[Congressional Record Volume 159, Number 62 (Monday, May 6, 2013)]
[Senate]
[Pages S3093-S3096]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCONNELL (for himself and Mr. Paul):
  S. 861. A bill to amend the Federal Water Pollution Control Act to 
provide guidance and clarification regarding issuing new and renewal 
permits, and for other purposes; to the Committee on Environment and 
Public Works.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the text 
of the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                 S. 861

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

     SECTION 1. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM.

       (a) Applicability of Guidance.--Section 402 of the Federal 
     Water Pollution Control Act (33 U.S.C. 1342) is amended by 
     adding at the end the following:
       ``(s) Applicability of Guidance.--
       ``(1) Definitions.--In this subsection:
       ``(A) Guidance.--
       ``(i) In general.--The term `guidance' means draft, 
     interim, or final guidance issued by the Administrator.
       ``(ii) Inclusions.--The term `guidance' includes--

       ``(I) the comprehensive guidance issued by the 
     Administrator and dated April 1, 2010;
       ``(II) the proposed guidance entitled `Draft Guidance on 
     Identifying Waters Protected by the Clean Water Act' and 
     dated April 28, 2011;
       ``(III) the final guidance proposed by the Administrator 
     and dated July 21, 2011; and
       ``(IV) any other document or paper issued by the 
     Administrator through any process other than the notice and 
     comment rulemaking process.

       ``(B) New permit.--The term `new permit' means a permit 
     covering discharges from a structure--
       ``(i) that is issued under this section by a permitting 
     authority; and
       ``(ii) for which an application is--

       ``(I) pending as of the date of enactment of this 
     subsection; or
       ``(II) filed on or after the date of enactment of this 
     subsection.

       ``(C) Permitting authority.--The term `permitting 
     authority' means--
       ``(i) the Administrator; or
       ``(ii) a State, acting pursuant to a State program that is 
     equivalent to the program under this section and approved by 
     the Administrator.
       ``(2) Permits.--
       ``(A) In general.--Notwithstanding any other provision of 
     law, in making a determination whether to approve a new 
     permit or a renewed permit, the permitting authority--
       ``(i) shall base the determination only on compliance with 
     regulations issued by the Administrator or the permitting 
     authority; and
       ``(ii) shall not base the determination on the extent of 
     adherence of the applicant for the new permit or renewed 
     permit to guidance.
       ``(B) New permits.--If the permitting authority does not 
     approve or deny an application for a new permit by the date 
     that is 270 days after the date of receipt of the application 
     for the new permit, the applicant may operate as if the 
     application were approved in accordance with Federal law for 
     the period of time for which a permit from the same industry 
     would be approved.
       ``(C) Substantial completeness.--In determining whether an 
     application for a new permit or a renewed permit received 
     under this paragraph is substantially complete, the 
     permitting authority shall use standards for determining 
     substantial completeness of similar permits for similar 
     facilities submitted in fiscal year 2007.''.
       (b) State Permit Programs.--
       (1) In general.--Section 402 of the Federal Water Pollution 
     Control Act (33 U.S.C. 1342) is amended by striking 
     subsection (b) and inserting the following:
       ``(b) State Permit Programs.--
       ``(1) In general.--At any time after the promulgation of 
     the guidelines required by section 304(I)(2), the Governor of 
     each State desiring to administer a permit program for

[[Page S3094]]

