctly categorized as 
                                geomorphological features rather than 
                                hydrologic features.
            (3) Regulatory flexibility.--In proposing and promulgating 
        a regulation pursuant to subsection (a), and regardless of 
        whether the Secretary and the Administrator determine that the 
        regulation would have a significant impact on a substantial 
        number of small entities, the Secretary and the Administrator 
        shall--
                    (A) carry out the actions described in sections 
                603, 604, and 609 of title 5, United States Code; and
                    (B) in carrying out those actions, take into 
                consideration the costs of all programs under the 
                Federal Water Pollution Control Act (33 U.S.C. 1251 et 
                seq.), regardless of whether the Secretary and the 
                Administrator consider the costs of the proposed 
                regulation to be direct or indirect.
            (4) Unfunded mandates.--In proposing and promulgating a 
        regulation pursuant to subsection (a), the Secretary and the 
        Administrator shall evaluate the intergovernmental and private 
        sector impacts of the regulation, in accordance with title II 
        of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et 
        seq.), regardless of whether the Secretary and the 
        Administrator--
                    (A) consider the impacts of the proposed regulation 
                to be direct or indirect; or
                    (B) determine that expenditures resulting from the 
                proposed regulation would meet the monetary thresholds 
                established in that Act (2 U.S.C. 1501 et seq.).
            (5) Improving regulation and regulatory review.--In 
        proposing and promulgating a regulation pursuant to subsection 
        (a), regardless of whether the Secretary and the Administrator 
        consider the regulation to be a significant regulatory action 
        or significantly affect State, local, and tribal governments, 
        the Secretary and the Administrator shall ensure that the 
        regulation meets the requirements of--
                    (A) Executive Order 12866 (5 U.S.C. 601 note; 
                relating to regulatory planning and review); and
                    (B) Executive Order 13563 (76 Fed. Reg. 3821 
                (January 18, 2011)).
            (6) Improving performance of federal permitting and review 
        of infrastructure projects.--In proposing and promulgating a 
        regulation pursuant to subsection (a), the Secretary and the 
        Administrator shall consider--
                    (A) Executive Order 13604 (5 U.S.C. 601 note; 
                relating to improving performance of Federal permitting 
                and review of infrastructure projects); and
                    (B) the goal of reducing the time to make decisions 
                in the permitting and review of infrastructure projects 
                by the Federal Government.
            (7) Report.--Not later than the date that is 30 days before 
        the date of issuance of a proposed regulation pursuant to 
        subsection (a), the Secretary and the Administrator shall 
        submit to the Committee on Environment and Public Works of the 
        Senate and the Committee on Transportation and Infrastructure 
        of the House of Representatives a report that--
                    (A) describes the means by which the proposed 
                regulation, if finalized, would achieve compliance 
                with--
                            (i) Executive Order 12866 (5 U.S.C. 601 
                        note; relating to regulatory planning and 
                        review), including the means by which--
                                    (I) the regulation would impose the 
                                least burden on society, consistent 
                                with obtaining regulatory objectives, 
                                taking into account, among other 
                                things, and to the maximum extent 
                                practicable, the costs of cumulative 
                                regulations; and
                                    (II) the Secretary and the 
                                Administrator identified and assessed 
                                available alternatives to direct 
                                regulation;
                            (ii) section 2(i) of Executive Order 13132 
                        (64 Fed. Reg. 43256 (August 4, 1999)), which 
                        requires agencies to ``act only with the 
                        greatest caution where State or local 
                        governments have identified uncertainties 
                        regarding the constitutional or statutory 
                        authority of the national government'';
                            (iii) section 3 of that Executive order (64 
                        Fed. Reg. 43256 (August 4, 1999)), which 
                        requires agencies--
                                    (I) to strictly adhere to 
                                constitutional principles and statutory 
                                authority;
                                    (II) to take action limiting the 
                                policymaking discretion of the States 
                                only in cases in which there exists 
                                constitutional and statutory authority 
                                for the action;
                                    (III) to provide States with 
                                maximum administrative discretion 
                                practicable, without intrusive Federal 
                                oversight; and
                                    (IV) to rely on State policies to 
                                the maximum extent practicable; and
                            (iv) Executive Order 13563 (76 Fed. Reg. 
                        3821 (January 18, 2011)), including the public 
                        participation requirements of section 2 of that 
                        Executive order, which require an opportunity 
                        for public comment regarding all pertinent 
                        parts of the rulemaking docket, including 
                        relevant scientific and technical findings and 
                        seeking the views of those who are likely to be 
                        affected before issuing a notice of proposed 
                        rulemaking;
                    (B) includes the Federalism summary impact 
                statement required by section 3 of Executive Order 
                13132 (64 Fed. Reg. 43256 (August 4, 1999));
                    (C) includes the regulatory flexibility analyses 
                required under section 603 of title 5, United States 
                Code, and the report of the review panel required under 
                section 609 of that title;
                    (D) describes the small government agency plan, and 
                the State, local, and tribal input under sections 203 
                and 204 of the Unfunded Mandates Reform Act of 1995 (2 
                U.S.C. 1533, 1534);
                    (E) describes the means by which the proposed 
                regulation is the least costly, most cost-effective, or 
                least burdensome alternative, in accordance with 
                section 205 of the Unfunded Mandates Reform Act of 1995 
                (2 U.S.C. 1535);
                    (F) describes whether the Secretary and the 
                Administrator will provide funding to State, local, and 
                tribal governments to meet the intergovernmental 
                mandates imposed by the proposed regulation; and
                    (G) describes how the proposed rule will achieve 
                the goal stated in section 1 of Executive Order 13604 
                (5 U.S.C. 601 note; relating to improving performance 
                of Federal permitting and review of infrastructure 
                projects) that the time to make decisions in the 
                permitting and review of infrastructure projects by the 
                Federal Government be reduced.
            (8) Timing.--In carrying out this section, the Secretary 
        and the Administrator shall use best efforts--
                    (A) to provide not less than 180 days for the 
                consultation described in paragraph (2);
                    (B) to provide a comment period on the revised 
                proposed rule of not less than 120 days; and
                    (C) to publish a final rule not later than December 
                31, 2016.

