[Congressional Record Volume 161, Number 163 (Tuesday, November 3, 2015)]
[Senate]
[Pages S7726-S7728]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 2762. Mr. FLAKE submitted an amendment intended to be proposed by 
him to the bill S. 1140, to require the Secretary of the Army and the 
Administrator of the Environmental Protection Agency to propose a 
regulation revising the definition of the term ``waters of the United 
States'', and for other purposes; which was ordered to lie on the 
table; as follows:

       Strike section 5 and insert the following:

     SEC. 5. SUPPLEMENTAL SCIENTIFIC REVIEW AND ADVISORY 
                   COMMITTEE.

       (a) Supplemental Scientific Review Panel.--
       (1) Establishment.--The Secretary and the Administrator 
     shall establish a panel, to be known as the ``Supplemental 
     Scientific Review Panel'' (referred to in this subsection as 
     the ``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

[[Page S7727]]

     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.
       (b) 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'' (referred to 
     in this subsection as the ``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 (a)(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 
     (a)(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, including the 
     measures of flow described in paragraphs (2)(C) and (3)(E) of 
     section 4(b);
       (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

[[Page S7728]]

     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.
       (c) Revised Definition.--A revision to or guidance on a 
     regulatory definition described in section 4(a) shall have no 
     force or effect until after the Secretary and the 
     Administrator carry out each action described in this 
     section.

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