     discharges into navigable waters within the jurisdiction of 
     the State may submit to the Administrator--
       ``(A) a full and complete description of the program the 
     State proposes to establish and administer under State law or 
     under an interstate compact; and
       ``(B) a statement from the attorney general (or the 
     attorney for those State water pollution control agencies 
     that have independent legal counsel), or from the chief legal 
     officer in the case of an interstate agency, that the laws of 
     the State, or the interstate compact, as applicable, provide 
     adequate authority to carry out the described program.
       ``(2) Approval.--The Administrator shall approve each 
     program for which a description is submitted under paragraph 
     (1) unless the Administrator determines that adequate 
     authority does not exist--
       ``(A) to issue permits that--
       ``(i) apply, and ensure compliance with, any applicable 
     requirements of sections 301, 302, 306, 307, and 403;
       ``(ii) are for fixed terms not exceeding 5 years; and
       ``(iii) can be terminated or modified for cause including--
       ``(I) a violation of any condition of the permit;
       ``(II) obtaining a permit by misrepresentation or failure 
     to disclose fully all relevant facts; and
       ``(III) a change in any condition that requires either a 
     temporary or permanent reduction or elimination of the 
     permitted discharge;
       ``(iv) control the disposal of pollutants into wells;
       ``(B)(i) to issue permits that apply, and ensure compliance 
     with, all applicable requirements of section 308; or
       ``(ii) to inspect, monitor, enter, and require reports to 
     at least the same extent as required in section 308;
       ``(C) to ensure that the public, and any other State the 
     waters of which may be affected, receives notice of each 
     application for a permit and an opportunity for a public 
     hearing before a ruling on each application;
       ``(D) to ensure that the Administrator receives notice and 
     a copy of each application for a permit;
       ``(E) to ensure that any State (other than the permitting 
     State), whose waters may be affected by the issuance of a 
     permit may submit written recommendations to the permitting 
     State and the Administrator with respect to any permit 
     application and, if any part of the written recommendations 
     are not accepted by the permitting State, that the permitting 
     State will notify the affected State and the Administrator in 
     writing of the failure of the State to accept the 
     recommendations, including the reasons for not accepting the 
     recommendations;
       ``(F) to ensure that no permit will be issued if, in the 
     judgment of the Secretary of the Army acting through the 
     Chief of Engineers, after consultation with the Secretary of 
     the department in which the Coast Guard is operating, 
     anchorage and navigation of any of the navigable waters would 
     be substantially impaired by the issuance of the permit;
       ``(G) to abate violations of the permit or the permit 
     program, including civil and criminal penalties and other 
     means of enforcement;
       ``(H) to ensure that any permit for a discharge from a 
     publicly owned treatment works includes conditions to require 
     the identification in terms of character and volume of 
     pollutants of any significant source introducing pollutants 
     subject to pretreatment standards under section 307(b) into 
     the treatment works and a program to ensure compliance with 
     those pretreatment standards by each source, in addition to 
     adequate notice, which shall include information on the 
     quality and quantity of effluent to be introduced into the 
     treatment works and any anticipated impact of the change in 
     the quantity or quality of effluent to be discharged from the 
     publicly owned treatment works, to the permitting agency of--
       ``(i) new introductions into the treatment works of 
     pollutants from any source that would be a new source as 
     defined in section 306 if the source were discharging 
     pollutants;
       ``(ii) new introductions of pollutants into the treatment 
     works from a source that would be subject to section 301 if 
     the source were discharging those pollutants; or
       ``(iii) a substantial change in volume or character of 
     pollutants being introduced into the treatment works by a 
     source introducing pollutants into the treatment works at the 
     time of issuance of the permit; and
       ``(I) to ensure that any industrial user of any publicly 
     owned treatment works will comply with sections 204(b), 307, 
     and 308.
       ``(3) Administration.--Notwithstanding paragraph (2), the 
     Administrator may not disapprove or withdraw approval of a 
     program under this subsection on the basis of the following:
       ``(A) The failure of the program to incorporate or comply 
     with guidance (as defined in subsection (s)(1)).
       ``(B) The implementation of a water quality standard that 
     has been adopted by the State and approved by the 
     Administrator under section 303(c).''.
       (2) Conforming amendments.--
       (A) Section 309 of the Federal Water Pollution Control Act 
     (33 U.S.C. 1319) is amended--
       (i) in subsection (c)--

       (I) in paragraph (1)(A), by striking ``402(b)(8)'' and 
     inserting ``402(b)(2)(H)''; and
       (II) in paragraph (2)(A), by striking ``402(b)(8)'' and 
     inserting ``402(b)(2)(H)''; and

       (ii) in subsection (d), in the first sentence, by striking 
     ``402(b)(8)'' and inserting ``402(b)(2)(H)''.
       (B) Section 402(m) of the Federal Water Pollution Control 
     Act (33 U.S.C. 1342(m)) is amended in the first sentence by 
     striking ``subsection (b)(8) of this section'' and inserting 
     ``subsection (b)(2)(H)''.
       (c) Suspension of Federal Program.--Section 402(c) of the 
     Federal Water Pollution Control Act (33 U.S.C. 1342(c)) is 
     amended--
       (1) by redesignating paragraph (4) as paragraph (5); and
       (2) by inserting after paragraph (3) the following:
       ``(4) Limitation on disapproval.--Notwithstanding 
     paragraphs (1) through (3), the Administrator may not 
     disapprove or withdraw approval of a State program under 
     subsection (b) on the basis of the failure of the following:
       ``(A) The failure of the program to incorporate or comply 
     with guidance (as defined in subsection (s)(1)).
       ``(B) The implementation of a water quality standard that 
     has been adopted by the State and approved by the 
     Administrator under section 303(c).''.
       (d) Notification of Administrator.--Section 402(d)(2) of 
     the Federal Water Pollution Control Act (33 U.S.C. 
     1342(d)(2)) is amended--
       (1) by striking ``(2) No'' and inserting the following:
       ``(2) Objection by administrator.--
       ``(A) In general.--Subject to subparagraph (C), no permit 
     shall issue if--
       ``(i) not later than 90 days after the date on which the 
     Administrator receives notification under subsection 
     (b)(2)(E), the Administrator objects in writing to the 
     issuance of the permit; or
       ``(ii) not later than 90 days after the date on which the 
     proposed permit of the State is transmitted to the 
     Administrator, the Administrator objects in writing to the 
     issuance of the permit as being outside the guidelines and 
     requirements of this Act.'';
       (2) in the second sentence, by striking ``Whenever the 
     Administrator'' and inserting the following:
       ``(B) Requirements.--If the Administrator''; and
       (3) by adding at the end the following:
       ``(C) Exception.--The Administrator shall not object to or 
     deny the issuance of a permit by a State under subsection (b) 
     or (s) based on the following:
       ``(i) Guidance, as that term is defined in subsection 
     (s)(1).
       ``(ii) The Administrator's interpretation of a water 
     quality standard that has been adopted by the State and 
     approved by the Administrator under section 303(c).''.

