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

                                                       Calendar No. 153
114th CONGRESS
  1st Session
                                S. 1140

                          [Report No. 114-84]

   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, Mr. Hoeven, Mr. Vitter, Mr. 
 Crapo, Mr. Boozman, Mr. Flake, Mr. Cotton, Mr. Perdue, Ms. Murkowski, 
 Mr. Cochran, Mr. Wicker, Mr. Moran, Mr. Thune, Mr. Scott, Mr. Hatch, 
   Mr. Risch, Mr. Grassley, Mr. McCain, Mr. Isakson, Mr. Tillis, Mr. 
Alexander, Mr. Daines, Mr. Coats, Mr. Cornyn, Mr. Heller, Mr. Lee, Mr. 
Cassidy, Mrs. Ernst, Mr. Johnson, Mr. Sasse, Mr. Shelby, and Mr. Enzi) 
introduced the following bill; which was read twice and referred to the 
               Committee on Environment and Public Works

                             July 16, 2015

               Reported by Mr. Inhofe, with an amendment
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]

_______________________________________________________________________

                                 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,

<DELETED>SECTION 1. SHORT TITLE.</DELETED>

<DELETED>    This Act may be cited as the ``Federal Water Quality 
Protection Act''.</DELETED>

<DELETED>SEC. 2. FINDINGS.</DELETED>

<DELETED>    Congress finds that--</DELETED>
        <DELETED>    (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'';</DELETED>
        <DELETED>    (2) adequate consultation with States and local 
        governments and affected entities is necessary--</DELETED>
                <DELETED>    (A) to ensure that Federal departments and 
                agencies understand the scope and impacts of regulatory 
                proposals;</DELETED>
                <DELETED>    (B) to maintain the cooperative federalism 
                foundation of the Federal Water Pollution Control Act 
                (33 U.S.C. 1251 et seq.); and</DELETED>
                <DELETED>    (C) to respect the limits on Federal 
                authority;</DELETED>
        <DELETED>    (3)(A) States have robust water quality protection 
        programs capable of greater regulatory controls on waters not 
        covered by Federal jurisdiction; and</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (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--
        </DELETED>
                <DELETED>    (A) information, including scientific and 
                technical findings, on which the agency relies in 
                taking a regulatory action; and</DELETED>
                <DELETED>    (B) definitions, exclusions, and standards 
                that determine the limits of Federal 
                regulation.</DELETED>

<DELETED>SEC. 3. DEFINITIONS.</DELETED>

<DELETED>    In this Act:</DELETED>
        <DELETED>    (1) Administrator.--The term ``Administrator'' 
        means the Administrator of the Environmental Protection 
        Agency.</DELETED>
        <DELETED>    (2) Body of water.--The term ``body of water'' 
        means a traditional navigable water, territorial sea, river, 
        stream, lake, pond, or wetlands.</DELETED>
        <DELETED>    (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).</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (5) Municipality.--The term ``municipality'' means 
        a city, town, borough, county, parish, district, association, 
        or other public entity that--</DELETED>
                <DELETED>    (A) was established by, or pursuant to, 
                State law; and</DELETED>
                <DELETED>    (B) has authority over the distribution of 
                water or the disposal of sewage, industrial waste, or 
                any other waste.</DELETED>
        <DELETED>    (6) Normal year.--The term ``normal year'' means--
        </DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (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).</DELETED>
        <DELETED>    (8) Public notice and an opportunity for 
        comment.--</DELETED>
                <DELETED>    (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'').</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (9) Secretary.--The term ``Secretary'' means the 
        Secretary of the Army.</DELETED>
        <DELETED>    (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)).</DELETED>
        <DELETED>    (11) Surface hydrologic connection.--</DELETED>
                <DELETED>    (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.</DELETED>
                <DELETED>    (B) Exclusion.--The term ``surface 
                hydrologic connection'' does not include--</DELETED>
                        <DELETED>    (i) overland flow of water outside 
                        a body of water (including sheetflow); 
                        or</DELETED>
                        <DELETED>    (ii) the movement of water through 
                        soil, subsurface tiles, or a groundwater 
                        aquifer.</DELETED>
                <DELETED>    (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--
                </DELETED>
                        <DELETED>    (i) water is not always present; 
                        and</DELETED>
                        <DELETED>    (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.</DELETED>
        <DELETED>    (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).</DELETED>
        <DELETED>    (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).</DELETED>