SEC. 5. MEASURE OF FLOW.

    After providing public notice and an opportunity for comment, the 
Secretary shall establish quantifiable and statistically valid measures 
of the volume, duration, and frequency of flow in streams in different 
geographic areas that would, in a normal year, allow pollutants in 
reaches of streams in those geographic areas to flow to and degrade the 
water quality of a traditional navigable water.

SEC. 6. REPORT TO CONGRESS.

    Not later than the date that is 3 years after the date of 
promulgation of a regulation pursuant to section 4, and not less 
frequently than once every 3 years thereafter, the Comptroller General 
of the United States, after consultation with State, local, and tribal 
governments and other affected entities, shall--
            (1) review the jurisdictional determinations made during 
        the applicable period by the Secretary and the Administrator; 
        and
            (2) submit to Congress a report that describes--
                    (A) the interpretations of the regulation by--
                            (i) districts of the Corps of Engineers; 
                        and
                            (ii) regional offices of the Environmental 
                        Protection Agency;
                    (B) whether those interpretations are consistent;
                    (C) if any inconsistency exists, the measures 
                carried out by the Secretary and the Administrator to 
                reduce the inconsistency or an explanation of the 
                geographic differences that make the inconsistency 
                appropriate; and
                    (D) the impacts of those interpretations on Federal 
                permitting and review of infrastructure projects, and 
                the goal stated in section 1 of Executive Order 13604 
                (5 U.S.C. 601 note; relating to improving performance 
                of Federal permitting and review of infrastructure 
                projects) that the time to make decisions in the 
                permitting and review of infrastructure projects by the 
                Federal Government be reduced.

SEC. 7. EFFECT OF ACT.

    (a) Permitting Authority.--Nothing in this Act limits the authority 
of the Secretary or the Administrator--
            (1) to require a permit for any discharge of pollutants to 
        a navigable water under the Federal Water Pollution Control Act 
        (33 U.S.C. 1251 et seq.); or
            (2) to take any enforcement action with respect to an 
        unpermitted discharge under that Act.
    (b) Water Transfers.--Nothing in this Act affects a determination 
regarding whether the transfer of water from 1 body of water to another 
requires a permit under section 402 of the Federal Water Pollution 
Control Act (33 U.S.C. 1342).
    (c) Retention of State Authority.--Nothing in this Act places any 
limitation on the scope of water subject to State jurisdiction under 
State law.
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