     SEC. 2. PERMITS FOR DREDGED OR FILL MATERIAL.

       (a) In General.--Section 404(a) of the Federal Water 
     Pollution Control Act (33 U.S.C. 1344(a)) is amended--
       (1) by striking the section heading and all that follows 
     through ``Sec. 404. (a) The Secretary may issue'' and 
     inserting the following:

     ``SEC. 404. PERMITS FOR DREDGED OR FILL MATERIAL.

       ``(a) Permits.--
       ``(1) In general.--The Secretary may issue''; and
       (2) by adding at the end the following:
       ``(2) Deadline for approval.--
       ``(A) Permit applications.--
       ``(i) In general.--Except as provided in clause (ii), if an 
     environmental assessment or environmental impact statement, 
     as appropriate, is required under the National Environmental 
     Policy Act of 1969 (42 U.S.C. 4321 et seq.), the Secretary 
     shall--

       ``(I) begin the process not later than 90 days after the 
     date on which the Secretary receives a permit application; 
     and
       ``(II) approve or deny an application for a permit under 
     this subsection not later than the latter of--

       ``(aa) if an agency carries out an environmental assessment 
     that leads to a finding of no significant impact, the date on 
     which the finding of no significant impact is issued; or
       ``(bb) if an agency carries out an environmental assessment 
     that leads to a record of decision, 15 days after the date on 
     which the record of decision on an environmental impact 
     statement is issued.
       ``(ii) Processes.--Notwithstanding clause (i), regardless 
     of whether the Secretary has commenced an environmental 
     assessment or environmental impact statement by the date 
     described in clause(i)(I), the following deadlines shall 
     apply:

       ``(I) An environmental assessment carried out under the 
     National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
     seq.) shall be completed not later than 1 year after the 
     deadline for commencing the permit process under clause 
     (i)(I).
       ``(II) An environmental impact statement carried out under 
     the National Environmental Policy Act of 1969 (42 U.S.C. 4321 
     et seq.) shall be completed not later than 2 years after the 
     deadline for commencing the permit process under clause 
     (i)(I).

       ``(B) Failure to act.--If the Secretary fails to act by the 
     deadline specified in clause (i) or (ii) of subparagraph 
     (A)--
       ``(i) the application, and the permit requested in the 
     application, shall be considered to be approved;
       ``(ii) the Secretary shall issue a permit to the applicant; 
     and
       ``(iii) the permit shall not be subject to judicial 
     review.''.

[[Page S3095]]

       (b) State Permitting Programs.--
       (1) Authority of epa administrator.--Section 404(c) of the 
     Federal Water Pollution Control Act (33 U.S.C. 1344(c)) is 
     amended by striking ``(c)'' and inserting the following:
       ``(c) Authority of EPA Administrator. .--
       ``(1) Possible prohibition of specification.--Until such 
     time as the Secretary has issued a permit under this section, 
     the Administrator is authorized to prohibit the specification 
     (including the withdrawal of specification) of any defined 
     area as a disposal site, and he is authorized to deny or 
     restrict the use of any defined area for specification 
     (including the withdrawal of specification) as a disposal 
     site, whenever he determines, after notice and opportunity 
     for public hearings, that the discharge of such materials 
     into such area will have an unacceptable adverse effect on 
     municipal water supplies, shellfish beds and fishery areas 
     (including spawning and breeding areas), wildlife, or 
     recreational areas. Before making such determination, the 
     Administrator shall consult with the Secretary. The 
     Administrator shall set forth in writing and make public his 
     findings and his reasons for making any determination under 
     this subsection.
       ``(2) Authority of state permitting programs.--Paragraph 
     (1) shall not apply to any permit if the State in which the 
     discharge originates or will originate does not concur with 
     the Administrator's determination that the discharge will 
     result in an unacceptable adverse effect as described in 
     paragraph (1).''.
       (c) State Programs.--The first sentence of section 
     404(g)(1) of such Act (33 U.S.C. 1344(g)(1)) is amended by 
     striking ``for the discharge'' and inserting ``for some or 
     all of the discharges''.

