[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 1178 Introduced in Senate (IS)]

114th CONGRESS
  1st Session
                                S. 1178

     To prohibit implementation of a proposed rule relating to the 
definition of the term ``waters of the United States'' under the Clean 
  Water Act, or any substantially similar rule, until a Supplemental 
Scientific Review Panel and Ephemeral and Intermittent Streams Advisory 
       Committee produce certain reports, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             April 30, 2015

 Mr. Flake (for himself, Mr. McCain, and Mrs. Fischer) introduced the 
 following bill; which was read twice and referred to the Committee on 
                      Environment and Public Works

_______________________________________________________________________

                                 A BILL


 
     To prohibit implementation of a proposed rule relating to the 
definition of the term ``waters of the United States'' under the Clean 
  Water Act, or any substantially similar rule, until a Supplemental 
Scientific Review Panel and Ephemeral and Intermittent Streams Advisory 
       Committee produce certain reports, 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 ``Defending Rivers from Overreaching 
Policies Act of 2015''.

SEC. 2. WATERS OF THE UNITED STATES.

    (a) Findings.--Congress finds that--
            (1) according to the testimony of Assistant Secretary of 
        the Army for Civil Works Jo-Ellen Darcy at the House of 
        Representatives and Senate Joint Hearing on State and Local 
        Impacts of the Administration's Proposed Expansion of Waters 
        Regulation on February 4, 2015, that proposed expansion of 
        waters regulation ``is based on science including a peer-
        reviewed report on connectivity and the recommendations of 
        EPA's Science Advisory Board'';
            (2) the proposed rule entitled ``Definition of `Waters of 
        the United States' Under the Clean Water Act'' (79 Fed. Reg. 
        22188 (April 21, 2014)), was drafted before the science on 
        which the proposed rule was based had been reviewed by the 
        Scientific Advisory Board of the Environmental Protection 
        Agency;
            (3) the final review and synthesis of the scientific 
        evidence was released in January 2015, 2 months after the close 
        of the public comment period for the proposed rule;
            (4) the review and synthesis of the scientific evidence 
        found that ``the degree and downstream effects of those 
        connections [between parts of a watershed] vary spatially and 
        temporally'' and the ``connectivity of streams and wetlands to 
        downstream waters occurs along a continuum'';
            (5) the authors of the review and synthesis were unable to 
        place the water bodies in the case studies ``along a gradient 
        of connectivity'' and reported that ``the research community 
        has not reached a consensus regarding the best methods or 
        metrics to quantify or predict hydrologic or chemical 
        connectivity'';
            (6) without a scientific basis for evaluating the degree of 
        connectivity between a particular stream and a traditionally 
        navigable water, it is premature to use the scientific 
        literature to define which connections are ``significant'';
            (7) because the analysis of the relevant science was 
        completed after the proposed rule described in paragraph (2) 
        was drafted, and because the scientific review failed to 
        produce a method to assess the location of a particular water 
        body on a ``gradient of connectivity'', the resulting proposed 
        rule is not effectively based on science; and
            (8) because the likely cost of implementation of that 
        proposed rule will be greater than the $162,000,000 to 
        $278,000,000 cited in the testimony of Administrator of the 
        Environmental Protection Agency Gina McCarthy at the House of 
        Representatives and Senate joint hearing described in paragraph 
        (1), the proposal will have significant impacts on many sectors 
        of the United States economy.
    (b) Definitions.--In this section:
            (1) Administrator.--The term ``Administrator'' means the 
        Administrator of the Environmental Protection Agency.
            (2) Commission.--The term ``Commission'' means the 
        Commission established under subsection (d)(1).
            (3) Panel.--The term ``Panel'' means the Panel established 
        under subsection (c)(1).
            (4) Proposed rule.--The term ``proposed rule'' means the 
        proposed rule entitled ``Definition of `Waters of the United 
        States' Under the Clean Water Act'' (79 Fed. Reg. 22188 (April 
        21, 2014)).
            (5) Secretary.--The term ``Secretary'' means the Secretary 
        of the Army, acting through the Chief of Engineers.
    (c) Supplemental Scientific Review Panel.--
            (1) Establishment.--The Secretary and the Administrator 
        shall establish a panel, to be known as the ``Supplemental 
        Scientific Review Panel'', to submit to the Secretary and the 
        Administrator recommendations regarding metrics, based on the 
        best available scientific information, to quantify the degree 
        of connectivity between any body of water or wetland and a 
        traditionally navigable water.
            (2) Membership.--
                    (A) In general.--The Panel shall be composed of 9 
                members, of whom--
                            (i) 2 shall be appointed by the Majority 
                        Leader of the Senate;
                            (ii) 2 shall be appointed by the Minority 
                        Leader of the Senate;
                            (iii) 2 shall be appointed by the Speaker 
                        of the House of Representatives;
                            (iv) 2 shall be appointed by the Minority 
                        Leader of the House of Representatives; and
                            (v) 1 shall be appointed by the President 
                        of the National Academy of Engineering.
