[Congressional Record Volume 161, Number 117 (Friday, July 24, 2015)]
[Senate]
[Pages S5694-S5696]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2348. Mr. BARRASSO (for himself, Mr. Donnelly, Mr. Roberts, Ms.
Heitkamp, Mr. Sullivan, and Mr. Manchin) submitted an amendment
intended to be proposed by him to the bill H.R. 22, to amend the
Internal Revenue Code of 1986 to exempt employees with health coverage
under TRICARE or the Veterans Administration from being taken into
account for purposes of determining the employers to which the employer
mandate applies under the Patient Protection and Affordable Care Act;
which was ordered to lie on the table; as follows:
At the end of division F, add the following:
TITLE LXII--FEDERAL WATER QUALITY PROTECTION ACT
SEC. 62001. SHORT TITLE.
This title may be cited as the ``Federal Water Quality
Protection Act''.
SEC. 62002. DEFINITIONS.
In this title:
(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) Lawfully constructed and operated water management
system.--
(A) In general.--The term ``lawfully constructed and
operated water management system'' means a system that was
built or operated outside of water that meets the definition
of the term ``waters of the United States'' or, if
constructed and operated in such water, the system--
(i) is authorized by a permit issued under section 404 of
the Federal Water Pollution Control Act (33 U.S.C. 1344);
(ii) was constructed or operated before the effective date
of initial regulations implementing section 404 of that Act
(33 U.S.C. 1344);
(iii) was constructed or operated under an exemption from
permitting described in subparagraph (A) or (C) of section
404(f)(1) of that Act (33 U.S.C. 1344(f)(1));
(iv) is a system that manages only irrigation return flow
that is exempt from permitting under section 402(l)(1) of
that Act (33 U.S.C. 1342(l)(1)); or
(v) is a system that manages only agricultural stormwater
or return flows from irrigated agriculture exempt from
permitting under section 502(14) of that Act (33 U.S.C.
1362(14)).
(B) Inclusions.--The term ``lawfully constructed and
operated'' includes a system described in subparagraph (A)
that is--
(i) a ditch that collects water from roads, runways,
parking lots, agricultural fields, forests, and other land or
infrastructure;
(ii) an irrigation water ditch or canal;
(iii) a stormwater system;
(iv) a flood water system;
(v) a wastewater system;
(vi) a water supply system;
(vii) a spreading basin for aquifer storage and recovery or
aquifer recharge;
(viii) an irrigated field;
(ix) a cranberry growing field; or
(x) a rice production field.
(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) 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.
(8) Secretary.--The term ``Secretary'' means the Secretary
of the Army.
(9) 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)).
(10) 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
[[Page S5695]]
(ii) the movement of water through soil, permafrost,
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.
(11) 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).
(12) 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. 62003. 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 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 should include--
(A) traditional navigable waters and interstate waters;
(B) tributaries of navigable waters that are streams that
contribute flow in a normal year through a surface hydrologic
connection to a traditional navigable water of sufficient
volume, duration, and frequency that pollutants in the reach
of the tributary would degrade the water quality of the
traditional navigable water, based on quantifiable and
statistically valid measure of flow for the geographic area;
and
(C) 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.
(2) 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, permafrost, and groundwater;
(B) water that is not located within navigable water,
interstate water, a territorial sea, a river, a stream, a
lake, a pond, or a wetland;
(C) a stream that does not contribute flow to navigable
water, as described in paragraph (1)(B);
(D) an isolated pond, whether natural or manmade, including
a farm pond, fish pond, livestock watering pond, quarry, mine
pit, ornamental pond, swimming pool, construction pit, fire
control pond, sediment pond, manure lagoon, and any other
isolated facility or system that holds water;
(E) a lawfully constructed and operated water management
system, other than a system component that is a traditional
navigable water;
(F) waste treatment systems; and
(G) 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)).
(3) 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 dispersal of plant seeds and insect eggs through
ingestion and excretion by birds and mammals does not provide
a basis for establishing Federal jurisdiction under the
Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.);
(C) 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
(D) 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.).
(4) 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
describes the means by which the proposed regulation, if
finalized, would
[[Page S5696]]
achieve compliance with the laws and Executive orders
described in paragraphs (1) through (5).
(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. 62004. 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. 62005. REPORT TO CONGRESS.
Not later than the date that is 3 years after the date of
promulgation of a regulation pursuant to section 620003, 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. 62006. EFFECT OF TITLE.
(a) Permitting Authority.--Nothing in this title 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 title 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 title
places any limitation on the scope of water subject to State
jurisdiction under State law.
______