     SEC. 3. IMPACTS OF EPA REGULATORY ACTIVITY ON EMPLOYMENT AND 
                   ECONOMIC ACTIVITY.

       (a) Analysis of Impacts of Actions on Employment and 
     Economic Activity.--
       (1) Analysis.--Before taking a covered action, the 
     Administrator shall analyze the impact, disaggregated by 
     State, of the covered action on employment levels and 
     economic activity, including estimated job losses and 
     decreased economic activity.
       (2) Economic models.--
       (A) In general.--In carrying out paragraph (1), the 
     Administrator shall utilize the best available economic 
     models.
       (B) Annual gao report.--Not later than December 31st of 
     each year, the Comptroller General of the United States shall 
     submit to Congress a report on the economic models used by 
     the Administrator to carry out this subsection.
       (3) Availability of information.--With respect to any 
     covered action, the Administrator shall--
       (A) post the analysis under paragraph (1) as a link on the 
     main page of the public Internet Web site of the 
     Environmental Protection Agency; and
       (B) request that the Governor of any State experiencing 
     more than a de minimis negative impact post such analysis in 
     the Capitol of such State.
       (b) Public Hearings.--
       (1) In general.--If the Administrator concludes under 
     subsection (a)(1) that a covered action will have more than a 
     de minimis negative impact on employment levels or economic 
     activity in a State, the Administrator shall hold a public 
     hearing in each such State at least 30 days prior to the 
     effective date of the covered action.
       (2) Time, location, and selection.--A public hearing 
     required under paragraph (1) shall be held at a convenient 
     time and location for impacted residents. In selecting a 
     location for such a public hearing, the Administrator shall 
     give priority to locations in the State that will experience 
     the greatest number of job losses.
       (c) Notification.--If the Administrator concludes under 
     subsection (a)(1) that a covered action will have more than a 
     de minimis negative impact on employment levels or economic 
     activity in any State, the Administrator shall give notice of 
     such impact to the State's Congressional delegation, 
     Governor, and Legislature at least 45 days before the 
     effective date of the covered action.
       (d) Definitions.--In this section, the following 
     definitions apply:
       (1) Administrator.--The term ``Administrator'' means the 
     Administrator of the Environmental Protection Agency.
       (2) Covered action.--The term ``covered action'' means any 
     of the following actions taken by the Administrator under the 
     Federal Water Pollution Control Act (33 U.S.C. 1201 et seq.):
       (A) Issuing a regulation, policy statement, guidance, 
     response to a petition, or other requirement.
       (B) Implementing a new or substantially altered program.
       (3) More than a de minimis negative impact.--The term 
     ``more than a de minimis negative impact'' means the 
     following:
       (A) With respect to employment levels, a loss of more than 
     100 jobs. Any offsetting job gains that result from the 
     hypothetical creation of new jobs through new technologies or 
     government employment may not be used in the job loss 
     calculation.
       (B) With respect to economic activity, a decrease in 
     economic activity of more than $1,000,000 over any calendar 
     year. Any offsetting economic activity that results from the 
     hypothetical creation of new economic activity through new 
     technologies or government employment may not be used in the 
     economic activity calculation.

     SEC. 4. IDENTIFICATION OF WATERS PROTECTED BY THE CLEAN WATER 
                   ACT.

       (a) In General.--The Secretary of the Army and the 
     Administrator of the Environmental Protection Agency may 
     not--
       (1) finalize, adopt, implement, administer, or enforce the 
     proposed guidance described in the notice of availability and 
     request for comments entitled ``EPA and Army Corps of 
     Engineers Guidance Regarding Identification of Waters 
     Protected by the Clean Water Act'' (EPA-HQ-OW-2011-0409) (76 
     Fed. Reg. 24479 (May 2, 2011)); and
       (2) use the guidance described in paragraph (1), any 
     successor document, or any substantially similar guidance 
     made publicly available on or after December 3, 2008, as the 
     basis for any decision regarding the scope of the Federal 
     Water Pollution Control Act (33 U.S.C. 1251 et seq.) or any 
     rulemaking.
       (b) Rules.--The use of the guidance described in subsection 
     (a)(1), or any successor document or substantially similar 
     guidance made publicly available on or after December 3, 
     2008, as the basis for any rule shall be grounds for vacating 
     the rule.