<DELETED>SEC. 4. REVISED DEFINITION; PRINCIPLES AND PROCESS.</DELETED>

<DELETED>    (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--</DELETED>
        <DELETED>    (1) unless the revision adheres to the principles 
        under subsection (b); and</DELETED>
        <DELETED>    (2) until after the Secretary and the 
        Administrator carry out each action described in subsection 
        (c).</DELETED>
<DELETED>    (b) Principles.--In promulgating a revised regulatory 
definition pursuant to this subsection, the Secretary and the 
Administrator shall adhere to the following principles:</DELETED>
        <DELETED>    (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.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) traditional navigable waters and 
                interstate waters;</DELETED>
                <DELETED>    (B) the reach of a stream that is--
                </DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (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);</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) water that is located below the 
                surface of the land, including soil water and 
                groundwater;</DELETED>
                <DELETED>    (B) water that is not located within a 
                body of water;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (D) a system constructed or used for the 
                purpose of collecting, conveying, holding, or 
                treating--</DELETED>
                        <DELETED>    (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;</DELETED>
                        <DELETED>    (ii) wastewater within the 
                        boundaries of a State, tribal, municipal, 
                        industrial, commercial, agricultural, 
                        silvicultural, residential, or Federal facility 
                        or operation;</DELETED>
                        <DELETED>    (iii) municipal and industrial 
                        water supplies within the boundaries of a 
                        State, tribal, municipal, industrial, 
                        commercial, agricultural, silvicultural, 
                        residential, or Federal facility or operation--
                        </DELETED>
                                <DELETED>    (I) including spreading 
                                basins for aquifer storage and recovery 
                                or aquifer recharge and recovery; 
                                but</DELETED>
                                <DELETED>    (II) not including 
                                instream reservoirs or other instream 
                                facilities; or</DELETED>
                        <DELETED>    (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;</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (G) any water that is no longer a water of 
                the United States pursuant to a permit issued under--
                </DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (ii) section 404 of the Federal 
                        Water Pollution Control Act (33 U.S.C. 
                        1344).</DELETED>
        <DELETED>    (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--
        </DELETED>
                <DELETED>    (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--</DELETED>
                        <DELETED>    (i) is described in subparagraph 
                        (A) or (C) of section 404(f)(1) of that Act (33 
                        U.S.C. 1344(f)(1)); or</DELETED>
                        <DELETED>    (ii) was otherwise exempt from 
                        permitting under that Act; or</DELETED>
                <DELETED>    (B) the system was a traditional navigable 
                water that was converted for use for the purpose 
                described in paragraph (3)(D), unless--</DELETED>
                        <DELETED>    (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);</DELETED>
                        <DELETED>    (ii) the water managed in the 
                        system is--</DELETED>
                                <DELETED>    (I) irrigation return flow 
                                exempt from permitting under section 
                                402(l)(1) of that Act (33 U.S.C. 
                                1342(l)(1)); or</DELETED>
                                <DELETED>    (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));</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (iv) the system is a waste 
                        treatment system.</DELETED>
        <DELETED>    (5) In promulgating a revised definition of waters 
        of the United States, the Secretary or the Administrator shall 
        take into consideration that--</DELETED>
                <DELETED>    (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.);</DELETED>
                <DELETED>    (B) the supply of water to a groundwater 
                aquifer and the storage of water in an isolated body of 
                water are issues that--</DELETED>
                        <DELETED>    (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</DELETED>
                        <DELETED>    (ii) do not provide a basis for 
                        establishing Federal jurisdiction under that 
                        Act (33 U.S.C. 1251 et seq.); and</DELETED>
                <DELETED>    (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.).</DELETED>
        <DELETED>    (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.</DELETED>
<DELETED>    (c) Consideration, Consultation, and Report.--</DELETED>
        <DELETED>    (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)).</DELETED>
        <DELETED>    (2) Federalism.--</DELETED>
                <DELETED>    (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--</DELETED>
                        <DELETED>    (i) States;</DELETED>
                        <DELETED>    (ii) the relationship between the 
                        Federal Government and the States; or</DELETED>
                        <DELETED>    (iii) the distribution of power 
                        and responsibilities among the various levels 
                        of government.</DELETED>
                <DELETED>    (B) Consultation.--</DELETED>
                        <DELETED>    (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--</DELETED>
                                <DELETED>    (I) Governors;</DELETED>
                                <DELETED>    (II) State departments 
                                with authority over water supply and 
                                water quality;</DELETED>
                                <DELETED>    (III) State departments of 
                                agriculture; and</DELETED>
                                <DELETED>    (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.</DELETED>
                        <DELETED>    (ii) Topics.--The topics to be 
                        addressed in the consultation under this 
                        paragraph should include--</DELETED>
                                <DELETED>    (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;</DELETED>
                                <DELETED>    (II) what is the role of 
                                States in the identification of waters 
                                subject to Federal jurisdiction; 
                                and</DELETED>
                                <DELETED>    (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.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) carry out the actions described in 
                sections 603, 604, and 609 of title 5, United States 
                Code; and</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) consider the impacts of the proposed 
                regulation to be direct or indirect; or</DELETED>
                <DELETED>    (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.).</DELETED>
        <DELETED>    (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--
        </DELETED>
                <DELETED>    (A) Executive Order 12866 (5 U.S.C. 601 
                note; relating to regulatory planning and review); 
                and</DELETED>
                <DELETED>    (B) Executive Order 13563 (76 Fed. Reg. 
                3821 (January 18, 2011)).</DELETED>
        <DELETED>    (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--</DELETED>
                <DELETED>    (A) Executive Order 13604 (5 U.S.C. 601 
                note; relating to improving performance of Federal 
                permitting and review of infrastructure projects); 
                and</DELETED>
                <DELETED>    (B) the goal of reducing the time to make 
                decisions in the permitting and review of 
                infrastructure projects by the Federal 
                Government.</DELETED>
        <DELETED>    (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--
        </DELETED>
                <DELETED>    (A) describes the means by which the 
                proposed regulation, if finalized, would achieve 
                compliance with--</DELETED>
                        <DELETED>    (i) Executive Order 12866 (5 
                        U.S.C. 601 note; relating to regulatory 
                        planning and review), including the means by 
                        which--</DELETED>
                                <DELETED>    (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</DELETED>
                                <DELETED>    (II) the Secretary and the 
                                Administrator identified and assessed 
                                available alternatives to direct 
                                regulation;</DELETED>
                        <DELETED>    (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'';</DELETED>
                        <DELETED>    (iii) section 3 of that Executive 
                        order (64 Fed. Reg. 43256 (August 4, 1999)), 
                        which requires agencies--</DELETED>
                                <DELETED>    (I) to strictly adhere to 
                                constitutional principles and statutory 
                                authority;</DELETED>
                                <DELETED>    (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;</DELETED>
                                <DELETED>    (III) to provide States 
                                with maximum administrative discretion 
                                practicable, without intrusive Federal 
                                oversight; and</DELETED>
                                <DELETED>    (IV) to rely on State 
                                policies to the maximum extent 
                                practicable; and</DELETED>
                        <DELETED>    (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;</DELETED>
                <DELETED>    (B) includes the Federalism summary impact 
                statement required by section 3 of Executive Order 
                13132 (64 Fed. Reg. 43256 (August 4, 1999));</DELETED>
                <DELETED>    (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;</DELETED>
                <DELETED>    (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);</DELETED>
                <DELETED>    (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);</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (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.</DELETED>
        <DELETED>    (8) Timing.--In carrying out this section, the 
        Secretary and the Administrator shall use best efforts--
        </DELETED>
                <DELETED>    (A) to provide not less than 180 days for 
                the consultation described in paragraph (2);</DELETED>
                <DELETED>    (B) to provide a comment period on the 
                revised proposed rule of not less than 120 days; 
                and</DELETED>
                <DELETED>    (C) to publish a final rule not later than 
                December 31, 2016.</DELETED>