                    (B) Date of appointments.--The appointment of a 
                member of the Panel shall be made not later than 45 
                days after the date of enactment of this Act.
                    (C) Qualifications.--Each member of the Panel shall 
                be appointed from among individuals who possess--
                            (i) expertise in a field of the 
                        biogeosciences, such as hydrology, ecology, or 
                        geomorphology;
                            (ii)(I) academic excellence, as determined 
                        in accordance with criteria including peer-
                        reviewed journal publications and invited 
                        academic conference presentations; or
                            (II) practical expertise demonstrated by a 
                        record of employment as a professional with 
                        equivalent experience as an academic scientist; 
                        and
                            (iii) experience regarding collecting and 
                        interpreting field measurements of streams and 
                        wetlands.
                    (D) Requirement.--In appointing members of the 
                Panel, each appointing officer referred to in 
                subparagraph (A) shall ensure that the Panel includes 
                balanced representation of research expertise across 
                all Level I ecoregions (as defined in section III of 
                the 1997 publication of the Commission for 
                Environmental Cooperation publication entitled 
                ``Ecological Regions of North America Toward a Common 
                Perspective'').
                    (E) Chairperson.--At the first meeting of the 
                Panel, a majority of the members of the Panel present 
                and voting shall elect the Chairperson of the Panel 
                from among the members of the Panel.
                    (F) Vacancies.--A vacancy on the Panel--
                            (i) shall not affect the powers of the 
                        Panel; and
                            (ii) shall be filled in the same manner as 
                        the original appointment was made.
                    (G) Compensation.--
                            (i) In general.--A member of the Panel--
                                    (I) shall not be considered to be a 
                                Federal employee for any purpose by 
                                reason of service on the Panel; and
                                    (II) shall serve without pay.
                            (ii) Travel expenses.--A member of the 
                        Panel shall be allowed travel expenses, 
                        including per diem in lieu of subsistence, at 
                        rates authorized for an employee of an agency 
                        under subchapter I of chapter 57 of title 5, 
                        United States Code, while away from the home or 
                        regular place of business of the member in the 
                        performance of the duties of the Panel.
                    (H) Initial meeting.--The Panel shall hold the 
                initial meeting of the Panel by not later than 90 days 
                after the date of enactment of this Act.
                    (I) Meetings.--The Panel shall meet at the call of 
                a majority of the members of the Panel.
                    (J) Quorum.--Of the members of the Panel, 5 shall 
                constitute a quorum.
                    (K) Rules of procedure.--The Panel may establish 
                rules for the conduct of business of the Panel, subject 
                to the condition that those rules shall not be 
                inconsistent with this Act or any other applicable law.
            (3) Duties.--The Panel shall--
                    (A) recommend metrics, based on the best available 
                scientific information and considering the duration, 
                magnitude, and frequency of flows, to quantify the 
                degree of connectivity between any body of water or 
                wetland and a traditionally navigable water;
                    (B) ensure the recommended metrics account for 
                regional variability in all types of waterbodies and 
                across all States, the District of Columbia, Puerto 
                Rico, and other territories and possessions of the 
                United States; and
                    (C) not later than 1 year after the date on which 
                the Panel first convenes, submit to the Secretary and 
                Administrator a report describing each recommendation 
                of the Panel to which not fewer than 6 members have 
                agreed.
            (4) Administrative support.--
                    (A) In general.--The Secretary and the 
                Administrator shall provide to the Panel such staff and 
                administrative services as may be necessary and 
                appropriate for the Panel to perform the duties under 
                paragraph (3).
                    (B) Detail of federal government employees.--
                            (i) In general.--An employee of the Federal 
                        Government may be detailed to the Panel without 
                        reimbursement.
                            (ii) Civil service status.--The detail of 
                        the employee shall be without interruption or 
                        loss of civil service status or privilege.
            (5) Funding.--The Secretary and the Administrator shall 
        provide to the Panel such funds as the Secretary and the 
        Administrator determine to be appropriate from amounts made 
        available to the Secretary and the Administrator in 
        appropriations Acts.
            (6) Termination.--The Panel shall terminate on the earlier 
        of--
                    (A) the date that is 180 days after the date on 
                which the report is submitted under paragraph (3)(C); 
                and