     SEC. 5. LIMITATIONS ON AUTHORITY TO MODIFY STATE WATER 
                   QUALITY STANDARDS.

       (a) State Water Quality Standards.--Section 303(c)(4) of 
     the Federal Water Pollution Control Act (33 U.S.C. 
     1313(c)(4)) is amended--
       (1) by redesignating subparagraphs (A) and (B) as clauses 
     (i) and (ii), respectively;
       (2) by striking ``(4)'' and inserting ``(4)(A)'';
       (3) by striking ``The Administrator shall promulgate'' and 
     inserting the following:
       ``(B) The Administrator shall promulgate;'' and
       (4) by adding at the end the following:
       ``(C) Notwithstanding subparagraph (A)(ii), the 
     Administrator may not promulgate a revised or new standard 
     for a pollutant in any case in which the State has submitted 
     to the Administrator and the Administrator has approved a 
     water quality standard for that pollutant, unless the State 
     concurs with the Administrator's determination that the 
     revised or new standard is necessary to meet the requirements 
     of this Act.''.
       (b) Federal Licenses and Permits.--Section 401(a) of such 
     Act (33 U.S.C. 1341(a)) is amended by adding at the end the 
     following:
       ``(7) With respect to any discharge, if a State or 
     interstate agency having jurisdiction over the navigable 
     waters at the point where the discharge originates or will 
     originate determines under paragraph (1) that the discharge 
     will comply with the applicable provisions of sections 301, 
     302, 303, 306, and 307, the Administrator may not take any 
     action to supersede the determination.''.

     SEC. 6. STATE AUTHORITY TO IDENTIFY WATERS WITHIN ITS 
                   BOUNDARIES.

       Section 303 of the Federal Water Pollution Control Act (33 
     U.S.C. 1313) is amended by striking subsection (d)(2) and 
     inserting the following:
       ``(2)(A) Each State shall submit to the Administrator from 
     time to time, with the first such submission not later than 
     180 days after the date of publication of the first 
     identification of pollutants under section 304(a)(2)(D), the 
     waters identified and the loads established under paragraphs 
     (1)(A), (1)(B), (1)(C), and (1)(D) of this subsection. The 
     Administrator shall approve the State identification and load 
     or announce his disagreement with the State identification 
     and load not later than 30 days after the date of submission 
     and if--
       ``(i) the Administrator approves the identification and 
     load submitted by the State in accordance with this 
     subsection, such State shall incorporate them into its 
     current plan under subsection (e); and
       ``(ii) the Administrator announces his disagreement with 
     the identification and load submitted by the State in 
     accordance with this subsection he shall submit, not later 
     than 30 days after the date that the Administrator announces 
     his disagreement with the State's submission, to such State 
     his written recommendation of those additional waters that he 
     identifies and such loads for such waters as he believes are 
     necessary to implement the water quality standards applicable 
     to such waters.
       ``(B) Upon receipt of the Administrator's recommendation 
     the State shall within 30 days either--
       ``(i) disregard the Administrator's recommendation in full 
     and incorporate its own identification and load into its 
     current plan under subsection (e);
       ``(ii) accept the Administrator's recommendation in full 
     and incorporate its identification and load as amended by the 
     Administrator's recommendation into its current plan under 
     subsection (e); or
       ``(iii) accept the Administrator's recommendation in part, 
     identifying certain additional waters and certain additional 
     loads proposed by the Administrator to be added to such 
     State's identification and load and incorporate the such 
     State's identification and load as amended into its current 
     plan under subsection (e).
       ``(C)(i) If the Administrator fails to either approve the 
     State identification and load or announce his disagreement 
     with the State identification and load within the time 
     specified in this subsection then such State's identification 
     and load is deemed approved and such State shall incorporate 
     the identification and load that it submitted into its 
     current plan under subsection (e).
       ``(ii) If the Administrator announces his disagreement with 
     the State identification and load but fails to submit his 
     written recommendation to the State within 30 days as 
     required by subparagraph (A)(ii) then such

[[Page S3096]]

     State's identification and load is deemed approved and such 
     State shall incorporate the identification and load that it 
     submitted into its current plan under subsection (e).
       ``(D) This section shall apply to any decision made by the 
     Administrator under this subsection issued on or after March 
     1, 2013.''.

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