<DELETED>SEC. 5. MEASURE OF FLOW.</DELETED>

<DELETED>    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.</DELETED>

<DELETED>SEC. 6. REPORT TO CONGRESS.</DELETED>

<DELETED>    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--</DELETED>
        <DELETED>    (1) review the jurisdictional determinations made 
        during the applicable period by the Secretary and the 
        Administrator; and</DELETED>
        <DELETED>    (2) submit to Congress a report that describes--
        </DELETED>
                <DELETED>    (A) the interpretations of the regulation 
                by--</DELETED>
                        <DELETED>    (i) districts of the Corps of 
                        Engineers; and</DELETED>
                        <DELETED>    (ii) regional offices of the 
                        Environmental Protection Agency;</DELETED>
                <DELETED>    (B) whether those interpretations are 
                consistent;</DELETED>
                <DELETED>    (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</DELETED>
                <DELETED>    (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.</DELETED>

<DELETED>SEC. 7. EFFECT OF ACT.</DELETED>

<DELETED>    (a) Permitting Authority.--Nothing in this Act limits the 
authority of the Secretary or the Administrator--</DELETED>
        <DELETED>    (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</DELETED>
        <DELETED>    (2) to take any enforcement action with respect to 
        an unpermitted discharge under that Act.</DELETED>
<DELETED>    (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).</DELETED>
<DELETED>    (c) Retention of State Authority.--Nothing in this Act 
places any limitation on the scope of water subject to State 
jurisdiction under State law.</DELETED>

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 or component was a water of the 
                United States that was converted for use for the 
                purpose described in paragraph (3)(D) after the 
                effective date of initial regulations implementing 
                section 404 of that Act (33 U.S.C. 1344), without a 
                permit under that section unless the construction or 
                use of the system or component--
                            (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 or component was a traditional 
                navigable water that was converted for use for the 
                purpose described in paragraph (3)(D), at any time 
                unless--
                            (i) the system or component 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 or 
                        component 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 
                        or component 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 or component is a waste 
                        treatment system.
            (5) In promulgating a revised definition of waters of the 
        United States, the Secretary and 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) 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 
                        and political subdivisions of 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, 
                                floodplain management, 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 or local 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.
            (2) 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.
            (3) 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.).
            (4) 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)).
            (5) 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.
            (6) 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.
            (7) 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.
                                                       Calendar No. 153

114th CONGRESS

  1st Session

                                S. 1140

                          [Report No. 114-84]

_______________________________________________________________________

                                 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.

_______________________________________________________________________

                             July 16, 2015

                       Reported with an amendment