                    (B) the date that is 2 years after the date of 
                enactment of this Act.
            (7) Applicability of federal advisory committee act.--
                    (A) In general.--The Federal Advisory Committee Act 
                (5 U.S.C. App.) shall apply to the Panel.
                    (B) Public meetings and release of public versions 
                of reports.--The Panel shall--
                            (i) hold public hearings and meetings to 
                        the extent appropriate; and
                            (ii) release public versions of the report 
                        required under paragraph (3)(C).
                    (C) Public hearings.--Any public hearings of the 
                Panel shall be conducted in a manner consistent with 
                the protection of information provided to or developed 
                for or by the Panel as required by any applicable law, 
                regulation, or Executive order.
    (d) Ephemeral and Intermittent Streams Advisory Commission.--
            (1) Establishment.--The Secretary and the Administrator 
        shall establish a commission, to be known as the ``Ephemeral 
        and Intermittent Streams Advisory Commission'', to develop 
        criteria to define whether a waterbody or wetland has a 
        significant nexus to a traditional navigable water using the 
        metrics developed by the Panel.
            (2) Membership.--
                    (A) In general.--The Commission shall be composed 
                of 15 members, of whom--
                            (i) 2 shall be appointed by the Majority 
                        Leader of the Senate;
                            (ii) 2 shall be appointed by the Minority 
                        Leader of the Senate;
                            (iii) 2 shall be appointed by the Speaker 
                        of the House of Representatives;
                            (iv) 2 shall be appointed by the Minority 
                        Leader of the House of Representatives; and
                            (v) 7 shall be appointed jointly by the 
                        Administrator and the Secretary.
                    (B) Date of appointments.--The appointment of a 
                member of the Commission shall be made not later than 
                the date that is 45 days after the date on which the 
                report of the Panel is submitted under subsection 
                (c)(3)(C).
                    (C) Qualifications.--Each member of the Commission 
                shall be appointed from among individuals who possess--
                            (i) experience regarding the permitting 
                        process under the Federal Water Pollution 
                        Control Act (33 U.S.C. 1251 et seq.);
                            (ii) experience serving on the Panel; or
                            (iii)(I) expertise in a field of the 
                        biogeosciences, such as hydrology, ecology, or 
                        geomorphology; and
                            (II) academic excellence, as determined in 
                        accordance with criteria including peer-
                        reviewed journal publications and invited 
                        academic conference presentations.
                    (D) Requirements.--In appointing members of the 
                Commission, each appointing officer referred to in 
                subparagraph (A) shall ensure that the Commission 
                includes--
                            (i) balanced representation of research 
                        expertise across all Level I ecoregions (as 
                        defined in section III of the 1997 publication 
                        of the Commission for Environmental Cooperation 
                        publication entitled ``Ecological Regions of 
                        North America Toward a Common Perspective''); 
                        and
                            (ii) equal representation of the following 
                        groups:
                                    (I) Individuals who represent--
                                            (aa) the interests of 
                                        builders and developers;
                                            (bb) agricultural 
                                        interests;
                                            (cc) energy and mineral 
                                        development; or
                                            (dd) the commercial timber 
                                        industry.
                                    (II) Individuals who represent--
                                            (aa) nationally or 
                                        regionally recognized 
                                        environmental organizations;
                                            (bb) sport, recreational, 
                                        and commercial fishing 
                                        interests;
                                            (cc) sportsman's 
                                        organizations; or
                                            (dd) municipal water supply 
                                        interests.
                                    (III) Individuals who--
                                            (aa) hold a State, county, 
                                        or local elected office;
                                            (bb) are employed by a 
                                        State agency responsible for 
                                        the management of the 
                                        environment or natural 
                                        interests; or
                                            (cc) represent the affected 
                                        public at-large.
                    (E) Chairperson.--At the first meeting of the 
                Commission, a majority of the members of the Commission 
                present and voting shall elect the Chairperson of the 
                Commission from among the members of the Commission.
                    (F) Vacancies.--A vacancy on the Commission--
                            (i) shall not affect the powers of the 
                        Commission; and
                            (ii) shall be filled in the same manner as 
                        the original appointment was made.
                    (G) Compensation.--
                            (i) In general.--A member of the 
                        Commission--
                                    (I) shall not be considered to be a 
                                Federal employee for any purpose by 
                                reason of service on the Commission; 
                                and
                                    (II) shall serve without pay.
                            (ii) Travel expenses.--A member of the 
                        Commission shall be allowed travel expenses, 
                        including per diem in lieu of subsistence, at 
                        rates authorized for an employee of an agency 
                        under subchapter I of chapter 57 of title 5, 
                        United States Code, while away from the home or 
                        regular place of business of the member in the 
                        performance of the duties of the Commission.
                    (H) Initial meeting.--The Commission shall hold the 
                initial meeting of the Commission not earlier than the 
                date on which the report of the Panel is submitted 
                under subsection (c)(3)(C).
                    (I) Meetings.--The Commission shall meet at the 
                call of a majority of the members of the Commission.
                    (J) Quorum.--Of the members of the Commission, 9 
                shall constitute a quorum.
                    (K) Rules of procedure.--The Commission may 
                establish rules for the conduct of business of the 
                Commission, subject to the condition that those rules 
                shall not be inconsistent with this Act or any other 
                applicable law.
            (3) Duties.--The Commission shall--
                    (A) develop criteria to define whether a waterbody 
                or wetland has a significant nexus to traditional 
                navigable water using the metrics developed by the 
                Panel;
                    (B) ensure those criteria account for regional 
                variability in all types of waterbodies and wetlands 
                and across all States, the District of Columbia, Puerto 
                Rico, and other territories and possessions of the 
                United States;
                    (C) not later than 180 days after the date on which 
                the Commission holds the initial meeting under 
                paragraph (2)(H), submit to the Secretary and the 
                Administrator a draft report that--
                            (i) describes the criteria developed by the 
                        Commission; and
                            (ii) is subject to a 60-day period for 
                        public comment; and
                    (D) after addressing the comments received during 
                the 60-day comment period under subparagraph (C)(ii), 
                submit to the Secretary and the Administrator a final 
                report.
            (4) Administrative support.--
                    (A) In general.--The Secretary and the 
                Administrator shall provide to the Commission such 
                staff and administrative services as may be necessary 
                and appropriate for the Commission to perform the 
                duties under paragraph (3).
                    (B) Detail of federal government employees.--
                            (i) In general.--An employee of the Federal 
                        Government may be detailed to the Commission 
                        without reimbursement.
                            (ii) Civil service status.--The detail of 
                        the employee shall be without interruption or 
                        loss of civil service status or privilege.
            (5) Funding.--The Secretary and the Administrator shall 
        provide to the Commission such funds as the Secretary and the 
        Administrator determine to be appropriate from amounts made 
        available to the Secretary and the Administrator in 
        appropriations Acts.
            (6) Termination.--The Commission shall terminate on the 
        earlier of--
                    (A) the date that is 180 days after the date on 
                which the final report is submitted under paragraph 
                (3)(D); and
                    (B) the date that is 3 years after the date of 
                enactment of this Act.
            (7) Applicability of federal advisory committee act.--
                    (A) In general.--The Federal Advisory Committee Act 
                (5 U.S.C. App.) shall apply to the Commission.
                    (B) Public meetings and release of public versions 
                of reports.--The Commission shall--
                            (i) hold public hearings and meetings to 
                        the extent appropriate; and
                            (ii) release public versions of the reports 
                        required under subparagraphs (C) and (D) of 
                        paragraph (3).
                    (C) Public hearings.--Any public hearings of the 
                Commission shall be conducted in a manner consistent 
                with the protection of information provided to or 
                developed for or by the Commission as required by any 
                applicable law, regulation, or Executive order.
    (e) Prohibition.--The Secretary and the Administrator are 
prohibited from developing, finalizing, adopting, implementing, 
applying, administering, or enforcing the proposed rule or beginning 
the drafting of any substantially similar rule until the date on which 
the Secretary and the Administrator receive a final report from the 
Commission under subsection (d)(3)(D).
                                 <all>